Filed 2/10/16 P. v. Benavidez CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

ROSS BENAVIDEZ,

Defendant and Appellant.

 B267988

 (Los Angeles County

 Super. Ct. No. NA101734)

APPEAL from an order of the Superior Court of Los Angeles County, Laura L. 

Laesecke, Judge. Dismissed.

Sally P. Brajevich, under appointment by the Court of Appeal, for Defendant and 

Appellant.

No appearance for Plaintiff and Respondent.
2

Defendant, Ross Benavidez, purports to appeal after he was sentenced to prison. 

On July 23, 2015, defendant pled no contest to an auto theft charge and admitted he had 

previously been convicted of attempted murder. (Pen. Code, §§ 187, subd. (a), 664, subd. 

(a), 666.5, subd. (a), 667, subd. (e)(1) and 1170.12, subd. (c)(1).) Defendant’s probable 

cause certificate issuance request was denied. We recognized that potentially we may not 

have jurisdiction over this appeal as it resulted from a no contest plea. We have a duty to 

raise issues concerning our jurisdiction on our own motion. (Jennings v. Marralle (1994) 

8 Cal.4th 121, 126; Olson v. Cory (1983) 35 Cal.3d 390, 398.) Thus, we issued an order 

to show cause concerning possible dismissal of the appeal and placed the matter on 

calendar.

Defendant has failed to fully and timely comply with both Penal Code section 

1237.5 and California Rules of Court, rule 8.304(b) 1. (In re Chavez (2003) 30 Cal.4th 

643, 651 (Chavez); People v. Mendez (1999) 19 Cal.4th 1084, 1099; People v. 

Way (2003) 113 Cal.App.4th 733, 736.) Without a probable cause certificate, defendant 

cannot appeal. (People v. Kaanehe (1977) 19 Cal.3d 1, 8; People v. Ribero (1971) 4 

Cal.3d 55, 61; People v. West (1970) 3 Cal.3d 595, 600-601; People v. Ward (1967) 66 

Cal.2d 571, 574-576.) Moreover, the notice of appeal fails to comply with rule 

8.304(b)(4)(B) in that it does not state defendant is appealing from matters occurring after 

the plea which does not affect its validity. (People v. Mendez, supra, 19 Cal.4th at 

p. 1096; see People v. Fulton (2009) 179 Cal.App.4th 1230, 1235-1236, disapproved of 

on a related ground in People v. Maultsby (2012) 53 Cal.4th 296.) Here, defendant’s 

challenge is not to the sentence but to the plea agreement itself. An integral part of the 

plea agreement was the four-year sentence defendant received and thus the probable 

cause certificate requirement applies. (People v. Panizzon (1996) 13 Cal.4th 68, 76-79; 

People v. Cole (2001) 88 Cal.App.4th 850, 867; People v. McKnight (1985) 171 

 

1 Future references to a rule are to the California Rules of Court.
3

Cal.App.3d 620, 624.) Under these circumstances, without a probable cause certificate,

defendant cannot appeal. 

Defendant suggests he is entitled to relief from default for failure to have secured a 

probable cause certificate. Defendant relies upon the case of Chavez, supra, 30 Cal.4th at 

pages 652-657. Chavez is not controlling because: it squarely holds that relief from 

default may not be granted pursuant to former rule 45(e), now rule 8.60(d) (Chavez, 

supra, 30 Cal.4th at pp. 652-657); defendant is not entitled to relief from default because 

he has timely submitted a probable cause issuance request which was denied; and if he is 

seeking relief from default, he has not filed a proper motion. (Rules 8.50 & 8.54; People 

v. McEwen (2007) 147 Cal.App.4th 173, 179.)

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

KRIEGLER, J.

BAKER, J