People v. Ortiz CA4/1

DISCUSSION

I

WAIVER OF APPELLATE RIGHTS

The People contend that Ortiz waived his right to raise the current issues on appeal

by initialing the "Appeal Rights" section of the change of plea form. We disagree.

The waiver section states: "I give up my right to appeal the following: 1) denial

of my 1538.5 motion, 2) issues related to strike priors (under PC sections 667(b)-(i) and

1170.12), and 3) any sentence stipulated herein." The People argue that since the

decision in this case was whether the New York conviction would qualify as a serious

felony in California that he has waived his appeal rights because the decision would be

whether the conviction was a "strike." We do not pause long with this argument.

At no time did the prosecution plead that the New York prior was a strike under

sections 667, subdivisions (b) through (i) or 1170.12. Since there was no allegation in the

2 The facts of the underlying offenses are irrelevant to the issues in this appeal. Therefore we will omit the traditional statement of facts. 3 pleadings that there was a "strike" or that the enumerated code sections applied, there is

no basis for us to find, or imply a waiver of appellate…