PEOPLE v. MENDEZ

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Court of Appeal, Fourth District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. Trino Villa MENDEZ, Defendant and Appellant.

No. E017322.

Decided: October 22, 1997

Phillip I. Bronson, under appointment by the Court of Appeal, Encino, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Esteban Hernandez and Jeffrey J. Koch, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

Defendant Trino Villa Mendez (defendant) was charged with one count of murder (Pen.Code, § 187, subd. (a)), with a personal deadly weapon use enhancement (Pen.Code, § 12022, subd. (b)), and one count of kidnapping (Pen.Code, § 207, subd. (a)).   A prior serious felony conviction enhancement (Pen.Code, § 667, subd. (a)) and a prior prison term enhancement (Pen.Code, § 667.5, subd. (b)) were also alleged.   Pursuant to a plea bargain, defendant pleaded guilty to second degree murder.   All other charges and allegations were dismissed.   On November 9, 1995, he was sentenced to 15 years to life in prison.

Defendant's trial counsel filed a timely notice of appeal, which recited, “This appeal is based on the sentence or other matters occurring after the plea.”   On December 12, 1995, the record on appeal was filed.   On December 29, 1995, we appointed appellate counsel.   On May 2, 1996, defendant's appellate counsel filed an application for a certificate of probable cause.   On May 8, 1996, the trial court issued the requested certificate.

Defendant contends:  (1) after he was found incompetent to stand trial, and was thereafter certified competent and returned to court for trial, the trial court erred by failing to hold a hearing into whether he was indeed competent;  or alternatively, Penal Code section 1372, subdivision (c), is unconstitutionally vague with respect to whether such a hearing is required;  and (2) the trial court erred in calculating presentence custody credits.

In the published portion of this opinion, we hold defendant's first contention is barred because it goes to the validity of his guilty plea, and he failed to request a certificate of probable cause within 60 days after the judgment was rendered.  (Pen.Code, § 1237.5;  Cal. Rules of Court, rule 31(d).) 1  We therefore respectfully disagree with People v. Clark (1996) 51 Cal.App.4th 575, 59 Cal.Rptr.2d 234 and People v. Vento (1989) 208 Cal.App.3d 876, 256 Cal.Rptr. 497.   In the unpublished portion of this opinion, we hold defendant's second contention is barred because he failed to raise it in the trial court.  (Pen.Code, § 1237.1.)

I

FAILURE TO MAKE A TIMELY REQUEST FOR A CERTIFICATE OF PROBABLE CAUSE

On our own motion, we noted that the certificate of probable cause was untimely, and we asked the parties to file supplemental briefs addressing the significance of this fact.  [Order filed 9/4/97] We conclude it requires us to dismiss this appeal.

Penal Code section 1237.5 (section 1237.5) provides, as pertinent here:  “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty ․, except where both of the following are met:

“(a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.

“(b) The trial court has executed and filed a certificate of probable cause for such appeal with the county clerk.”

“Notwithstanding the broad language of section 1237.5, it is settled that two types of issues may be raised in a guilty or nolo contendere plea appeal without issuance of a certificate:  (1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m);  and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.  [Citations.]”  (People v. Panizzon (1996) 13 Cal.4th 68, 74-75, 51 Cal.Rptr.2d 851, 913 P.2d 1061.)

The first paragraph of rule 31(d) implements section 1237.5.   It provides, as pertinent here:  “If a judgment of conviction is entered upon a plea of guilty ․, the defendant shall, within 60 days after the judgment is rendered, file as an intended notice of appeal the statement required by section 1237.5 of the Penal Code;  but the appeal shall not be operative unless the trial court executes and files the certificate of probable cause required by that section.   Within 20 days after the defendant files the statement the trial court shall execute and file either a certificate of probable cause or an order denying a certificate․”  (Italics added.)

The second paragraph of rule 31(d) implements the judicially recognized exceptions to section 1237.5.   It provides:  “If the appeal from a judgment of conviction entered upon a plea of guilty ․ is based solely upon grounds (1) occurring after entry of the plea which do not challenge its validity or (2) involving a search and seizure, the validity of which was contested pursuant to section 1538.5 of the Penal Code,the provisions of section 1237.5 of the Penal Code ․ are inapplicable, but the appeal shall not be operative unless the notice of appeal states that it is based upon such grounds.”

 “The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty ․ pleas.  [Citations.]   The objective is to promote judicial economy ‘by screening out wholly frivolous guilty ․ plea appeals before time and money is spent preparing the record and the briefs for consideration by the reviewing court.’  [Citations.]”  (People v. Panizzon, supra, 13 Cal.4th at pp. 75-76, 51 Cal.Rptr.2d 851, 913 P.2d 1061, quoting People v. Hoffard (1995) 10 Cal.4th 1170, 1179, 43 Cal.Rptr.2d 827, 899 P.2d 896.)

 “Where a criminal appellant has not complied with rule 31(d), either by obtaining a certificate (first paragraph) or by stating noncertificate grounds in the notice of appeal (second paragraph), the appeal is not ‘operative.’   No record should be prepared and no briefing undertaken for such an inoperative appeal, which is subject to dismissal on the respondent's or the court's own motion.   Even when the record has mistakenly been prepared and briefs filed, the appellant should have no expectation that the inoperative appeal will be heard on its merits.”  (People v. Jones (1995) 10 Cal.4th 1102, 1108, 43 Cal.Rptr.2d 464, 898 P.2d 910, fn. omitted.)

 Where a criminal appellant has complied with the second paragraph of rule 31(d), by filing a notice of appeal stating the appeal is based on grounds for which a certificate of probable cause is not required (“noncertificate” grounds), technically the appeal is operative.   As a result, a record will be prepared.   The appellant nevertheless may not raise any grounds for which a certificate of probable cause is required (“certificate” grounds) unless he or she has also complied with the first paragraph of rule 31(d), by obtaining a certificate of probable cause.  (People v. Hoffard, supra, 10 Cal.4th at p. 1180, fn. 8, 43 Cal.Rptr.2d 827, 899 P.2d 896;  People v. Jones, supra, 10 Cal.4th at p. 1112 and 1112, fn. 5, 43 Cal.Rptr.2d 464, 898 P.2d 910.)  “In such a case, to entertain the plea validity issues on their merits risks countenancing ‘an apparently deliberate attempt to bypass statutory procedures and obtain appellate review of [the certificate-requiring issue] improperly.’  [Citations.]”  (People v. Jones, supra, 10 Cal.4th at p. 1112, 43 Cal.Rptr.2d 464, 898 P.2d 910, brackets in original, quoting People v. Guzman (1991) 226 Cal.App.3d 1060, 1065, 277 Cal.Rptr. 286.)

 Here, defendant is attempting to raise a certificate issue, but failed to comply with the first paragraph of rule 31(d).   Defendant contends the 60-day time limit is invalid because it is inconsistent with section 1237.5, which has no time limit at all.   Admittedly, “[a] court rule is without effect to the extent it is ‘inconsistent with statute.’  [Citations.]”  (People v. Rosbury (1997) 15 Cal.4th 206, 210, 61 Cal.Rptr.2d 635, 932 P.2d 207;  accord People v. Hall (1994) 8 Cal.4th 950, 960, 35 Cal.Rptr.2d 432, 883 P.2d 974.)   In determining whether a rule of court is inconsistent with statute, we must “measure[ ] the challenged rule against the statutory scheme to determine whether the rule [is] consistent with the intent expressed in the legislative enactment.”  (California Court Reporters Assn. v. Judicial Council of California (1995) 39 Cal.App.4th 15, 24, 46 Cal.Rptr.2d 44.)

 As already discussed, the legislative intent behind section 1237.5 is to prevent the unnecessary expenditure of judicial resources on frivolous appeals by defendants who have pleaded guilty.   Rule 31(d) provides that a defendant who has pleaded guilty may file a request for a certificate of probable cause, in lieu of a notice of appeal, within 60 days after judgment is rendered.   Obviously, this is intended to parallel rule 31(a), which provides that a defendant may file a notice of appeal within 60 days after judgment is rendered.   Giving a defendant who has pleaded guilty more time to appeal than a defendant who has not pleaded guilty would violate the legislative intent behind section 1237.5.   We conclude rule 31(d) appropriately supplements, and is not inconsistent with, section 1237.5.

 Defendant also contends dismissal is not required because he did obtain a certificate of probable cause, albeit belatedly.   He relies on People v. Clark, supra, 51 Cal.App.4th 575, 59 Cal.Rptr.2d 234 and People v. Vento, supra, 208 Cal.App.3d 876, 256 Cal.Rptr. 497.   In Clark, the defendant's notice of appeal indicated he would be raising both certificate and noncertificate issues.   The trial court denied his application for a certificate of probable cause, but, as here, because the notice of appeal indicated the defendant was raising noncertificate issues, the trial court clerk proceeded to prepare the record.   The defendant's appellate counsel then filed a second, untimely application for a certificate of probable cause, which the trial court granted.  (People v. Clark, supra, 51 Cal.App.4th at pp. 579-580, 59 Cal.Rptr.2d 234.)

The appellate court refused to dismiss the appeal.   It explained:  “[T]he Supreme Court in In re Brown [ (1973) ] 9 Cal.3d [679,] 683, footnote 6 [108 Cal.Rptr. 801, 511 P.2d 1153], recognized that an appeal may properly lie notwithstanding noncompliance with section 1237.5:  ‘We do not question the propriety of appellate review in other, unusual circumstances, as where without compliance with section 1237.5 the clerk prepares and the trial court certifies a record on appeal in circumstances where to have denied a certificate had an application therefor been made would have constituted an abuse of discretion.  [Citation.]’ ”  (People v. Clark, supra, 51 Cal.App.4th at p. 580, 59 Cal.Rptr.2d 234.)   It concluded:  “While ․ failure to secure a certificate of probable cause is generally fatal to the appealability of an appeal based on the validity of the plea [citation], the circumstances of this case do not require us to dismiss the appeal.   First of all, a certificate of probable cause was secured, albeit tardily by appellate counsel․   Second, the record on appeal was prepared here, which, of course, allowed appellate counsel to identify a nonfrivolous issue with respect to the plea and obtain a certificate of probable cause.”  (Ibid.)

Similarly, in Vento, the court stated:  “We deem it appropriate to reach the merits of Vento's appeal [citation] despite the fact that he did not obtain a certificate of probable cause ․ until more than 60 days after the rendition of judgment ․ [citation].   A strong policy favors the disposition of appeals on their merits rather than dismissal for a technical defect.  [Citation.]   Here, the appellate record was certified, which constituted an implied acknowledgement of probable cause for the appeal.  [Citation.]   Also, we are reluctant to penalize Vento for what appears to be trial counsel's failure to conform to the applicable time limits.”  (People v. Vento, supra, 208 Cal.App.3d at p. 878, fn. 1, 256 Cal.Rptr. 497.)

We respectfully decline to follow Clark and Vento, because we do not find their reasoning persuasive.   First, we see no relevant distinction between requesting a certificate of probable cause belatedly and failing to request one at all.   In either case, the trial court must spend time and effort preparing the record before the defendant has made a showing that the appeal is potentially meritorious.   Admittedly, if an untimely request is ultimately granted, the trial court has found the appeal has some potential merit.   However, it is equally true that, when there has been no request at all, the appeal may nevertheless have potential merit.   If we were to give effect to untimely requests, the category of cases in which there has been no request at all would swiftly disappear:  the moment the absence of a request became an issue, appellate counsel would file one.   The 60-day time limit in rule 31(d) would become meaningless.

Second, we find the fact that the record has been prepared to be equally irrelevant.   Some older cases held the fact that the trial court had prepared and certified the appellate record to be an implied certification of probable cause for the appeal.   For example, in People v. Herrera (1967) 66 Cal.2d 664, 58 Cal.Rptr. 319, 426 P.2d 887, the defendant filed a notice of appeal, together with a proper and timely request for a certificate of probable cause.   The trial court failed to act on the request within the required time.   However, the trial court did certify the record on appeal. (Id., at p. 665, 58 Cal.Rptr. 319, 426 P.2d 887.)   The Supreme Court held the appeal properly filed:  “By approving the transcript on appeal, the trial judge in effect certified defendant's case for appeal.   As a result, defendant, who had filed the required statement with the trial court, should not be penalized for the trial court's failure to file a certificate of probable cause.”  (Ibid.)

Similarly, in People v. Warburton (1970) 7 Cal.App.3d 815, 86 Cal.Rptr. 894, cert. den. (1971) 400 U.S. 1022, 91 S.Ct. 587, 27 L.Ed.2d 634, the court held:  “The record on appeal does not contain a certificate of probable cause, as it should if one had been filed.  [Citation.]   Nevertheless the clerk prepared a record and the superior court certified it․   Had defendant requested a certificate of probable cause, it would have been an abuse of discretion for the superior court to have refused it.   Under these circumstances some appellate courts have held that compliance section 1237.5 is not required.  [Citations.]”  (Id., at p. 820, 86 Cal.Rptr. 894; see also People v. Coley (1968) 257 Cal.App.2d 787, 793, 65 Cal.Rptr. 559 [“here, where the transcripts were approved by the trial judge, there is an implied acknowledgement of probable cause for the appeal․”], disapproved on other grounds in People v. Delles (1968) 69 Cal.2d 906, 910, 73 Cal.Rptr. 389, 447 P.2d 629.)

In In re Brown (1973) 9 Cal.3d 679, 108 Cal.Rptr. 801, 511 P.2d 1153, in dictum, the Supreme Court said:  “We do not question the propriety of appellate review in other, unusual circumstances, as where without compliance with section 1237.5 the clerk prepares and the trial court certifies a record on appeal in circumstances where to have denied a certificate had an application therefor been made would have constituted an abuse of discretion.  (See People v. Warburton, supra, 7 Cal.App.3d 815, 820, 86 Cal.Rptr. 894.)”  (In re Brown, supra, 9 Cal.3d at p. 683, fn. 6, 108 Cal.Rptr. 801, 511 P.2d 1153.)

Finally, in People v. Holland (1978) 23 Cal.3d 77, 151 Cal.Rptr. 625, 588 P.2d 765 the Supreme Court stated the following general rule:  “[I]f the trial court has, by its statements or conduct, in effect certified the appeal, appellate review is proper.   For example, this court has held that where ‘․ the clerk prepares and the trial court certifies a record on appeal in circumstances where to have denied a certificate ․ would have constituted an abuse of discretion,’ the appellate court must review appellant's contentions.  (In re Brown, supra, 9 Cal.3d at p. 683, fn. 6, 108 Cal.Rptr. 801, 511 P.2d 1153.)”  (People v. Holland, supra, 23 Cal.3d at pp. 84-85, 151 Cal.Rptr. 625, 588 P.2d 765, fn. omitted.)

In Holland, the defendant had filed a notice of appeal indicating he was proceeding on noncertificate grounds.   However, he filed a request in the trial court for documents and transcripts not included in the normal record.  (See rules 33(a), 33(b).)   Many of the documents and transcripts he requested were irrelevant to his noncertificate ground for appeal, and relevant solely to the certificate ground he ultimately asserted.   The Supreme Court concluded:  “The inclusion of these documents in the record lodged with the Court of Appeal was sufficient to certify for appeal the contention that appellant was denied the right to counsel.”  (People v. Holland, supra, 23 Cal.3d at p. 86, 151 Cal.Rptr. 625, 588 P.2d 765.)   Thus, it held:  “This case satisfies the requirements identified in Brown.”  (Id., at p. 85, 151 Cal.Rptr. 625, 588 P.2d 765.)

Here, the fact that the record has been prepared and certified cannot be construed as an implied certificate of probable cause.   Rule 35, which governs the preparation of the appellate record in criminal cases, used to require the trial judge to certify the record.2  Amendments in 1971 and 1972, however, rewrote rule 35 so as to transfer the task of certifying the record from the trial judge to the court clerk and the court reporter.3  Herrera and Warburton were decided under the old version of rule 35.   Although it is unclear whether Brown was decided under the old or the new version, it relied on Warburton, and it stated a rule (in dictum) which applied only if “the clerk prepares and the trial court certifies a record on appeal․”  (In re Brown, supra, 9 Cal.3d at p. 683, fn. 6, 108 Cal.Rptr. 801, 511 P.2d 1153, italics added.)   Finally, although Holland was decided under the new version of rule 35, there the defendant filed a request for documents outside the normal record, so the trial court became involved in preparing and certifying the record.   We do not find any of these cases controlling where, pursuant to the current version of rule 35, the court clerk and court reporter have certified the record without any involvement by the trial judge.

Also, even assuming certification of the record by the court clerk, rather than by the trial judge, could be treated as an implied finding of some kind, under the circumstances here certification does not reflect on the merits of the appeal.   In Herrera, as we have already noted, the defendant's request for a certificate of probable cause was pending and undecided when the trial judge certified the record.   Thus, it was reasonable to treat the trial judge's certification of the record as in implied ruling on the request.   In Warburton, the appellate court found it would have been an abuse of discretion to deny a certificate of probable cause.   Finally, in Holland, the defendant requested that documents and transcripts be included in the record which were relevant solely to certificate issues, and the trial judge granted his request.

Here, defendant did not request a certificate of probable cause until after the record had already been prepared.   He indicated in his notice of appeal that he was appealing on noncertificate grounds.   Obviously, this is why the court clerk proceeded to prepare and to certify the record.   Defendant did not request the inclusion of any documents outside the normal record.   Thus, the only finding that may reasonably be implied is that defendant was proceeding, as he claimed, on noncertificate grounds.

Third, unlike the court in Vento, we are forbidden to relax the requirements of section 1237.5 out of a concern that defendant may be penalized for his counsel's mistake.   We note that this concern exists, not only where the defendant's counsel has filed a belated request for a certificate of probable cause, but also where counsel has failed to request a certificate of probable cause at all.   Nevertheless, in People v. Panizzon, supra, 13 Cal.4th 68, 51 Cal.Rptr.2d 851, 913 P.2d 1061, the Supreme Court held:  “It has not escaped our attention that some appellate courts have proceeded to address the merits of a defendant's appeal following a guilty or nolo contendere plea despite the defendant's failure to strictly comply with section 1237.5 and rule 31(d).  [Citations.]   Reasoning that improperly presented appellate issues could return in the form of a petition for a writ of habeas corpus, such courts chose to dispose of the issues on their merits in the apparent belief that the ‘interest of judicial economy’ would be served thereby.  [Citations.]   We agree, however, with those other appellate courts that condemn such practice as frustrating the very purpose of section 1237.5 to discourage frivolous appeals.  [Citations.]   As one such court astutely observed, the purposes behind section 1237.5 will remain vital only if appellate courts insist on compliance with its procedures.  [Citations.]”   (Id., at p. 89, fn. 15, 51 Cal.Rptr.2d 851, 913 P.2d 1061;  see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267, 62 Cal.Rptr.2d 437, 933 P.2d 1134 [unless record explains why counsel provided assertedly ineffective assistance, or unless there could be no satisfactory explanation, “[a] claim of ineffective assistance ․ is more appropriately decided in a habeas corpus proceeding.”].)4

In obedience to Panizzon, we must insist on compliance with the procedures of section 1237.5, including the 60-day time limit of rule 31(d).   We are not in a position to determine whether trial counsel's failure to request a certificate of probable cause amounted to constitutionally ineffective assistance of counsel.5  Defendant remains free to obtain such a determination by filing a petition for writ of habeas corpus.

Defendant is barred from raising any contention going to the validity of his guilty plea.   In the unpublished portion of this opinion, we conclude he is similarly barred from raising his only contention which does not go to the validity of his guilty plea.   We conclude the appeal in its entirety must be dismissed.

II

CALCULATION OF PRESENTENCE CUSTODY CREDITS **

III

DISPOSITION

The appeal is dismissed.

FOOTNOTES

1.   All further rule references are to the California Rules of Court.

2.   Former rule 35(c) provided:  “[T]he clerk shall deliver the original transcripts to the judge for his approval.   Unless a proposed correction is served and filed within five days after the delivery of the original transcripts to the judge, the judge shall certify on the original that no objection was made thereto within the time allowed by law, and shall immediately redeliver the transcripts to the clerk.   If a proposed correction is filed, the judge shall promptly determine the matter.   After corrections have been made, the judge shall certify that all objections made thereto have been determined, and that the transcripts have been corrected in accordance with such determination, and shall redeliver the transcripts to the clerk.”  (Historical Note, 23 West's Ann. Cal.Codes, pt. 1 (1996 ed.) Cal. Rules of Court, rule 35, p. 377.)

3.   Rule 35(a) provides:  “[T]he clerk shall prepare an original and two clearly legible copies of the clerk's transcript․   The clerk shall append to the original and each copy a certificate that it is correct.”Rule 35(b) provides:  “[T]he reporter shall prepare ․ the reporter's transcript ․, and shall append to the original and each copy a certificate that it is correct.”

4.   Even before Panizzon, we announced a similar view:  “The purpose of Penal Code section 1237.5 ․ is to weed out frivolous or meritless appeals.  [Citation.]   From time to time, perhaps more or less wisely, courts proceed to the merits of a purported appeal simply to discourage any subsequent petition for habeas corpus based upon ineffective assistance of counsel, especially if counsel can be blamed for failing to obtain the certificate or the appellate issue goes to the competence of trial counsel.  [Citations.]   We resist the temptation to do so.  [Citations.]”  (People v. Manriquez (1993) 18 Cal.App.4th 1167, 1171, 22 Cal.Rptr.2d 779, fn. omitted.)

5.   Defendant has never asked this court to relieve him from his failure to comply with rule 31(d).  (See rules 45(c) and 45(e);  People v. Jones, supra, 10 Cal.4th at p. 1108, fn. 4, 43 Cal.Rptr.2d 464, 898 P.2d 910, and cases cited;  People v. Ribero (1971) 4 Cal.3d 55, 65-66, 92 Cal.Rptr. 692, 480 P.2d 308;  People v. Breckenridge (1992) 5 Cal.App.4th 1096, 1101-1102, 8 Cal.Rptr.2d 1.)   Accordingly, we are not called upon to decide whether he would be entitled to such relief.

FOOTNOTE.   See footnote *, ante.

RICHLI, Associate Justice.

HOLLENHORST, Acting P.J., and GAUT, J., concur.