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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Wendale Levette JONES, Defendant and Appellant.

No. H010491.

Decided: June 20, 1994

Katrin B. Reimuller, San Francisco, (Under appointment by the Court of Appeal), for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald E. Niver, Supervising Deputy Atty. Gen. and Laurence K. Sullivan, Supervising Deputy Atty. Gen., for plaintiff and respondent.


Defendant Wendale Levette Jones was charged by information with possession of cocaine base for sale (Health & Saf.Code, § 11351.5;  count 1), transporting cocaine base (Health & Saf.Code, § 11352, subd. (a);  Pen.Code, § 1203.073, subd. (b)(6); count 2), and misdemeanor driving on a suspended license (Veh.Code, § 14601.1, subd. (a);  count 3).

Defendant moved to suppress evidence pursuant to Penal Code section 1538.5.1  The court denied the motion.   Defendant then entered a guilty plea on all counts.

The court granted probation.   Among other conditions of probation, the court imposed a restitution fine of $100, laboratory fees of $50 on each of counts 1 and 2, a drug education program fee of $100, and probation supervision fees not exceeding $20 per month.   The court also ordered defendant to pay $150 attorney fees.

We affirm.


On January 11, 1992, at 3:27 a.m., San Jose Police Officer Knox stopped defendant for speeding.   Defendant did not have a driver's license.   A radio check disclosed that defendant's driving license had been suspended and that defendant had a “small” outstanding warrant in Fresno County.

Knox asked defendant to step out of his car and approach the patrol car.   Defendant told Knox that he had been using narcotics that evening.   Knox also observed in defendant symptoms of substance abuse.   Knox arrested defendant for being under the influence of a controlled substance.

As Knox was handcuffing defendant, another officer arrived at the scene.   When Knox pat-searched defendant, he felt no weapons but felt what was “obviously a baggie of some type ․ down the front of [defendant's] pants.”   Knox decided to determine what was in the baggie.

Knox uncuffed defendant and asked him to pull his pants forward so that Knox “could see down them.”   Defendant unfastened his pants, exposing his underwear to Knox.   Knox shined his flashlight at the underwear, but saw nothing.   Knox told defendant to pull the underwear away from his body, which defendant did.   Knox shined his flashlight at the crotch area inside defendant's underwear and saw a plastic baggie.   Knox told defendant to remove the baggie.   Defendant did so.   Observing crack cocaine inside the baggie, Knox seized the baggie.

Knox did not touch defendant's skin, pants, or underwear.   Defendant's pants were never removed.   The period of time during which defendant's pants were unfastened lasted “a couple of minutes at the most.”   At the place where defendant was searched, which was on the south side of Santa Clara Street across from the construction site for the San Jose Arena, Knox did not see any person in or around any of the buildings except the other officer who was standing further back on the sidewalk.   Knox did not recall any traffic in the area.   Knox's patrol car was between defendant and the street.



A.–D.**E. Fees as Probation Conditions

Defendant contends that the trial court improperly imposed fees as conditions of probation by failing to make a determination of defendant's ability to pay or to pronounce them in the oral judgment.   Respondent claims that this issue cannot be entertained on appeal because defendant's notice of appeal fails to comply with the requirement of rule 31(d) of the California Rules of Court 2 that the grounds upon which the appeal is based must be stated in the notice of appeal.   Respondent is correct.

Rule 31(d) states, in pertinent part:  “If the appeal from a judgment of conviction entered upon a plea of guilty or nolo contendere is based solely upon grounds (1) occurring after entry of the plea which do not challenge its validity or (2) involving a search or 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 requiring a statement by the defendant and a certificate of probable cause by the trial court are inapplicable, but the appeal shall not be operative unless the notice of appeal states that it is based upon such grounds.”  (Emphasis added.)

The notice of appeal in this case reads, in relevant part:  “NOTICE IS HEREBY GIVEN that the defendant appeals the judgment entered in the above-entitled matter case based upon the grounds that the Court improperly denied his motion to suppress certain evidence pursuant to Penal Code section 1538.5 and/or 1539.”

As will be noted, the only ground stated as the basis for the appeal is the denial of defendant's suppression motion.   The validity of the imposition of fees as conditions of probation is not included in the notice of appeal.   Therefore, insofar as the appeal relates to probation conditions, the notice of appeal does not meet the statement requirement of rule 31(d).  Defendant admits so in his reply brief.   The question is whether such lack of compliance precludes consideration of the issue on appeal.

Relying on People v. Knauer (1988) 206 Cal.App.3d 1124, 1128–1130, 253 Cal.Rptr. 910, defendant argues that noncompliance with rule 31(d) “affect [s] only the process for preparation of the record by the superior court clerk,” but does not affect the “jurisdictional competency of this court to consider a cognizable appeal.”  (Id. at p. 1128, 253 Cal.Rptr. 910.)   In Knauer, the First Appellate District traced the history of rule 31(d) and concluded that “the specification of appropriate grounds in the notice of appeal is not a jurisdictional requirement.   Thus, if the clerk were to process the appeal even in the absence of such specification, the defective notice of appeal would not bar appellate review.   The defendant's failure to specify the requisite grounds—which in theory would indefinitely suspend preparation of the record—is not a jurisdictional defect and does not otherwise preclude consideration of the merits of the appeal.  [Citations.]”  (206 Cal.App.3d at p. 1130, 253 Cal.Rptr. 910.)

The First Appellate District's conclusion in Knauer was a reversal of the position it had earlier taken in People v. Ballard (1985) 174 Cal.App.3d 982, 220 Cal.Rptr. 323.   In Ballard, the First Appellate District had held that the rule 31(d) requirement was jurisdictional, and that the failure in the notice of appeal to state the grounds therefor rendered the appeal inoperative.  “The appropriate disposition for such an inoperative appeal is dismissal.  [Citations.]”  (174 Cal.App.3d at p. 985, 220 Cal.Rptr. 323.)

In People v. Earls (1992) 10 Cal.App.4th 184, 12 Cal.Rptr.2d 606, the Fifth Appellate District declined to follow Knauer.   The Earls court reasoned:  “Section 1237.5 establishes the jurisdictional limits of this court over appeals after a guilty plea and California Rules of Court, rule 31(d) implements that statutory requirement.  [Citation.]  Case law has long held ‘[I]f ․ section 1237.5 is to retain any viability in the statutory scheme, appellate courts cannot engage in a wholesale disregard of its procedural requirements.’  [Citation.]  To improve the administration of justice, the California Constitution requires the Judicial Council to adopt rules for court administration, practice and procedure ‘not inconsistent with statute.’  [Citation.]  Section 1237.5 clearly stated:  ‘No appeal shall be taken ․ except where the defendant has filed as part of the notice of appeal a written statement ․ showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.’   California Rules of Court, rule 31(d) created two exceptions to this requirement but nevertheless mandated ‘the appeal shall not be operative unless the notice of appeal states that it is based upon such grounds [i.e., grounds which come within the exceptions].’   The Knauer court's construction of California Rules of Court, rule 31(d) nullifies the viability of the statutory scheme by ignoring its procedural requirements.”  (10 Cal.App.4th at p. 193, 12 Cal.Rptr.2d 606.)

We are persuaded that Earls expresses the better view.   The Earls analysis comports with the view we expressed in People v. Brekenridge (1992) 5 Cal.App.4th 1096, 1101, 8 Cal.Rptr.2d 1, that “defendant's failure to comply with section 1237.5 precludes our review of his appeal.  [Citations.]”  In Brekenridge, we stated:  “ ‘[T]he better practice is to resist temptation to entertain the appeal and refuse to discuss the merits even though this might precipitate a collateral attack on the defendant's conviction.   To do otherwise only encourages defendants convicted by plea to flout Penal Code section 1237.5 and California Rules of Court, rule 31(d) and subverts a well-conceived procedural scheme.’  [Citations.]  ․  [¶] The purpose of section 1237.5 is to discourage and weed out frivolous or vexatious appeals following guilty pleas.  [Citations.]  Although the effectiveness of the statute ․ has been questioned [citation], it is inappropriate and unwise to let expediency outweigh the legislative command that makes compliance with section 1237.5 a condition precedent to an appellate attack on the validity of a guilty plea.   To resolve an appeal whether or not it is properly before the court simply because it has been filed, will, as the [People v. Zamora (1991) 230 Cal.App.3d 1627, 282 Cal.Rptr. 100] court observed, only encourage noncompliance with section 1237.5.”  (5 Cal.App.4th at pp. 1100–1101, 8 Cal.Rptr.2d 1.)

We conclude that defendant's failure to comply with rule 31(d) regarding the post-plea imposition of probation conditions precludes consideration of the merits of the issue in this appeal.


The judgment is affirmed.


1.   Further statutory references are to the Penal Code unless otherwise stated.

FOOTNOTE.   See footnote *, ante.

2.   Further references to “rule” or “rules” are to the California Rules of Court.

PREMO, Acting Presiding Justice.

ELIA and WUNDERLICH, JJ., concur.