PEOPLE v. FLORES

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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Benjamin Arturo FLORES, Defendant and Appellant.

No. H012232.

Decided: March 14, 1995

Ginaia Kelly (Under appointment by the Court of Appeal), Santa Cruz, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Thomas A. Brady and Lisa M. Castor, Deputies Atty. Gen., for plaintiff and respondent.

Defendant Benjamin Arturo Flores was charged by information with commercial burglary (Pen.Code, § 459;  count 1) 1 and receiving stolen property (§ 496;  count 2).

After defendant's motion to suppress evidence was denied, defendant pleaded nolo contendere to both counts, but reserved the right to appeal the denial of his motion.

The court convicted defendant of both burglary and receiving stolen property, and sentenced him to the middle term of two years for each count.   However, the sentence in count 2 was made concurrent to the sentence in count 1.   The court suspended the execution of the sentence for four years and placed defendant on probation for that term.

In his notice of appeal, defendant did not include a section 1237.5 statement of probable cause.

FACTS

On July 18, 1993, at about 2:53 a.m., Hollister Police Officer Becker issued a radio bulletin for police officers to be on the “lookout” for a suspect in a stabbing incident.   The bulletin described the suspect as an “Hispanic male adult, early to mid twenties, approximately five ten in height, 155 pounds, curly, short, dark hair wearing blue jeans and clean shaven.”   The bulletin was later updated to indicate that the suspect was riding a red 10–speed bicycle.

Three days later on July 21, 1993, at approximately 3:50 a.m., Becker, while on routine patrol, observed a young Hispanic male, subsequently identified as defendant, riding a “red ten speed” bicycle.   Becker testified that defendant “somewhat fit the description” of the man described in the bulletin.   At the time of the hearing of defendant's motion to suppress on November 5, 1993, defendant was 18 years old, 5 feet and 2 inches tall, weighed 130 pounds, and had short, dark, and straight hair.

Becker attempted to stop defendant by honking his horn twice.   Defendant looked back at Becker at each sound of the horn, but did not stop.   Becker forced defendant to stop by using his patrol car to cut off defendant's path.

Becker observed a bulge under defendant's sweatshirt.   Becker searched defendant for weapons, but found none.   Becker found concealed under defendant's shirt a Sony Walkman and a Duofone telephone answering machine.   Defendant told Becker the answering machine was a gift from his girlfriend.   Becker filled out a “field interrogation card,” and then allowed defendant to leave.

A few hours later, Becker received a radio call about a burglary at the Hollister Radio Shack store.   Among the items reported missing was a Duofone answering machine.   Becker went to defendant's home to locate defendant.   Finding defendant there, Becker advised defendant of his Miranda 2 rights.   Defendant waived his Miranda rights and confessed to the Radio Shack burglary.   Becker arrested defendant.

CONTENTIONS

In this appeal, defendant contends:

1. The trial court erred in denying his motion to suppress.

2. The trial court erred in convicting defendant of both burglary and possession of stolen property.

DISCUSSION

Motion to Suppress

 In contending that the trial court erroneously denied his motion to suppress, defendant argues that his detention by Becker was unreasonable because his appearance was not sufficiently similar to the description of the suspect given in the radio bulletin, and that he did not evade Becker.   The contention is without merit.

In People v. Miranda (1993) 17 Cal.App.4th 917, 922, 21 Cal.Rptr.2d 785, this court stated:  “In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court's ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence.   We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure.  [Citation.]”

California has long recognized that “ ‘circumstances short of probable cause to make an arrest may still justify an officer's stopping pedestrians or motorists on the streets for questioning.’  [Citation.]  To protect his safety, the officer may also be justified in requesting a suspect to submit to a superficial search for concealed weapons.  [Citation.]  The guiding principle in these temporary investigatory stops, as in all Fourth Amendment issues, is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.’  [Citation.]”  (People v. Rivera (1992) 8 Cal.App.4th 1000, 1006, 10 Cal.Rptr.2d 785.)

In In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957, the court described the process required to determine the reasonableness of the detention, as follows:  “[I]n order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity.   Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so:  the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question.   The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith.  [Citation.]”  (Footnote omitted.)

 In the instant case, Becker testified that what drew his attention to defendant was the “red ten speed bicycle” defendant was riding.   Defendant disputed Becker's description of the bicycle, claiming that the bicycle he was riding was “fluorescent orange and black.”   On this record, it is not possible to ascertain the actual color of the bicycle.   No picture of the bicycle was presented to the court, and there is no other evidence showing its color.   However, as a reviewing court, our duty is to “view the record in the light most favorable to the trial court's ruling.”  (People v. Miranda, supra, 17 Cal.App.4th at p. 922, 21 Cal.Rptr.2d 785.)

Becker also testified that when he saw defendant on a “red ten speed bicycle,” defendant's appearance “somewhat fit the description” of the suspect described in the radio bulletin.   Although defendant was considerably shorter and lighter than the bulletin description of the stabbing suspect, and defendant's hair was straight while that of the suspect was reportedly curly, the circumstances of time, place, and motion could have obscured any distinction based on those factors.   At predawn hours (3:50 a.m.), the height and weight of a person pedaling away in a biking position on a moving bicycle can reasonably be mistaken for those of a suspect of taller and heavier build, particularly where, as here, the officer's information about the suspect's appearance did not come from personal knowledge but from approximations supplied in a radio bulletin, and particularly where, as here, the officer was viewing the biker from behind.   And even if the bicycle defendant was riding was in fact fluorescent orange and black as defendant claimed, the color could have been reasonably mistaken for red in the darkness of night, again particularly where, as here, the officer's view of the bicycle was from behind.

Moreover, Becker attempted to stop defendant by honking his horn.   Defendant looked back at Becker, but did not stop.   Because defendant “somewhat fit” the description of the stabbing suspect and was also riding a red 10–speed bicycle, Becker could reasonably suspect that defendant was attempting to evade him.   “The fact of flight at the approach of the police may be relevant in assessing the existence of reasonable suspicion․  We agree with appellant that flight alone is insufficient to justify a detention.  [Citations.]  However, when coupled with other ‘specific knowledge on the part of the officer relating the suspect to the evidence of crime,’ flight has been considered in assessing the justification for an officer's actions.  [Citation.]”  (People v. McGriff (1990) 217 Cal.App.3d 1140, 1144, 266 Cal.Rptr. 429.)

On the totality of the evidence on record, we conclude there is substantial evidence to support the trial court's conclusion that Becker had an articulable, objectively reasonable basis for detaining defendant for investigative purposes.

Statement of Probable Cause

 Defendant contends his conviction of both burglary and possession of stolen property is unauthorized, and thus void.   We agree.

Section 496, subdivision (a), states in relevant part:  “A principal in the actual theft of the property may be convicted pursuant to this section.   However, no person may be convicted both pursuant to this section and of the theft of the same property.”

In People v. Stewart (1986) 185 Cal.App.3d 197, 203, 229 Cal.Rptr. 445, the court held that under section 496, “a thief cannot be convicted of receiving the property which he stole․  ‘Where the information charged burglary in one count and receiving stolen property in another count, there can be no lawful adjudication of guilt of the latter crime where the evidence shows that the property “received” was some or all of the identical property taken and asported in the burglary.’  [Citation.]”

In People v. Jaramillo (1976) 16 Cal.3d 752, 757, 758, 129 Cal.Rptr. 306, 548 P.2d 706, the court, stressing the “fundamental principle that one may not be convicted of stealing and of receiving the same property,” explained that under section 496 “ ‘[a] defendant may, of course, be charged with both crimes, but it is for the trier of fact to determine whether he is guilty as a thief or as a non-thief of concealing and withholding.’   [Citation.]”

In the instant case, because the trial court had convicted defendant of burglary, it could no longer under section 496 validly convict him of receiving the same stolen property.   The conviction it entered was void.  (People v. Loera (1984) 159 Cal.App.3d 992, 998, 206 Cal.Rptr. 60;  People v. Chagolla (1983) 144 Cal.App.3d 422, 434, 193 Cal.Rptr. 711.)  “It has been held repeatedly, and recently, that where a statute requires a court to exercise its jurisdiction in a particular manner, follow a particular procedure, or subject to certain limitations, an act beyond those limits is in excess of its jurisdiction.  [Citations.]  ․ Having no jurisdiction the judgment was ․ void.”  (Burtnett v. King (1949) 33 Cal.2d 805, 807, 205 P.2d 657.)  “A judgment, though entered in a case over which the court had jurisdiction over the parties and the subject matter, may be void in whole or in part because it granted some relief which the court had no power to grant.”  (Vasquez v. Vasquez (1952) 109 Cal.App.2d 280, 283, 240 P.2d 319.)

 Because the conviction was void, it is “subject to judicial correction whenever the error came to the attention of the trial court or a reviewing court.  [Citations.]”  (People v. Serrato (1973) 9 Cal.3d 753, 763, 109 Cal.Rptr. 65, 512 P.2d 289.)   The conviction may thus be appealed without the certificate of probable cause ordinarily required by section 1237.5.   As stated in People v. Loera, supra, 159 Cal.App.3d at page 998, 206 Cal.Rptr. 60:  “The imposition of a sentence which is unlawful, and consequently void, is a jurisdictional defect subject to correction whenever it comes to the attention of either a trial court or a reviewing court.  [Citations.]  We therefore conclude that defendant is not precluded from pressing his contention by virtue of his admission and previous inaction, or by his failure to secure a certificate of probable cause ordinarily required by section 1237.5.”

Section 1237.5 provides, in pertinent part:  “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, ․ 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.”

In concluding that section 1237.5 does not apply where the conviction is void under section 496, we are not unmindful of our decisions in People v. Arwood (1985) 165 Cal.App.3d 167, 211 Cal.Rptr. 307 and People v. Breckenridge (1992) 5 Cal.App.4th 1096, 8 Cal.Rptr.2d 1.

Arwood involved a sentencing enhancement issue.   In that case, the defendant entered a plea of nolo contendere to the charge of forcible rape;  he also admitted as true the allegation of prior felony conviction of assault with a deadly weapon.   On appeal, the defendant challenged the imposition of a five-year enhancement for his prior conviction on the basis that the offense of assault with a deadly weapon is not a “serious” felony within the meaning of section 667, and hence the enhancement based on that prior should be stricken.   The defendant did not include a certificate of probable cause.

We there held that the defendant's failure to obtain a certificate of probable cause effectively barred his challenge on appeal to the validity of the enhancement.  (People v. Arwood, supra, 165 Cal.App.3d at p. 172, 211 Cal.Rptr. 307.)   We rejected the defendant's contention that the five-year enhancement “goes only to the validity of the sentence imposed” and not to his plea (admission).  (Ibid.)  We reasoned that the “imposition of the enhancement related back to [defendant's] admission of the prior felony conviction, which occurred at the time he entered the plea.”  (Ibid.)  Nevertheless, “in the interest of judicial economy,” we proceeded to reach the merits of the appeal by treating the appeal as a petition for a writ of habeas corpus.  (Id. at p. 173, 211 Cal.Rptr. 307.)

Like Arwood, Breckenridge was a sentencing enhancement issue based on the defendant's admission of a prior felony conviction.   In Breckenridge, the defendant pleaded guilty to the charge of lewd conduct with a child, and admitted a prior serious felony conviction for a similar offense.   The court imposed a six-year enhancement for the prior serious felony conviction.   On appeal, the defendant sought reversal of the enhancement, contending that his admission of the prior was invalid “due to an inadequate advisement of rights.”  (People v. Breckenridge, supra, 5 Cal.App.4th at p. 1098, 8 Cal.Rptr.2d 1.)   As in Arwood, the defendant's appeal did not include a certificate of probable cause.

We held in Breckenridge that because the challenge was based on a claim of “inadequate advisement of rights,” it, like Arwood, related back to, and therefore implicated, the validity of his admission of the prior.  (5 Cal.App.4th at p. 1098, 8 Cal.Rptr.2d 1.)   Accordingly, appeal therefrom without a certificate of probable cause was precluded under section 1237.5.

However, while reaffirming Arwood's “relation back” analysis, in Breckenridge we did not follow Arwood 's solution of reaching the merits of the appeal by treating the appeal as a petition for a writ of habeas corpus “in the interest of judicial economy.”  (5 Cal.App.4th at p. 1100, 8 Cal.Rptr.2d 1.)   Instead, we took the hard line:  “ ‘When a defendant fails to satisfy the requirements of section 1237.5, and the record discloses no justification therefor, the appeal is not operative, and the appropriate disposition is dismissal.’  [Citations.]”  (Id. at p. 1099, 8 Cal.Rptr.2d 1.)   We criticized the practice of many courts, including our own decision in Arwood, “of first acknowledging a defendant's noncompliance with section 1237.5 and then using one device or another to circumvent the statute and reach the merits of the appeal in the interest of ‘judicial economy.’   [Citations.]”  (Id. at p. 1100, 8 Cal.Rptr.2d 1.)   Noting that the purpose of section 1237.5 is “to discourage and weed out frivolous or vexatious appeals following guilty pleas,” we counseled that “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.”  (Id. at p. 1101, 8 Cal.Rptr.2d 1, fn. omitted.)

The instant case, however, is factually and legally distinguishable from Arwood and Breckenridge.   First, the relation back analysis employed in those cases is inapposite to this case.   In Arwood and Breckenridge it was not possible for the defendants to overturn the sentence enhancements without first overturning the admissions upon which the enhancements were based.   Here, on the other hand, the conviction on the receiving charge can be overturned without overturning the plea to that charge.

To state the point more precisely, in Arwood the defendant's argument was:  since assault with a deadly weapon is not a serious felony within the meaning of section 667, his admission of that prior did nothing to authorize the imposition of the section 667 enhancement.   In Breckenridge the argument was:  since the defendant was not properly advised of his rights when he admitted the prior felony conviction, his admission of that prior did not authorize the imposition of the enhancement.   In both cases we concluded that since the enhancements could not be overthrown without overthrowing the admissions upon which they were based, both challenges to the enhancements implicated the validity of the admissions.

The same cannot be said of defendant's receiving plea and conviction in this case.   Here, defendant does not challenge the validity of his plea.   Defendant's amended notice of appeal explicitly states that he “appeals the judgment entered ․ after his plea of no contest,” and that he “appeals solely upon grounds occurring after entry of the plea which do not challenge its validity․”

The validity of defendant's plea to the receiving charge is beyond question.   Because section 496 expressly authorizes the prosecution to charge a defendant with both burglary and possession of the same stolen property, it implicitly permits, even requires, the same defendant to plead to both charges.   Under section 1016, a criminal defendant is required to plead to every charge.   Therefore, by pleading no contest to the receiving charge, defendant acted as required by law.   Hence, up to the time of defendant's plea there was no violation of section 496.

The violation occurred only after defendant had entered his plea when the trial court pronounced judgment and convicted defendant of both taking and receiving charges.   The error was therefore post-plea.   It has been held:  “[A] certificate [of probable cause] is normally required before a defendant may appeal from a conviction based on a plea of guilty.  [Citation.]  But the formal requirements of Penal Code section 1237.5, do not apply where, as here, the defendant is not challenging the validity of his guilty plea but is alleging error in the sentencing proceedings following entry of the plea.   [Citations.]”  (People v. Sumstine (1984) 36 Cal.3d 909, 915, fn. 3, 206 Cal.Rptr. 707, 687 P.2d 904.)

Policy considerations also weigh heavily against applying section 1237.5 to this case.   A fair reading of section 1237.5, subdivision (b), discloses that the duty to execute and file the certificate of probable cause devolves upon the trial court.   Implicitly, the role of the defendant is merely to request such a certificate.   A question may be asked:  If a defendant meritoriously requests such a certificate and the trial court unreasonably denies the request, should the certificate be insisted on as a requirement for appeal?   Plainly not.   To do so would permit the court to abuse its discretion.

As stated in In re Brown (1973) 9 Cal.3d 679, 683, footnote 6, 108 Cal.Rptr. 801, 511 P.2d 1153:  “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 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.]”

Therefore, if the issuance of the certificate of probable cause by the court cannot be unreasonably refused, we may consider the certificate presumably issued for purposes of lending validity to the appeal where the right to such issuance is clear.   A literal insistence on the certificate under such a circumstance elevates form over content, procedure over substantive rights.   Such uncritical insistence defeats, rather than serves, the purpose of section 1237.5.

We recognize that in People v. Breckenridge, supra, 5 Cal.App.4th at page 1101, 8 Cal.Rptr.2d 1, we stated that “[t]he purpose of section 1237.5 is to discourage and weed out frivolous or vexatious appeals following guilty pleas,” and that “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.”

Breckenridge is, however, distinguishable.   First, as discussed, the appeal in this case is not “frivolous or vexatious”;  it is patently meritorious.   Indeed, the error below is so patent that the cause to appeal it is not merely “probable,” but certain and a matter of law.   Verily, to disallow the present appeal would achieve the very result that Breckenridge sought to avoid:  it would weed out the wrong appeal.

More importantly, the issue in Breckenridge was the validity of defendant's plea.   There, the defendant sought reversal of the enhancement on the basis that “his admission of the prior was invalid due to an inadequate advisement of rights.”  (5 Cal.App.4th at p. 1098, 8 Cal.Rptr.2d 1.)   We therefore noted that defendant's “claim implicates the validity of his admission of the prior.”  (Ibid.)  Here, on the other hand, as pointed out, defendant does not challenge the validity of his plea;  what defendant challenges is his post-plea conviction.

In any event, there is in this case implied compliance with the section 1237.5, subdivision (b), requirement.   In People v. Holland (1978) 23 Cal.3d 77, 84–85, 151 Cal.Rptr. 625, 588 P.2d 765, the court stated:  “When Penal Code section 1237.5 applies, the failure of the trial court to issue a certificate of probable cause precludes appellate review.   However, if 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.  [Citation.]”  (Footnotes omitted.)

Here, the augmented record shows that during the pendency of this appeal, defendant moved the trial court to vacate the conviction on count 2 on the ground that it is proscribed by section 496.   The People objected, stating:  “The appeal is already in process․  This issue is being addressed by the Sixth District at this time.   They are already doing it.   It seems like a double waste of taxpayer money to be doing it here and doing it there at the same time.   It's already up there;  it's being handled;  the attorney general is addressing it.”

The court denied the motion, reasoning:  “The Court just briefly looked at the People's brief, and they deal with it, and it's a very cursory side issue to the underlying issue.   I would do it except that we—I don't know if there's anything else to be done in the briefing process.”

Pressed by defendant to correct the “unauthorized sentence ․ [to] ․ remove an issue from appellate consideration by rendering it moot,” the trial court responded:  “․ I wouldn't mind doing it except, as [the deputy district attorney] points out, this process has gone too far now․”

It is clear from the augmented reporter's transcript that the trial court realized there was probable cause to appeal the section 496 conviction.   Indeed, the trial court implicitly admitted its error when it stated it would have corrected the error had not the appellate process gone too far.   Therefore, by both word and conduct, the trial court had impliedly certified probable cause for the appeal.

In fact, it can be said that in this case the record certifies itself.

 There now only remains the matter of remedy;  that is, whether to reverse both convictions or to reverse only one and affirm the other.   In People v. Jaramillo, supra, 16 Cal.3d at pages 760–761, footnote 11, 129 Cal.Rptr. 306, 548 P.2d 706, the court stated:  “Although the United States Supreme Court had earlier indicated that the proper remedy upon conviction of both theft of and receiving the same property was an outright reversal of both convictions (see Milanovich v. United States (1961) 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 ․), this principle has not been mechanically applied where the prejudice to the defendant could otherwise be avoided [citations].   Furthermore, the court recently retreated from the Milanovich position.   In United States v. Gaddis (1976) 424 U.S. 544, 96 S.Ct. 1023, 47 L.Ed.2d 222 ․ the court held that notwithstanding the impropriety of convictions of both robbing a bank and receiving the proceeds of that robbery the defect could be remedied by vacating one of the convictions and the sentence therefor.”

Here, we see no prejudice to defendant by reversing only the receiving conviction for which the court had imposed a concurrent two-year term.   Such remedy comports with the observation in People v. Stewart, supra, 185 Cal.App.3d at page 203, 229 Cal.Rptr. 445, that “a thief cannot be convicted of receiving the property which he stole.”   It is also in accord with the statement in People v. Perez (1974) 40 Cal.App.3d 795, 800, 115 Cal.Rptr. 405, that “[w]here the information charged burglary in one count and receiving stolen property in another count, there can be no lawful adjudication of guilt of the latter crime where the evidence shows that the property ‘received’ was some or all of the identical property taken and asported in the burglary.   [Citation.]”

In People v. Stephens (1990) 218 Cal.App.3d 575, 587, 267 Cal.Rptr. 66, the court, faced with a similar situation, reversed the receiving conviction but let stand the robbery conviction.

We are persuaded that the Stephens approach is the correct approach.   It avoids remand and waste of judicial time and resources.

DISPOSITION

The count 2 conviction (receiving stolen property) is reversed, and the sentence therefor is stricken.   In all other respects, the judgment is affirmed.

I concur in that portion of the lead opinion affirming the trial court's denial of appellant's motion to suppress evidence.

I also concur in the portion of the lead opinion reversing appellant's conviction for receiving stolen property and striking the sentence.   I concur in the lead opinion's conclusion that the trial court's statements impliedly certified probable cause for the appeal pursuant to People v. Holland (1978) 23 Cal.3d 77, 151 Cal.Rptr. 625, 588 P.2d 765, where the court stated, “However, if the trial court has, by its statements or conduct, in effect certified the appeal, appellate review is proper.”  (Id. at p. 84, 151 Cal.Rptr. 625, 588 P.2d 765;  see also People v. Flores (1987) 196 Cal.App.3d 475, 481–482, 241 Cal.Rptr. 835;  People v. Padfield (1982) 136 Cal.App.3d 218, 224, fn. 5, 185 Cal.Rptr. 903.)

I concur in that portion of the lead opinion affirming the trial court's denial of appellant's motion to suppress evidence.

In regard to the lead opinion's conclusion that appellant need not comply with the requirements of section 1237.5, I respectfully dissent.   I do not agree that this appeal involves a post-plea matter.   In my view, a plea of guilty constitutes a conviction.  (People v. Banks (1959) 53 Cal.2d 370, 390–391, 1 Cal.Rptr. 669, 348 P.2d 102;  Stephens v. Toomey (1959) 51 Cal.2d 864, 873, 338 P.2d 182;  People v. Balderas (1985) 41 Cal.3d 144, 203, 222 Cal.Rptr. 184, 711 P.2d 480.)   I believe that a challenge to the conviction on jurisdictional grounds is precisely the type of claim contemplated by section 1237.5, which explicitly refers to “jurisdictional, or other grounds going to the legality of the proceedings.”

I do not find Breckenridge to be distinguishable.   Whether defendant admits an allegation of a prior conviction or admits to allegations constituting a current crime, the result should be the same.   In either case, he or she cannot challenge the judgment of conviction based on that plea without complying with the requirements of section 1237.5.

I must also disagree with the majority's conclusion that there was “implied compliance” with section 1237.5 in this case.   As I read the augmented record of the proceedings held while this appeal was pending, counsel asked the trial court to stay imposition of the sentence for the receiving conviction, for the reason that the sentence as pronounced was in violation of Penal Code section 654.   Counsel did not argue that the convictions were void but rather appeared to concede appellant could be convicted of both burglary and receiving stolen property but could not be sentenced for both.  (ART 3, 6)  Since the issue whether the convictions were unlawful was not before the trial court, I do not believe the court's remarks can be interpreted as an implied certification of that issue for appeal.   I therefore would find People v. Holland (1978) 23 Cal.3d 77, 84, 151 Cal.Rptr. 625, 588 P.2d 765 and the cases cited there at footnote 7 to be distinguishable.

The lead opinion suggests that appellate courts should treat certificates as presumptively issued when the underlying issue has merit, i.e. where the trial court could not reasonably have refused to issue the certificate, had one been requested.   I disagree.   If that were the practice, we would be obliged to reach the merits in every case in order to determine whether to deem a certificate issued and thereby “arrogate[ ] to [ourselves] the screening which should have taken place at the county level.”  (People v. Ballard (1985) 174 Cal.App.3d 982, 988, 220 Cal.Rptr. 323;  People v. Castelan (1995) 32 Cal.App.4th 1185, ––––, 38 Cal.Rptr.2d 574.)   If appellant's issue has merit, he or she is not without a remedy by means of habeas corpus proceedings.

I believe that the purposes behind section 1237.5 will be furthered only if we insist on compliance with its procedures.  “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.”  (People v. Breckenridge (1992) 5 Cal.App.4th 1096, 1100–1101, 8 Cal.Rptr.2d 1, quoting People v. Zamora (1991) 230 Cal.App.3d 1627, 1634, 282 Cal.Rptr. 100.)   I would follow Breckenridge and dismiss the second part of the appeal in this case.

FOOTNOTES

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

2.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

PREMO, Acting Presiding Justice.

ELIA, J., concurs.