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PEOPLE of the State of California, Plaintiff and Respondent, v. Rex Gordon BRINKMAN, Defendant and Appellant.
OPINION
Defendant Rex Gordon Brinkman appeals after a plea of nolo contendere, pursuant to plea bargain, to drug and weapons charges. Defendant argues that he was told at the time of the plea bargain that his ultimate sentence could be anything from felony probation to a state prison sentence, depending upon the assistance he provided to law enforcement officers. Because of the charges levelled against him, however, he was statutorily ineligible for probation, no matter what assistance he provided to law enforcement. After defendant was sentenced to state prison, he sought to withdraw his plea on the ground the plea bargain was an “improper contract.” The motion to withdraw his plea was denied. Defendant's application for a certificate of probable cause (Pen.Code, § 1237.5) for an appeal was also denied. Defendant now appeals, following that denial. We hold that the failure to successfully secure a certificate of probable cause precludes consideration of defendant's claim the plea bargain was unlawful. Defendant's remaining contentions, to the extent cognizable on appeal in the absence of a certificate of probable cause, are without merit. We therefore dismiss in part and affirm in part.
FACTS AND PROCEDURAL HISTORY
On July 19, 1991, a search warrant for certain premises led to the discovery and seizure of methamphetamine, firearms and a destructive device that were the basis of the criminal charges against defendant. Defendant was charged with (1) possession of methamphetamine for sale (Health & Saf.Code, § 11378) with enhancements for being armed with a firearm (Pen.Code, § 12022, subd. (c)), personal use of a firearm (Pen.Code, § 12022.5, subd. (c)), and possession of over 10 pounds of methamphetamine (Health & Saf.Code, § 11370.4, subd. (b)), (2) possession of a short-barrelled shotgun (Pen.Code, § 12020, subd. (a)), (3) possession of a short-barrelled rifle (Pen.Code, § 12020, subd. (a)), and (4) possession of a destructive device (Pen.Code, § 12303.2). The information alleged in connection with count 4 (possession of a destructive device) that imposition of sentence could not be suspended nor probation granted (Pen.Code, § 12311).
After the trial court denied his motion to suppress evidence, defendant withdrew his not guilty plea and agreed to a plea bargain. Among other things, defendant would plead nolo contendere to all charges (except that the enhancement for personal use of a firearm was stricken), and he would be an informant for law enforcement agencies. At the hearing on the change of plea, the prosecutor indicated that, in exchange for defendant's plea and the possibility that defendant would receive probation, the People wanted defendant to give up the possibility of being referred to the California Rehabilitation Center. Defendant agreed to that condition.
The court also explained to defendant that sentencing would be delayed and a later hearing held to determine whether he had given sufficient help to law enforcement agents. After listening to the sentencing recommendations of both counsel, the court would sentence defendant “anywhere from a formal probation felony sentence to state prison time” up to 15 years, 8 months.
The change of plea form defendant initialed indicated that defendant understood “I am not eligible for probation in this case as [the] case is now charged.”
The sentencing was delayed four months to allow defendant time to work with law enforcement officials. Defendant testified to several incidents in which he claimed to have helped law enforcement officers. Law enforcement officers did not, by and large, back up his claims; they testified that defendant had given them little, if any, useful information. The prosecutor argued that defendant had certainly not complied with the expected “rule of thumb” that he had to “produce” at least three criminals “bigger” than himself. The court, apparently finding that defendant did not cooperate fully as an informant, sentenced defendant on February 22, 1993, to nine years and four months in state prison, consisting of a mitigated term of sixteen months on count 1 (possession of methamphetamine for sale), which was designated the principal term, plus five years for the quantity enhancement and three years for the armed enhancement. The court also sentenced defendant to the middle term of two years each on counts 2 and 3 (possession of sawed-off shotgun and possession of sawed-off rifle), concurrent to count 1. The middle term of four years on count 4 (possession of a destructive device) was also made concurrent to the sentence in count 1.
On February 26, 1993, defendant moved to withdraw his guilty plea. The court denied the motion. On March 11, 1993, defendant filed a notice of appeal in propria persona, and applied for a certificate of probable cause. The court denied the application for a certificate of probable cause on March 11, 1993. We now turn to defendant's appeal.
DISCUSSION
I. Illegal Plea Agreement
Defendant first contends his conviction must be reversed because it was the product of an illegal plea agreement. That is, the prosecutor and the court promised defendant that, if he cooperated sufficiently with law enforcement officials, he might be granted probation, but because of the charges against him, he was statutorily ineligible for probation. Thus, no matter how many people defendant “turned,” he could never have gotten the benefit of his bargain.
Even if true, this argument is not cognizable on appeal because defendant failed to secure a certificate of probable cause on that ground.
A. Certificate of Probable Cause. A guilty or nolo contendere plea “remove[s] from consideration” on appeal issues going to guilt or innocence. (People v. Pinon (1979) 96 Cal.App.3d 904, 910, 158 Cal.Rptr. 425; see also People v. DeVaughn (1977) 18 Cal.3d 889, 895–896, 135 Cal.Rptr. 786, 558 P.2d 872.) With a few exceptions, the issues cognizable on appeal after a guilty or nolo contendere plea are only those based on “ ‘reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings' resulting in the plea.” (People v. DeVaughn, supra, 18 Cal.3d 889, 895–896, 135 Cal.Rptr. 786, 558 P.2d 872; see Pen.Code, § 1237.5.) Thus, the right to appeal following such a plea is quite limited.
Consonant with these principles, Penal Code section 1237.5 expressly provides that no appeal shall be taken from a judgment of conviction after plea of nolo contendere (or guilty) unless the defendant first files a written statement under oath “showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings” and the trial court executes a certificate of probable cause. California Rules of Court, rule 31(d) provides that, after a judgment on a plea of guilty or nolo contendere, the defendant must file with the notice of appeal a statement in support of a certificate of probable cause under Penal Code section 1237.5, “but the appeal shall not be operative unless the trial court executes and files the certificate of probable cause․” The trial court here did not execute the certificate of probable cause; defendant's appeal (on grounds subject to Pen.Code, § 1237.5) was therefore not operative.
Penal Code section 1237.5 is a procedural device (1) for screening out frivolous claims, by (2) requiring the defendant to set forth grounds for appeal. (See People v. Ribero (1971) 4 Cal.3d 55, 92 Cal.Rptr. 692, 480 P.2d 308.)
1. Screening Frivolous Claims. When should an application for a certificate of probable cause be granted? “In ruling on an application for certificate of probable cause, ‘[t]he trial court's sole objective is to eliminate those appeals “having no possible legal basis” by refusing to issue a certificate of probable cause. [Citations.] Section 1237.5 requires the trial court to certify any arguably meritorious appeal to the appellate courts. Thus, if the statement submitted by the defendant in accordance with section 1237.5 presents any cognizable issue for appeal which is not clearly frivolous and vexatious, the trial court abuses its discretion if it fails to issue a certificate of probable cause. [Citations.]’ ” (Lara v. Superior Court (1982) 133 Cal.App.3d 436, 440, 183 Cal.Rptr. 796, quoting People v. Holland (1978) 23 Cal.3d 77, 84, 151 Cal.Rptr. 625, 588 P.2d 765, first emphasis added, second emphasis in original.)
Here, defendant filed a notice of appeal and application for certificate of probable cause in propria persona. He indicated that his appeal challenged the validity of the plea, stating that, after his writ petition (i.e., following denial of his motion to suppress evidence) was denied, he “entered a plea which I believe is illegal.” Defendant did not specify the manner in which he believed his plea was illegal, but he did cite a depublished appellate court case. The depublished case involved a plea bargain in which, like defendant's plea bargain, the benefit gained by the defendant depended upon his success in informing on other criminals. The defendant in the depublished case had argued the plea bargain was illegally vague and uncertain because it did not sufficiently specify how he was to comply or cooperate. That is, he argued he was unable to comply with the bargain because he did not have sufficient resources and law enforcement officers did not front him the money with which to set up drug buys. The bargain was also not specific about how many arrests, what kinds of offenses, and so on, would entitle the defendant to favorable consideration or would constitute compliance with the informant part of the bargain.
Did defendant's application here raise an “arguably meritorious” issue on appeal? Defendant's application can be read in either of two ways. First, a court might conclude that defendant did not clearly specify in what manner he believed the plea bargain was illegal. A bare-bones allegation that the plea bargain was illegal does not demonstrate probable cause for an appeal of issues occurring prior to the plea or at the time of the plea. Because of the conclusional allegation, the trial court would not be able to determine the identity of the appellate complaint. In such circumstances, the trial court could properly refuse to issue the certificate of probable cause. (See People v. Everett (1986) 186 Cal.App.3d 274, 280–281, 230 Cal.Rptr. 604.)
Second, and perhaps more fairly under the circumstances, the application could be read as contending that “snitch” plea bargains were unlawful, for vagueness or otherwise. The application could not be considered wholly frivolous or vexatious under this view—defendant managed to find one case, albeit a depublished case, in which an appellate court had accepted a similar argument.1 At the time defendant made his application for a certificate of probable cause, therefore, the trial court under this view abused its discretion in denying the certificate.
Where a trial court has abused its discretion in refusing to issue a certificate of probable cause, such refusal is reviewable by a petition for writ of mandate. (In re Brown (1973) 9 Cal.3d 679, 683, 108 Cal.Rptr. 801, 511 P.2d 1153; see also People v. Patterson (1984) 151 Cal.App.3d 252, 255, 198 Cal.Rptr. 585.) On the same date that defendant's appointed counsel on appeal filed his opening appellate brief, and fully eight months after the trial court denied the application for a certificate of probable cause, defendant did file a petition for writ of mandate, seeking to order the trial court to grant defendant's application for a certificate of probable cause. This court denied the petition on January 7, 1993, however, because the ground for appeal presented in the application for a certificate of probable cause was not the same ground as that actually raised on appeal.
2. Requirement of Setting Forth Grounds for Appeal. Defendant's contention here is not that the plea bargain was vague and illegal for failing to specify the terms of the plea bargain “contract,” and to set out the responsibilities of the various parties. Rather, defendant contends the bargain was illegal ab initio because one of the specific terms of the agreement (possible probation) was not authorized by law. Defendant never informed the trial court, however, in his application for a certificate of probable cause, of the ground he now urges as error.2 The failure to specify the grounds in the notice of appeal (which includes the application for a certificate of probable cause) is fatal to defendant's claim.
The certificate of probable cause is required precisely because the right of appeal after a guilty or nolo contendere plea is limited. If the defendant can cite one arguably meritorious ground to secure the certificate, but abandon that ground and raise others in the actual appeal, then what is the point of requiring a certificate of probable cause?
The court in People v. Earls (1992) 10 Cal.App.4th 184, 12 Cal.Rptr.2d 606, considered a related problem. There, the notice of appeal was deficient under rule 31(d) and Penal Code section 1237.5 when it simply stated that the defendants appealed because their pleas “ ‘resulted from reversable [sic ] errors occurring’ ” in the lower courts. The actual issues raised on appeal involved search and seizure questions. Penal Code section 1237.5, requiring a certificate of probable cause, is inapplicable to some search and seizure issues (see Pen.Code, § 1538.5, subd. (m)). Nevertheless, under the California Rules of Court, rule 31(d), the appeal is still inoperative unless the notice of appeal states that it is based on that ground. “Section 1237.5 establishes the jurisdictional limits of [the appellate 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 [including the search and seizure exception] 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].’ ” (Earls, supra at p. 193, 12 Cal.Rptr.2d 606.) If the failure to state the specific grounds for appeal renders the appeal inoperative even where Penal Code section 1237.5 does not apply, then surely the failure to state the specific ground of appeal—a necessary prerequisite to gaining the certificate of probable cause where one is required—is also jurisdictional. The “reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings” are, after all, “filed as part of the notice of appeal.” If the statute did not require the grounds to be the same as the ones to be actually raised on appeal, then the statute would be rendered meaningless, a useless exercise.
We thus join the ranks of those courts adhering to a strict view of the requirements of Penal Code section 1237.5. “The vice in ․ ad hoc dispensations from the procedural requirements of section 1237.5 is that the long range purposes of the statute are effectively defeated. Defendants and their appellate counsel are encouraged to raise issues which have not been first presented to the trial court in the hope that the appellate court will be moved by its own notion of judicial economy to entertain those issues on their merits․ The end result is that section 1237.5 is effectively nullified since the appellate courts must review these issues if only to determine whether it will be ‘economical’ to decide them on their merits.” (People v. Pinon, supra, 96 Cal.App.3d 904, 909, 158 Cal.Rptr. 425.)
“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.” (People v. Grey (1990) 225 Cal.App.3d 1336, 1339, 275 Cal.Rptr. 572, overruled on other grounds in In re Jordan (1992) 4 Cal.4th 116, 130, fn. 8, 13 Cal.Rptr.2d 878, 840 P.2d 983.) We conclude that defendant's failure to raise the ground in his application for a certificate of probable cause below that he now seeks to raise on appeal is a failure to satisfy the requirements of Penal Code section 1237.5, and that he has not shown good cause for his failure to do so. Accordingly, we do not consider the issue whether the plea bargain was contrary to law because defendant was ineligible for probation, one of the promised possible sentences.3
II. Failure to State Reasons for Denial of Probation
Defendant raises the further contention that the sentence must be vacated because the trial court failed to state reasons for denying probation. This issue is cognizable without a certificate of probable cause because it involves matters that happened after the plea was entered. (See Cal.Rules of Court, rule 31(d); People v. Sumstine (1984) 36 Cal.3d 909, 206 Cal.Rptr. 707, 687 P.2d 904.) 4
Defendant's contention is without merit. He was statutorily ineligible for probation; the plea agreement did not change that fact. No remand is required to secure a statement of reasons for a denial of probation, under circumstances in which the defendant is ineligible for probation. (People v. Langevin (1984) 155 Cal.App.3d 520, 523, 202 Cal.Rptr. 234.)
III. Failure to Advise Probation Officer of Plea Bargain Terms
The trial court ordered the plea agreement sealed, and the prosecuting attorney requested that the probation office be advised only that defendant had pleaded to all the charges against him. Defendant argues this was contrary to the rules on sentencing (requiring that the probation report must include “the terms of any agreement upon which a plea of guilty was entered”—see California Rules of Court, rule 411.5(a)(1)(vi)), causing the probation officer to approach the evaluation without awareness that defendant had been promised eligibility for probation.
Although this matter arose in connection with sentencing (i.e., after the plea), defendant did not raise this issue in his notice of appeal. Under rule 31(d), “If [an] appeal ․ [after] a plea of nolo contendere is based solely upon grounds ․ occurring after the entry of the plea which do not challenge its validity ․ the provisions of section 1237.5 ․ requiring a ․ certificate of probable cause ․ are inapplicable, but the appeal shall not be operative unless the notice of appeal states that it is based upon such grounds.” Defendant's notice of appeal in no manner indicated he intended to complain that the probation officer was not advised of the terms of the plea bargain; specifically, to consider defendant eligible for probation. (See People v. Earls, supra, 10 Cal.App.4th 184, 193, 12 Cal.Rptr.2d 606.) In any event, defendant's statutory ineligibility for probation precluded any recommendation that probation be granted, regardless of the probation officer's awareness of the supposed terms of the plea bargain.
IV. Restitution Fine
Defendant finally contends the trial court improperly failed to make any assessment of defendant's ability to pay when it ordered a $500 restitution fine. Again, defendant failed to comply with rule 31(d), as his notice of appeal does not refer to this post-plea issue.5
This court did permit briefing of the issue, however, and to that extent may have misled appellate counsel regarding the reviewability of the issue. We note, therefore, that defendant failed to object below or to affirmatively request a hearing on his ability to pay the fine, even though the probation report put defendant on notice that a fine of $500 per count was recommended. The court actually imposed a much lesser total fine of $500. Defendant's failure to object effectively waived the issue on appeal. (See People v. Menius (1994) 25 Cal.App.4th 1290, 31 Cal.Rptr.2d 15.)
DISPOSITION
The appeal as to the issues of legality of the plea bargain, failure to advise the probation officer of the terms of the plea bargain and propriety of the restitution fine are dismissed for failure to comply with Penal Code section 1237.5 and/or California Rules of Court, rule 31(d). The issue concerning failure to state reasons for denial of probation is without merit. To the extent any of the issues are cognizable on appeal, they are without merit and the judgment is affirmed.
FOOTNOTES
1. The case defendant cited had been ordered depublished on November 1992. Defendant executed his application for a certificate of probable cause on February 25, 1993. Defendant may or may not have been aware of the depublication order at the time he filed his application.
2. To the extent that defendant urges his request for a certificate of probable cause did raise the same issue he now raises on appeal, we must reject the argument. The depublished case defendant cited focused on the appropriateness of applying contract principles to plea bargains. This is only marginally related to defendant's present claim that his plea bargain was illusory; nothing in the depublished case could possibly have alerted the trial court to the potentially appealable claim that the bargain was invalid because defendant was legally not eligible for probation. The relation between the two claims is so tangential as to suggest the original application for a certificate of probable cause was too conclusional to determine whether probable cause for the appeal—certainly the probable cause that defendant now urges—was stated.
3. See People v. Manriquez (1993) 18 Cal.App.4th 1167, 1170, fn. 3, 22 Cal.Rptr.2d 779: “At least we may commend counsel for recognizing that defendant's primary issue on appeal required the certificate which the trial court refused to issue, and for seeking relief from this court. In the future, however, we suggest that such relief be sought, and obtained, before counsel researches, prepares, and files a brief raising an issue which turns out not to be cognizable.”
4. Defendant's notice of appeal did specify that he intended to raise matters based on the sentence (i.e., post-plea), as well as stating that the court “failed to articulate why I was not granted probation.”
5. At oral argument, appellate counsel suggested our treatment of this issue was inconsistent with this court's opinion in People v. Manriquez, supra, 18 Cal.App.4th 1167, 22 Cal.Rptr.2d 779. It is not. We stated in Manriquez at page 1168, 22 Cal.Rptr.2d 779 that the issue of the propriety of a restitution fine is cognizable on appeal. So it is; we have not said otherwise here. Rather, we point out that, as to issues cognizable without a certificate of probable cause on appeal after a guilty plea, the notice of appeal must specify that the appeal is based upon such grounds, or it is not operative. (Cal.Rules of Court, rule 31(d).) We also have nonetheless considered the substantive aspect of the restitution fine issue, and find that defendant waived the issue.
DABNEY, Acting Presiding Justice.
RICHLI and McDANIEL *, JJ., concur.
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Docket No: No. E012503.
Decided: February 17, 1995
Court: Court of Appeal, Fourth District, Division 2, California.
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