Brown, In re

• Decision Date: 10 July 1973
• Docket Number: Cr. 16641
• Citation: 108 Cal.Rptr. 801,9 Cal.3d 679,511 P.2d 1153
• Parties: , 511 P.2d 1153 In re Maxine BROWN on habeas corpus.
• Court: California Supreme Court

Page 801

108 Cal.Rptr. 801

9 Cal.3d 679, 511 P.2d 1153

In re Maxine BROWN on habeas corpus.

Cr. 16641.

Supreme Court of California In Bank.

July 10, 1973.

Thomas Kallay, Santa Monica, under appointment by the Supreme Court, for petitioner.

Joseph P. Busch, Dist. Atty., Harry Wood and Arnold T. Guminski, Deputy Dist. Attys., for respondent.

WRIGHT, Chief Justice.

The People were directed in response to petitioner's application for a writ of habeas corpus to show cause why the following orders should not be set aside: (1) order denying petitioner's motion to withdraw a plea of guilty to a charge of robbery; and (2) order granting probation. We conclude that the remedy sought by petitioner is unavailable and that, in any event, the trial court did not abuse its discretion in denying her request to withdraw her guilty plea duly entered pursuant to a plea bargain.

Petitioner was charged with robbery, the information further alleging that at the time thereof she was armed with a deadly weapon. (See Pen.Code, §§ 211, 211a, 3024, 12022.) ¹ She pleaded not guilty. Two weeks later she appeared with counsel, personally waived all trial rights and protections (see Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; 81 Cal.Rptr. 577. 460 P.2d 449), withdrew her plea of not guilty and pleaded guilty to robbery in the second degree. ²

Prior to entering her plea the court advised petitioner: 'A plea bargain was entered into in this matter, which in substance was this: that if you plead guilty, the court would make this a felony; you would receive a maximum of six months in the County Jail from the date of the sentence; and if I felt that I could not do this, I would permit you to withdraw your plea. Do you understand?' Petitioner answered in the affirmative, and in response to a further inquiry stated that no other promises had been made to her.

At the probation and sentencing hearing four weeks later, before the court had indicated its disposition of the matter, petitioner moved to withdraw the guilty plea and proceed to trial by jury. Although the motion was summarily denied, the court indicated at the time of the ruling that it had read and considered the probation officer's report. Thereupon petitioner filed a written motion to relieve her appointed counsel. Counsel argued the motion in behalf of petitioner, stating that he had advised her to enter into the plea bargain; that 'she believes she is not guilty of this offense'; that although counsel had informed her of the consequences of trial 'she feels it is worth taking that risk . . . and does not wish to enter a plea to a charge which she is not guilty of and wants to take her chance with a jury trial.'

The court, in denying the motion to relieve counsel but also addressing itself to the motion to withdraw the guilty plea, stated: 'Well, this matter was plea bargained at the time and she was asked at that time if she was guilty and she said she was guilty. We very carefully took the plea, as I recall, and I see no good cause for setting the plea aside.' Proceedings were suspended and petitioner was placed on probation without supervision for the period of one year on condition she serve six months in the county jail, after the service of which term probation was to be terminated. ³

Petitioner, 13 days after the order, filed a timely declaration (see Cal.Rules of Court, rule 31(d)) seeking a certificate of probable cause for appeal. (§ 1237.5.) ⁴ Therein she alleged that she had been induced to change her plea from not guilty to guilty as the result of representations by her attorney of a likelihood that on trial she would be found guilty and receive a state prison sentence. She further alleged that she was in fact not guilty and had decided, following her change of plea, that she 'could not in good conscience proceed with the plea bargain previously entered into . . ..' She also complained of the court's denial of her motion to relieve her attorney 'because she felt that the attorney assigned to the case could no longer affirmatively proceed with regard to her best interests . . ..' She concluded that she had been 'deprived of her liberty without due process of law and without the effective assistance of counsel.' The court summarily denied the request for the certificate and petitioner sought relief by her instant application.

A threshold issue is whether the writ lies for the instant relief sought by petitioner. Normally habeas corpus will not lie where the remedy of appeal exists. (In re Lopez (1970) 2 Cal.3d 141, 151, 84 Cal.Rptr. 361, 465 P.2d 257; In re Dixon (1953) 41 Cal.2d 756, 760--761, 264 P.2d 513.) Section 1237.5 establishes the procedure for perfecting an appeal from a judgment based on a plea of guilty (People v. Ribero (1971) 4 Cal.3d 55, 63--64, 92 Cal.Rptr. 692, 480 P.2d 308) or, as in this case, an appeal from an order granting probation after a plea of guilty. (See § 1237, subd. 1.) Issues reviewable on such an appeal include those raised by a claimed ineffectiveness of counsel (People v. Natividad (1963) 222 Cal.App.2d 438, 441, 35 Cal.Rptr. 237), a plea obtained by a claimed misrepresentation (People v. Butler (1945) 70 Cal.App.2d 553, 561--563, 161 P.2d 401), and any abuse of discretion in denying a motion to withdraw a plea of guilty (People v. Francis (1954) 42 Cal.2d 335, 338, 267 P.2d 8). It thus appears that review of all issues suggested by petitioner was available under section 1237.5. For that reason an attack on the validity of the plea of guilty by way of a motion to withdraw the plea on the grounds asserted in the trial court did not afford petitioner a means by which she might avoid the requirements of section 1237.5. (See People v. Ribero, supra, 4 Cal.3d at pp. 63--64, 92 Cal.Rptr. 692, 480 P.2d 308.)

Section 1237.5 is designed to preclude 'frivolous appeals by requiring the defendant to set forth grounds for appeal and, if he does so, by requiring the trial court to rule on the issue of probable cause.' (Id. at p. 62, 92 Cal.Rptr. at p. 697, 480 P.2d at p. 313.) ⁵ Where a certificate of probable cause has been denied on the merits the remedy is to seek review of the propriety of the denial. On a timely application therefor, the writ of mandate lies. (See People v. Warburton (1970) 7 Cal.App.3d 815, 820, fn. 2, 86 Cal.Rptr. 894.) Only when it has been adjudged that probable cause for appeal exists and the certificate has issued, either because the trial court has affirmatively responded to a defendant's declaration of probable cause or because a proper court has reviewed a trial court's denial and mandated the issuance of the certificate, may appellate review of the trial court proceedings on the merits be had. ⁶ No reason appears which demonstrates any inadequacy of remedy or denial of any right such as would require that we ignore the clear legislative direction embodied in section 1237.5, and entertain a proceeding for the writ of habeas corpus which is in reality nothing more than an alternative appeal from the trial court's order granting probation. To entertain such proceedings would render without legal effect the provisions of section 1237.5 and frustrate its declared purpose of eliminating from appellate channels those appeals which are clearly 'frivolous and vexatious.'

In the instant case petitioner initiated proceedings pursuant to section 1237.5 but abandoned that channel of review when the trial court refused to issue its certificate. Petitioner cannot now by-pass reasonable and adequate procedures for challenging the propriety of the trial court's refusal to issue its certificate and have her appeal notwithstanding.

Even if we elect to treat petitioner's application for the writ of habeas corpus as a petition for a writ of mandate directing the issuance of the certificate, petitioner cannot prevail as her declaration clearly fails to demonstrate probable cause for appeal. If we construe the declaration as broadly as reason allows, it purports to have stated three grounds of appeal: (1) counsel's representations to petitioner wrongfully induced her to enter into the plea bargain; (2) counsel's representation of petitioner was such that he should have been relieved; and (3) the court abused its discretion, as a matter of law, when before sentencing it denied a motion to withdraw a guilty plea entered in reliance upon a plea bargain.

The declaration fails to allege and the record fails to disclose any wrongdoing in connection with the making or execution of the plea bargain. Petitioner alleges that counsel's representations induced her to enter into the plea bargain but she does not claim that such representations were false, fraudulent or ill-conceived in any manner. She next states that her attorney represented to her the terms of the plea bargain which he had arranged with the court and, it clearly appears, she in fact received the full benefit of such a bargain. She also alleges that her attorney advised of a likelihood that if she proceeded to trial she would be found guilty and receive a state prison sentence. There is nothing in the declaration or otherwise in the record which suggests that the attorney's advice was not sound and in petitioner's best interests. Petitioner cannot be heard to complain of a plea bargain induced by representations of her counsel, none of which is shown to be improper, where the bargain is fully complied with on the part of the state. ⁷

Petitioner's second ground for appeal is likewise without merit. In addition to the foregoing allegations concerning counsel's conduct, petitioner further alleged in her declaration that counsel argued in support of her motions to change her plea and to relieve counsel and that she felt, in view of her changed position as to her guilt, that counsel 'could no longer affirmatively proceed with regard to her best interests.'

The sum total of allegations regarding counsel's conduct fall far short of...