People v. Ballard

Decision Date25 November 1985
Citation174 Cal.App.3d 982,220 Cal.Rptr. 323
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. George Jamie BALLARD, Defendant and Appellant. AO20259.

David L. Cunningham, Sausalito, for defendant/appellant.

John K. Van de Kamp, Atty. Gen., Martin S. Kaye, Landra Rosenthal, Deputy Attys. Gen., San Francisco, for plaintiff/respondent.

HOLMDAHL, Associate Justice.

A criminal defendant, convicted by plea of four felonies, contends on appeal that an unreasonable search and seizure, denial of discovery, entrapment, and the failure of his trial counsel adequately to pursue the defense of entrapment, all combine to compel reversal of his convictions.

Defendant's failure to comply with Penal Code section 1237.5 and California Rules of Court, rule 31(d) compels dismissal of the appeal.

Procedural History

By information filed March 23, 1982 (as amended June 8, 1982), the Marin County District Attorney accused defendant of 10 felonies, as follows: Counts I and II, sale or transportation of heroin (Health & Saf.Code, § 11352); counts III and V, selling a substance in lieu of methaqualone (Health & Saf.Code, § 11355); counts IV and VII, attempted receipt of stolen property (Pen.Code, §§ 664, 496); 1 count VI, possession of methamphetamine (Health & Saf.Code, § 11377); count VIII, possession of marijuana for sale (Health & Saf.Code, § 11359); count IX, possession of phenmetrazine amphetamine (Health & Saf.Code, § 11377); and, count X, possession of codeine pethidine (Health & Saf.Code, § 11350).

On April 21, 1982, defendant filed motions for discovery, for suppression of evidence pursuant to section 1538.5, and to set aside the information pursuant to section 995. In due course, the trial court heard and denied the section 995 and suppression motions, and granted the discovery motion.

On August 17, 1982, pursuant to a plea agreement, defendant pleaded guilty to counts one, three, four, and nine of the information. On October 20, 1982, the trial court sentenced defendant to state prison for each of these counts. The court ordered that the prison terms run concurrently to each other, but suspended execution of defendant's sentence and placed him on probation for three years, with conditions, including service of one year in jail.

At the conclusion of sentencing, defendant's trial counsel asked the court to set bail pending appeal. The deputy district attorney representing the People suggested that bail should not be set until a notice of appeal was on file. Defendant's trial counsel thereupon hand printed and filed a notice of appeal on a 5- 3/4"' X 8- 1/2"' sheet of paper on the spot. The court set bail on appeal at $5,000.

Defendant filed a more formal, typewritten notice of appeal on November 17, 1982. Neither the hand-printed notice of appeal nor the typewritten notice states any grounds on which the defendant bases his appeal. The record on appeal contains no certificate of probable cause executed by the trial court, and no indication that the defendant has made any effort to apply for a certificate of probable cause.

Defendant makes a variety of contentions on appeal, and initially we must determine whether they are cognizable.

Discussion

Rule 31(d) of the California Rules of Court (hereinafter, rule 31(d)) provides as follows: "In cases in which a judgment of conviction was entered upon a plea of guilty or nolo contendere, the defendant shall file the statement required by SECTION 1237.5 OF THE PENAL CODE2, which shall serve as a notice of appeal, within 60 days after the rendition of judgment, 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 his statement the trial court shall execute and file either a certificate of probable cause or an order denying such a certificate, and shall forthwith notify the parties of the granting or denial of such certificate.

"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 such plea which do not challenge the validity of the plea 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.

"The time for preparing, certifying and filing the record on appeal or for filing an agreed statement shall commence to run when the appeal becomes operative."

Since defendant did not obtain a certificate of probable cause from the trial court and because his notices of appeal stated no ground on which he purports to base his appeal, his appeal is not operative. (Rule 31(d).) The appropriate disposition for such an inoperative appeal is dismissal. (See People v. McNight (1985) 171 Cal.App.3d 620, 626, 217 Cal.Rptr. 393; People v. Perry (1984) 162 Cal.App.3d 1147, 1153, 209 Cal.Rptr. 414; People v. Vest (1974) 43 Cal.App.3d 728, 731, 737, 118 Cal.Rptr. 84; People v. Nigro (1974) 39 Cal.App.3d 506, 511, 114 Cal.Rptr. 213; People v. Chen (1974) 37 Cal.App.3d 1046, 1048, 112 Cal.Rptr. 894, disapproved on another ground in People v. Jiminez (1978) 21 Cal.3d 595, 608, 147 Cal.Rptr. 172, 580 P.2d 672; People v. McMillan (1971) 15 Cal.App.3d 576, 578, 93 Cal.Rptr. 296.) 3

The fact that the People have made no formal motion to dismiss this appeal does not make dismissal any less appropriate. The People cannot waive the requirements of rule 31(d) by silence, or even by affirmative consent to the appeal proceeding in spite of noncompliance with this rule. (See People v. Perry, supra, 162 Cal.App.3d at p. 1150, 209 Cal.Rptr. 414.)

A body of published appellate opinions does exist in which the authors, by one device or another, have discussed the merits of criminal appeals, in spite of appellants' noncompliance with section 1237.5 and rule 31(d).

The Second Appellate District has avoided section 1237.5 by dismissing appeals but then purporting to treat the proceedings as applications for writs, "in the interest of judicial economy...." (People v. Vest, supra, 43 Cal.App.3d at pp. 731-732, 118 Cal.Rptr. 84 [denying habeas corpus relief]; People v. Nigro, supra, 39 Cal.App.3d at p. 511, 114 Cal.Rptr. 213 [denying mandate]; People v. McMillan, supra, 15 Cal.App.3d at pp. 578-579, 93 Cal.Rptr. 296 [denying habeas corpus].)

The Fifth Appellate District has been more forthright in its disregard of section 1237.5 and rule 31(d), proceeding to treat an appeal on its merits and to affirm a criminal conviction in the absence of a certificate of probable cause, without resorting to the device of treating an appeal as a writ application, again "in the interest of judicial economy." (People v. Santos (1976) 60 Cal.App.3d 372, 378, 131 Cal.Rptr. 426.)

The Fourth Appellate District follows the same approach, and spells out the underlying rationale. To ignore the requirements of section 1237.5 and rule 31(d) forestalls " 'an inevitable collateral attack on the basis of inadequacy of counsel for not securing a certificate of probable cause....' " (People v. Tirado (1984) 151 Cal.App.3d 341, 348, 198 Cal.Rptr. 682, hg. den. March 22, 1984, quoting from People v. Musante (1980) 102 Cal.App.3d 156, 158, 162 Cal.Rptr. 158, hg. den. April 24, 1980, cert. den. (1980) 449 U.S. 932, 101 S.Ct. 332, 66 L.Ed.2d 157.)

In People v. Chavez (1981) 124 Cal.App.3d 215, 220, 177 Cal.Rptr. 306, Division Four of the First Appellate District follows another approach, dealing with the appeal on its merits because of a belief that an affidavit of defendant's trial counsel filed in conjunction with his notice of appeal would have resulted in the issuance of a certificate of probable cause, if only he had asked for it.

Other courts have acknowledged the necessity of a certificate of probable cause in appeals to which section 1237.5 and rule 31(d) apply, but have nevertheless gratuitously indulged in discussions of the issues which the appellants sought improperly to raise. In People v. Williams (1980) 103 Cal.App.3d 507, 512, 163 Cal.Rptr. 169, another Fifth Appellate District panel states that whether the defendant admitted a prior felony conviction in the course of entering his guilty plea "is not cognizable on this appeal" in the absence of a certificate of probable cause, but then proceeds to discuss that very issue for five pages, to reach a conclusion on that issue, and to affirm. (Id., at p. 512-516, 163 Cal.Rptr. 169.) Similarly, in Perry and Chen, although Division Five of the Second Appellate District and Division Two of the First Appellate District, respectively, do dismiss appeals pursuant to section 1237.5 and rule 31(d), the opinions include gratuitous discussions of the merits of the appellants' contentions. (People v. Perry, supra, 162 Cal.App.3d at p. 1152, 209 Cal.Rptr. 414; People v. Chen, supra, 37 Cal.App.3d at pp. 1048-1049, 112 Cal.Rptr. 894.) More recently, Division Three of the First Appellate District, while dismissing an appeal where the trial court had denied an application for a certificate of probable cause and declaring that they "will not reach the merits of [t]his appeal," give a brief advisory opinion on the merits in a footnote. (People v. McNight, supra, 171 Cal.App.3d at p. 625, including fn. 5, 217 Cal.Rptr. 393.)

Even the California Supreme Court has fallen victim to the temptation gratuitously to discuss the merits of an issue not cognizable on appeal because of noncompliance with section 1237.5, while stoutly declaring that a convict cannot bypass the requirements of section 1237.5 by asserting his contentions in a petition for habeas corpus relief. (In re Brown ...

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