People v. Breckenridge

Citation5 Cal.App.4th 1096,8 Cal.Rptr.2d 1
Decision Date23 April 1992
Docket NumberH008997,Nos. H008358,s. H008358
CourtCalifornia Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Patrick BRECKENRIDGE, Defendant and Appellant. In re Patrick BRECKENRIDGE, On Habeas Corpus.

Daniel E. Lungren, Atty. Gen. of the State of Cal., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Christopher J. Wei, Deputy Atty. Gen., and Mark S. Howell Supervising Deputy Atty. Gen., for plaintiff and respondent.

Sally McGough, Petaluma, under appointment by the Court of Appeal for defendant and appellant.

CAPACCIOLI, Associate Justice.

Statement of the Case

Defendant Patrick Breckenridge appeals from a judgment entered after he pled guilty to lewd conduct with a child and admitted a 1976 prior serious felony conviction for a similar offense. (Pen.Code, §§ 288, subd. (a), 667, subd. (a), and 1237.5.) He received a six-year term for the lewd conduct and a five-year enhancement for the prior serious felony conviction. He seeks reversal of the enhancement, claiming that his admission of the prior was invalid due to an inadequate advisement of rights. 1 (See In re Yurko (1974) 10 Cal.3d 857, 863, 112 Cal.Rptr. 513, 519 P.2d 561.) We dismiss the appeal for failure to comply with section 1237.5.

Defendant also filed a petition for a writ of habeas corpus, in which he again challenges the enhancement. Here, he claims he received ineffective assistance of counsel because his attorney did not move to strike the prior serious felony allegation and such a motion would have been granted. We find no merit to this claim and deny the petition.

The Appeal

The People contend that defendant's appeal should be dismissed because he did not comply with the provisions of section 1237.5 applicable at the time he filed his notice of appeal. At that time, the statute provided, in relevant part, "No appeal shall be taken by a defendant from a judgment of conviction upon a plea of guilty ... except where the defendant has filed as part of the notice of appeal a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings." 2 (See Stats.1988, ch. 851, § 1, p. 2763; rule 31, subd. (d).) The record supports the People's claim.

In his notice of appeal, defendant states that he was "improperly sentenced" to the consecutive term for a prior serious felony conviction. This claim implicates the validity of his admission of the prior. (People v. Arwood (1985) 165 Cal.App.3d 167, 171-172, 211 Cal.Rptr. 307.) In his opening brief, defendant explicitly claims his admission was invalid. Under the circumstances, he was required to comply with section 1237.5. However, he did not include with his notice of appeal the required statement executed under oath or penalty of perjury.

"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; People v. Ballard (1985) 174 Cal.App.3d 982, 985, 220 Cal.Rptr. 323.)

Citing People v. Forrest (1990) 221 Cal.App.3d 675, 270 Cal.Rptr. 573, defendant argues he "substantially complied" with section 1237.5. We decline to recognize this excuse from complete compliance.

In Forrest, the court held that a defendant, who was not represented by counsel when he filed his notice of appeal, had "substantially complied" with section 1237.5 in that he filed an unverified "written statement" with his notice. (People v. Forrest, supra, 221 Cal.App.3d 675, 677-678, fn. 1, 270 Cal.Rptr. 573.)

In People v. Grey, supra, 225 Cal.App.3d 1336, 275 Cal.Rptr. 572, the court rejected this means of reaching the merits of the appeal. The court observed, "The Forrest court did not set out in haec verba the 'written statement' at issue or how or in what manner the unverified statement substantially complied with section 1237.5. Nor did it state any reasons for this departure from the clearly stated statutory requirements of section 1237.5. We part company with the Forrest court in that, in our view, a clear reading of section 1237.5 requires verification under oath or penalty of perjury of the written statement." (Id. at pp. 1338-1339, 275 Cal.Rptr. 572.) We agree with this criticism and decline to follow Forrest.

Although it rejected Forrest, the Grey court used a more indirect route to reach the merits of the appeal. There, since the notice of appeal was signed by defense counsel but was not verified, the court reasoned that counsel had prepared it. (People v. Grey, supra, 225 Cal.App.3d 1336, 1338-1339, 275 Cal.Rptr. 572.) The court noted that the failure to file a sworn statement had the same effect as a failure to file any notice of appeal: the appeal is inoperative. The court then reasoned that a defendant should be able to cure the former defect in the same way the latter defect can be cured: "If the defendant cannot show that the failure to file an effective notice of appeal 'is attributable to negligence or inaction on the part of custodial officials, a dereliction of duty by counsel, or some other cause not the fault of the party seeking to appeal, relief is not available.' " (Id. at pp. 1338-1340, 275 Cal.Rptr. 572, quoting People v. Casillas (1990) 218 Cal.App.3d 1365, 1366, 267 Cal.Rptr. 700.) 3

The court concluded that because it appeared, trial counsel failed in his duty to assist competently in the filing of the notice of appeal (see § 1240.1 [duty of appointed trial counsel re appeal]; People v. Ribero (1971) 4 Cal.3d 55, 92 Cal.Rptr. 692, 480 P.2d 308 [trial counsel has duty to assist in perfecting appeal] ), "defendant would be entitled to an order relieving him from his deficient notice of appeal." (People v. Grey, supra, 225 Cal.App.3d at p. 1340, 275 Cal.Rptr. 572, emphasis added; cf. also People v. Aguirre (1991) 227 Cal.App.3d 373, 376, fn. 1, 277 Cal.Rptr. 771. [reaching merits because notice of appeal included unsworn statement by defense counsel raising issue that had been raised numerous times in trial court].) Under the circumstances the court decided to consider defendant's appeal on its merits.

We agree with the Grey court's analysis of the showing necessary to obtain relief from the consequences of a failure to comply with section 1237.5. However, we disapprove of its decision to address the merits of the appeal. 4 The court adopted the practice employed by many courts, including, on occasion, this court, 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." (See, e.g. People v. Arwood, supra, 165 Cal.App.3d 167, 211 Cal.Rptr. 307 [treating appeal as petition for writ of habeas corpus]; People v. Young (1991) 228 Cal.App.3d 171, 278 Cal.Rptr. 784 [same]; see also cases cited in People v. Ballard, supra, 174 Cal.App.3d 982, 986-987, 220 Cal.Rptr. 323.)

Recently, in People v. Zamora (1991) 230 Cal.App.3d 1627, 1632-1634, 282 Cal.Rptr. 100, the court criticized such ad hoc dispensations from the procedural requirements of section 1237.5 because the net effect is to nullify the statute. The court opined that "the 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." (Id. at p. 1634, 282 Cal.Rptr. 100; see People v. Guzman (1991) 226 Cal.App.3d 1060, 1066 and fn. 4, 277 Cal.Rptr. 286; In re Chadwick C. (1982) 137 Cal.App.3d 173, 178, fn. 4, 186 Cal.Rptr. 827.) We agree with this view.

The purpose of section 1237.5 is to discourage and weed out frivolous or vexatious appeals following guilty pleas. (People v. Young, supra, 228 Cal.App.3d 171, 179, 278 Cal.Rptr. 784; People v. Aguirre, supra, 227 Cal.App.3d 373, 376, fn. 1, 277 Cal.Rptr. 771.) Although the effectiveness of the statute, especially the version applicable in this case, has been questioned (see People v. Guzman, supra, 226 Cal.App.3d 1060, 1064-1065 and fns. 2 and 3, 277 Cal.Rptr. 286), 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. 5 To resolve an appeal whether or not it is properly before the court simply because it has been filed, will, as the Zamora court observed, only encourage noncompliance section 1237.5.

Under the circumstances, therefore, we conclude that defendant's failure to comply with section 1237.5 precludes our review his appeal. (People v. Cotton (1991) 230 Cal.App.3d 1072, 1079, 284 Cal.Rptr. 757 [merits not reached because of failure to file verified statement]; People v. Zamora, supra, 230 Cal.App.3d 1627, 1634, 282 Cal.Rptr. 100 [same]; People v. Guzman, supra, 226 Cal.App.3d 1060, 1065, 277 Cal.Rptr. 286 [same].)

Motion for Relief from Default

In addition to claiming "substantial compliance" with section 1237.5, defendant filed a motion for relief from the consequences of his failure to comply. 6

Under rule 45, subdivision (e), "The reviewing court for good cause may relieve a party from a default occasioned by any failure to comply with these rules, except the failure to give timely notice of appeal."

To obtain relief, defendant must make an affirmative showing of good cause. (First Nat. Bank v. Haines (1952) 114 Cal.App.2d 708, 709, 250 P.2d 644; Snyder v. Cotton (1950) 98 Cal.App.2d 491, 492, 220 P.2d 572; cf.,...

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