People v. Chavez

• Decision Date: 05 October 1981
• Docket Number: Cr. 21596
• Citation: 124 Cal.App.3d 215,177 Cal.Rptr. 306
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Marciano Carpio CHAVEZ, Defendant and Appellant.

Page 306

177 Cal.Rptr. 306

124 Cal.App.3d 215

PEOPLE of the State of California, Plaintiff and Respondent, v. Marciano Carpio CHAVEZ, Defendant and Appellant.

Cr. 21596.

Court of Appeal, First District, Division 4, California.

Oct. 5, 1981.

Louis C. Castro, Iwama & Castro, San Jose (Court-appointed), for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, Jr., Ann K. Jensen, Deputy Attys. Gen., for plaintiff and respondent.

McCULLUM, Associate Justice. ^*

Defendant Marciano Carpio Chavez was charged in Count I of an information with assault with intent to commit rape (Pen.Code, § 220); ¹ in Count II with burglary (§ 459); and in Count III with assault by means of force likely to produce great bodily injury. (§ 245, subd. (a).) In proceedings conducted pursuant to section 1368 et seq., he was found competent to stand trial. He thereupon entered negotiated pleas of guilty to Counts I and III. Count II was dismissed, and the trial court sentenced him to state prison on Counts I and III. He filed a notice of appeal from the judgment of conviction. The notice was timely, but a certificate of probable cause for the appeal was not requested or filed pursuant to section 1237.5. ² The notice also did not include a statement of grounds for the appeal indicating that section 1237.5 did not apply. (Rule 31(d), Cal.Rules of Court.) ³

Defendant is a Spanish-speaking Mexican national. He is illiterate, and neither speaks nor understands English. He principally contends on the appeal that the trial court committed constitutional error in failing to appoint competent interpreters for him at any stage of the prosecution, with the consequence that he was unable to understand the nature of the proceedings. He also contends that he was unconstitutionally denied the effective assistance of counsel, with regard to the court's failure to appoint interpreters and otherwise; that the determination that he was competent to stand trial was unsupported by substantial evidence; and that prejudicial errors were committed in the proceedings in which he was sentenced. The People argue that he is barred from raising any of these issues, except the sentencing errors claimed, by reason of his failure to obtain a certificate of probable cause pursuant to section 1237.5 (See fn. 2 and the accompanying text, ante.)

The People's position is technically correct (People v. Pinon (1979) 96 Cal.App.3d 904, 910, 158 Cal.Rptr. 425), but the present record demonstrates exceptional circumstances. Defendant was sentenced on June 26, 1980. G. Jack Benge, one of his attorneys (as will appear), filed a notice of appeal in defendant's name on July 2, 1980. The notice stated only that defendant appealed "from the judgment rendered against him on June 26, 1980," and that he "is indigent and he therefore requests that counsel be appointed to represent him in this appeal."

Also on July 2, 1980, Benge filed an "Affidavit ... In Support Of Defendant's Notice Of Appeal And Request For Appointment Of ... Counsel." The affidavit was executed by Benge under oath. After declaring that defendant had been sentenced to state prison on his pleas of guilty, as recited above, Benge alleged in pertinent part as follows: "Defendant Chavez is illiterate and unable to communicate in the English language. The defendant further suffers from a hearing impairment in one ear, and ... is described as possibly functioning within the mental retardation stage. The defendant was transported to the state facility at Vacaville immediately after sentencing and was thus unable to further confer with counsel and to act in filing a notice of appeal ... prior to his departure. The defendant is indigent. In order to safeguard defendant's right to appeal, I now act to file this notice ... on behalf of the defendant and respectfully request that the appointment of ... (counsel) ... be made forthwith, the defendant being without funds or means to secure legal counsel."

The affidavit does not explain why counsel did not make the quoted allegations in a statement applying to the trial court for a certificate of probable cause pursuant to section 1237.5, subdivision (a). (See fn. 2, ante.) The allegations nevertheless stand uncontroverted in the record. If they had been incorporated in a statement pursuant to the statute, the trial court would have been required to consider among other things whether the asserted failure to appoint competent interpreters in the prosecution of this defendant (who cannot speak English and whose capacity to communicate is otherwise impaired) constituted a valid issue to be raised as a ground for appeal. That issue is significant because a non-English-speaking defendant's right to an interpreter is guaranteed by the California Constitution. ⁴ It therefore appears that the trial court would have executed and filed a certificate of probable cause as to the issue. For these reasons, we may consider its merits notwithstanding counsel's failure to invoke section 1237.5 in the trial court. (People v. Chen (1974) 37 Cal.App.3d 1046, 1048, 112 Cal.Rptr. 894, dis. on another ground in People v. Jimenez (1978) 21 Cal.3d 595, 608, 147 Cal.Rptr. 172, 580 P.2d 672; see also People v. Vest (1974) 43 Cal.App.3d 728, 731-732, 118 Cal.Rptr. 84 (appeal in noncompliance with section 1237.5 treated as petition for writ of habeas corpus and decided on merits).)

The decisions just cited have been criticized on the ground that they frustrate the principle of "judicial economy" which they purport to serve, but which is the purpose of section 1237.5 itself. (People v. Pinon, supra, 96 Cal.App.3d 904 at pp. 908-909, 158 Cal.Rptr. 425.) However, the above-quoted allegations in the affidavit filed by attorney Benge would clearly entitle defendant to relief from his default in failing to comply with the statute. (Cf. People v. Ribero (1971) 4 Cal.3d 55, 64-66, 92 Cal.Rptr. 692, 480 P.2d 308.) That relief would involve our directing the preparation of a statement pursuant to section 1237.5, subdivision (a), at this time, and that the appeal proceed if the trial court thereupon executed a certificate of probable cause pursuant to subdivision (b) of the statute and rule 31(d). (See People v. Ribero, supra, at p. 66, 92 Cal.Rptr. 692, 480 P.2d 308.)

Such action would inevitably result in the return to this court of an appeal which has already been briefed in full on its merits. The prospective consequences would defeat the principle of "judicial economy"in fact, and their equivalent was not involved or portended in any of the conflicting decisions previously cited. (See People v. Pinon, supra, 96 Cal.App.3d 904 at pp. 907-909, 158 Cal.Rptr. 425; People v. Chen, supra, 37 Cal.App.3d 1046 at pp. 1048-1049, 112 Cal.Rptr. 894; People v. Vest, supra, 43 Cal.App.3d 728 at pp. 731-732, 118 Cal.Rptr. 84.) They warrant our consideration of the appeal at this time, notwithstanding the problem involving section 1237.5. We proceed accordingly.

Article I, section 14, was added to the Constitution in 1974. Before that, the courts had held that the appointment of an interpreter in criminal proceedings was required whenever it was "necessary" as a matter of due process. (See People v. Annett (1967) 251 Cal.App.2d 858, 861-862, 59 Cal.Rptr. 888; People v. Estany (1962) 210 Cal.App.2d 609, 611, 26 Cal.Rptr. 757; In re Muraviov (1961) 192 Cal.App.2d 604, 606, 13 Cal.Rptr. 466; People v. Hernandez (1957) 150 Cal.App.2d 398, 400, 309 P.2d 969.) Article I, section 14, now grants a non-English-speaking defendant the distinct right to an interpreter "throughout the proceedings." (See fn. 4, ante.)

More than a dozen court appearances were made by defendant in the superior court. He was represented on these occasions by Mr. Benge (the affiant quoted above) or by Mr. Wagner, Benge's associate. Defendant first appeared on December 5, 1979, when he was arraigned on the information. Benge and Wagner appeared with him as defense counsel. Benge, who is apparently conversant in Spanish, was sworn and acted as an interpreter. Defendant did not enter a plea, and the cause was continued. On December 19, 1979, the criminal proceedings were suspended and proceedings were commenced on the question of defendant's competence to stand trial. Reports from alienists were filed in January of 1980. ⁵ On January 9, through Benge, defendant waived a jury trial and other rights in the pending proceedings. The court thereupon found that he was competent to stand trial and ordered the criminal proceedings reinstituted. There is no indication in the record that anyone acted as an interpreter on this occasion.

Subsequent events occurred in 1980 as follows: As a result of the determination that defendant was competent to stand trial, a preliminary examination was conducted on January 24. He was held to answer, and he was again arraigned in the superior court on January 30. The record of this arraignment shows that defense counsel Benge was "acting as interpreter," but not that he was sworn. He waived a reading of the information, and no plea was entered. He appeared with defendant on subsequent occasions at which the cause was routinely continued. The record does not show whether Benge or anyone else acted as an interpreter on these occasions.

The case was called on April 9 for the entry of negotiated pleas. Benge, who was present with defendant as his attorney, suggested to the court that it would be "appropriate under the circumstances to have actually a translator for Mr. Chavez (defendant)." The court appointed Dolores Espinoza to act as an interpreter. After she was sworn, the court announced its understanding that negotiated pleas of guilty to Counts I and III of the information were to be entered. While defendant was being questioned for this purpose, the interpreter stated that he (defendant) was not feeling well. The...