People v. Coley

• Decision Date: 12 January 1968
• Docket Number: Cr. 5783
• Citation: 257 Cal.App.2d 787,65 Cal.Rptr. 559
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Leon Nick COLEY, Defendant and Appellant.

Page 559

65 Cal.Rptr. 559

257 Cal.App.2d 787

PEOPLE of the State of California, Plaintiff and Respondent, v. Leon Nick COLEY, Defendant and Appellant.

Cr. 5783.

Court of Appeal, First District, Division 1, California.

Jan. 12, 1968.

Rehearing Denied Feb. 7, 1968.

Hearing Denied March 6, 1968.

Molly H. Minudri, San Francisco, for appellant (under appointment by the Court of Appeal, First Appellate District).

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Karl S. Mayer, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Associate Justice.

Defendant filed a timely notice of appeal from a judgment pronounced May 24, 1966 which sentenced him to prison following his conviction of possession of heroin in violation of section 11500 of the Health and Safety Code, with an admitted prior conviction in 1954 for the same offense.

On July 2, 1965, defendant had entered a plea of guilty to the offense of possession (§ 11500), reduced from possession for sale in violation of section 11500.5 of the Health and Safety Code, as charged in the indictment, and admitted the prior conviction. Criminal proceedings were suspended under the provisions of section 6451 of the Penal Code (now Welf. & Inst.Code, § 3051), and on July 20, 1965 he was committed to the California Rehabilitation Center for care and treatment. In February 1966, pursuant to the provisions of section 3053 of the Welfare and Institutions Code (formerly Pen.Code, § 6453) He was returned to the trial court for further proceedings in the criminal action. Defendant then challenged the Director of Correction's conclusion that he was not a fit subject for confinement or treatment in a narcotic detention, treatment and rehabilitation facility. The trial court upheld the Director's conclusion, denied the defendant's application to withdraw his guilty plea, and rendered the judgment from which defendant seeks to appeal.

Although there was no compliance with the provisions of section 1237.5 of the Penal Code, ¹ a clerk's transcript and a reporter's transcript were prepared and were certified by the trial judge on July 5, 1966. The defendant urges error (1) in the denial of his motion to dismiss the indictment under the provisions of section 995 of the Penal Code, (2) in the failure to set aside his plea of guilty upon his return from the rehabilitation center, and (3) in the failure to find that the Director abused his discretion in refusing to treat defendant and in returning him to the court for further proceedings. The People question the efficacy of defendant's appeal because of the noncompliance with the provisions of Penal Code, section 1237.5, and urge that in any event the appeal should be limited in scope to review of the proceedings under section 3053 of the Welfare and Institutions Code.

The defendant is entitled to a review of the action of the trial court upholding the Director's conclusion that defendant was not a fit subject for treatment, and to a review of the order denying his motion to withdraw his plea of guilty. Defendant's attempt to attack the sufficiency of the evidence to support his indictment must be rejected because of the state of the record. No error is found in the ruling of the trial court which upholds the Director's conclusion that defendant was not a fit subject for treatment. Since defendant's plea of guilty was tendered and received on the condition he would be accepted for treatment, it was an abuse of discretion to deny his motion to withdraw it. The judgment must be reversed.

Scope of the Appeal

Preliminarily, the People moved to dismiss the appeal because the defendant, who had entered a plea of guilty, failed to file the statement or secure the certificate of probable cause required by the provisions of section 1237.5 of the Penal Code. (People v. Gonzales (1967) 249 A.C.A. 637, 57 Cal.Rptr. 587; and see People v. Davis (1967); 255 A.C.A. 1066, 64 Cal.Rptr. 1.) The defendant then filed a belated statement of probable cause, supported by a certificate of the county clerk, in the trial court. The clerk's certificate concerned his practice, not followed in this case, of notifying a defendant of the requirements of section 1237.5 when those provisions were applicable. On June 18, 1967 the trial court signed and purported to file Nunc pro tunc, as of May 26, 1966, a certificate of probable cause. The motion to dismiss was withdrawn and taken off calendar, and now the People insist that review is limited to examination of the validity of the proceedings under which defendant was returned to the jurisdiction of the court in the criminal action and sentenced.

The People's change in position appears to be required by the interpretation given the provisions of section 1237.5 in People v. Ward (1967) 66 A.C. 596, 58 Cal.Rptr. 313, 426 P.2d 881. There the court stated: 'Different rules apply where a defendant attempts to assert the invalidity of his guilty plea than where he is not seeking to vacate the plea but claims, rather, that errors occurred in the proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. In spite of the fact that section 1237.5 refers generally to an appeal 'from a judgment of conviction upon a plea of guilty' it seems clear that the section was intended to apply only to a situation in which a defendant claims that his plea of guilty was invalid.' (66 A.C. at p. 599, 58 Cal.Rptr. at p. 315, 426 P.2d at p. 883. See also People v. Davis, supra, 255 A.C.A. 1066, 1068, 64 Cal.Rptr. 1; and People v. Rogers (1967) 252 A.C.A. 1081, 1086, 61 Cal.Rptr. 48.)

Thus, the proceedings taken to review the Director's conclusion that the defendant was not a fit subject for treatment may be considered. As hereinafter appears, review of the sufficiency of the evidence to support the indictment is precluded by the insufficiency of the record and other factors. Review of the denial of defendant's motion to withdraw his plea of guilty involves an attempt to assert the invalidity of that plea, and remains dependent on compliance with the provisions of Penal Code, section 1237.5 and rule 31(d).

Defendant asserts that the statute fixes no time within which the statement and certificate must be filed, and that the provisions of the rules do not prohibit the filing of the certificate Nunc pro tunc as of the day following the filing of the notice of appeal. (See Osmont v. All Persons, etc. (1913) 165 Cal. 587, 591--592, 133 P. 480; Wexler v. Goldstein (1956) 146 Cal.App.2d 410, 412--413, 304 P.2d 41; Wells v. Coca Cola Bottling Co. (1956) 140 Cal.App.2d 218, 221--223, 294 P.2d 955; Hess v. Gross (1943) 56 Cal.App.2d 529, 530--532, 133 P.2d 1; and 3 Witkin, Cal.Proc., Judgment, § 15, pp. 1892--1893.)

The People point out that although such entry is permitted to correct a clerical error or omission, or to preserve the legitimate fruits of litigation, it cannot be used to authorize the exercise of jurisdiction by a court when the time within which such jurisdiction could properly be exercised has expired. (In re Skerrett (1889) 80 Cal. 62, 63--64, 22 P. 85; and see People v. Black (1961) 55 Cal.2d 275, 277, 10 Cal.Rptr. 459, 358 P.2d 915.)

The precedents developed under those provisions of section 657 of the Code of Civil Procedure which relate to the necessity of specifying that a new trial was granted for insufficiency of the evidence are instructive. Although at one time a Nunc pro tunc order was permitted to show such a specification, amendments to the statutory law and their development in the cases prohibited such a procedure. (See Opp v. Sykes (1961) 194 Cal.App.2d 208, 211--217, 15 Cal.Rptr. 1, and cases reviewed; and 3 Witkin, Cal.Proc., Attack on Judgment in Trial Court, § 34, subd. (1), p. 2081.) The earlier precedents which allow Nunc pro tunc entry do not avail defendant because they rest on the proposition that the delayed order may be made to truly express the result of jurisdiction which was timely exercised. The later precedents demonstrate a tendency to encourage the finality of judgments, which may be likewise attributed to the detailed provisions of rule 31(d).

It has been suggested that where a timely notice of appeal has been filed, a defendant who is unrepresented by counsel, should be given leave to apply for a certificate of probable cause after the expiration of the time fixed by the rules. (People v. Davis, supra, 255 A.C.A. 1066, 1067, 64 Cal.Rptr. 1.) Davis, like the instant case, involves the situation where there has been a timely filing of a notice of appeal. It is a legitimate extension of the principle of People v. Herrera (1967) 66 A.C. 691 58 Cal.Rptr. 319, 426 P.2d 887, which held that where the notice of appeal and the required statement were filed within the time prescribed by law, and the court approved the transcript on appeal, 'the trial judge In effect certified defendant's case for appeal.' (66 A.C. at p. 692, 58 Cal.Rptr. at p. 320, 426 P.2d at p. 888.) In Herrera the defendant was relieved of any penalty attendant to the trial judge's failure to file the certificate. So here, where the transcripts were approved by the trial judge, there is an implied acknowledgment of probable cause for the appeal, and the Nunc pro tunc certificate merely reflects the true status of the record. The appeal may and should be recognized under the particular circumstances of this case without countenancing an indiscriminate use of Nunc pro tunc certificates to avoid the limitations set forth in rule 31(d).

Rejection for Treatment

Defendant was entitled to a review of the conclusion of the Director of Corrections in order to determine whether there had been an abuse of discretion in rejecting him for treatment. (People v. Hannagan (1967) 248 A.C.A. 121, 129--130, 56 Cal.Rptr. 429; People v. Berry (1967) 247 Cal.App.2d 846, 849--850, 56 Cal.Rptr. 123; People v. McCuiston (1966) 246 Cal.App.2d 799, 804--805, 55 Cal.Rptr. 482; ...