People v. Dena

• Decision Date: 30 May 1972
• Docket Number: Cr. 6248
• Citation: 102 Cal.Rptr. 357,25 Cal.App.3d 1001
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. David Bobby DENA, Defendant and Appellant.

Page 357

102 Cal.Rptr. 357

25 Cal.App.3d 1001

The PEOPLE of the State of California, Plaintiff and Respondent, v. David Bobby DENA, Defendant and Appellant.

Cr. 6248.

Court of Appeal, Third District, California.

May 30, 1972.

Evelle J. Younger, Atty. Gen., by Jack R. Winkler, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

Roy H. Arnold, Sacramento, for defendant and appellant.

KONGSGAARD, ^* Associate Justice.

Defendant appeals from the judgment entered after the trial court's denial of his motion to withdraw his plea of guilty.

Record

An information was filed on March 9, 1971, charging defendant with burglary, in violation of Penal Code section 459. On March 16, 1971, defendant entered a plea of not guilty to the crime of burglary as charged in the information. On April 1, 1971, defendant withdrew his plea of not guilty and entered a plea of guilty to second degree burglary. On April 15, 1971, prior to judgment, defendant moved to withdraw his guilty plea on the ground that material evidence favorable to defendant was willfully suppressed by the district attorney. This motion was denied after an evidentiary hearing. On the basis of his initial guilty plea, defendant was adjudged guilty of violation of Penal Code section 459 and was sentenced to state prison for the term prescribed by law.

Defendant filed notice of appeal from the judgment on April 16, 1971, and defendant's counsel filed a statement under Penal Code section 1237.5. A certificate of probable cause was refused by the trial judge.

On November 10, 1971, this court denied the People's motion to dismiss the appeal.

Questions Presented

1. Failure to comply with Penal Code section 1237.5 (certificate of probable cause).

2. Suppression of evidence by the prosecution.

3. Inadequacy of counsel.

At the threshold we are confronted with a contention by the People that defendant's appeal is defective because there has not been compliance with section 1237.5 of the Penal Code. This section provides that an appeal cannot be taken from a judgment of conviction upon a plea of guilty unless (a) the defendant files with the trial court a statement showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings, and (b) the trial court executes and files a certificate of probable cause for such appeal. Defendant's counsel filed a statement alleging the plea of guilty was involuntary because it was induced by false information furnished to him by the district attorney. The trial court refused to grant a certificate of probable cause on the ground that such certificate was not necessary because the appeal was based upon alleged errors occurring after the entry of plea.

The requirements of Penal Code section 1237.5 have been held inapplicable to an appeal from a conviction entered pursuant to a guilty plea where the defendant asserted errors in proceedings held subsequent to the plea. (In re Harrell (1970) 2 Cal.3d 675, 706, 87 Cal.Rptr. 504, 470 P.2d 640; People v. Delles (1968) 69 Cal.2d 906, 909, 73 Cal.Rptr. 389, 447 P.2d 629; People v. Ward (1967) 66 Cal.2d 571, 574, 58 Cal.Rptr. 313, 426 P.2d 881; People v. Tracy (1970) 12 Cal.App.3d 94, 102, fn. 2, 90 Cal.Rptr. 375; People v. Barteau (1970) 10 Cal.App.3d 483, 486, 89 Cal.Rptr. 139.) On the other hand the rule is well established that section 1237.5 must be satisfied where the challenge is to the validity of the plea itself rather than to some impropriety in post-plea proceedings. (People v. Ribero (1971) 4 Cal.3d 55, 92 Cal.Rptr. 692, 480 P.2d 308; People v. McMillan (1971) 15 Cal.App.3d 576, 578, 93 Cal.Rptr. 296; People v. Moore (1970) 5 Cal.App.3d 612, 616, 85 Cal.Rptr. 405; People v. Perez (1968) 259 Cal.App.2d 371, 375, 66 Cal.Rptr. 473.)

In Ribero, supra, at pages 63--64, 92 Cal.Rptr. at page 697, 480 P.2d at page 313, the court stated: 'In determining the applicability of section 1237.5, the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made. The argument is made that since a motion to withdraw a guilty plea must of necessity be made after the plea, the ruling on the motion is a result of a 'subsequent adversary hearing' . . . If a defendant challenges the validity of his plea by way of a motion to withdraw the plea, he cannot avoid the requirements of section 1237.5 by labelling the denial of the motion as an error in a proceeding subsequent to the plea. (Fn. omitted.) To hold otherwise would be to invite such motions as a matter of course, and would be wholly contrary to the purpose of section 1237.5. In the instant case, since petitioner is challenging the validity of his plea, he is required to comply with section 1237.5.'

Even though the trial judge refused a certificate of probable cause in the case at bench he did in fact order and approve the transcripts on appeal. By doing so the trial court effectively certified defendant's case as a proper one for appeal. Under similar circumstances our Supreme Court in People v. Herrera (1967) 66 Cal.2d 664, 58 Cal.Rptr. 319, 426 P.2d 887, upheld defendant's right to press an appeal. In Herrera, the defendant executed a statement pursuant to section 1237.5 of the Penal Code, but the trial judge did not follow the requirements of the section, i.e., he did not file a certificate of probable cause nor did he deny it. Instead he approved the record on appeal. The court held: 'By approving the transcript on appeal, the trial judge In effect certified defendant's case for appeal. As a result, defendant, who had filed the required statement with the trial court, should not be penalized for the trial court's failure to file a certificate of probable cause.' (Id. at p. 665, 58 Cal.Rptr. at p. 320, 426 P.2d at p. 888.) (Original italics.)

The same result must follow in the case at bench. We hold that defendant's appeal has been properly certified.

Factual Background

On February 6, 1971, at approximately 2:17 a.m., defendant was discovered inside the Farmers Market in Oroville with a bag full of 'foodstuffs' and was arrested on a charge of burglary. It was the unanimous opinion of the officers present that defendant had been drinking but was not intoxicated at the time of the arrest.

The Butte County Sheriff's office, as a matter of routine procedure in felony cases, causes a blood test to be taken of any person arrested as soon as possible after apprehension. Defendant was booked at 2:45 a.m., but his blood sample was not drawn until 3:30 a.m.

Attorney Raoul LeClerc was appointed to represent defendant and immediately commenced his trial preparation. Pursuant to the customary practice of the Butte County district attorney's office, he received permission from a deputy district attorney to examine the district attorney's file and to make copies of those items which interested him. LeClerc received the blood alcohol analysis of defendant, indicating a blood alcohol level of .19 milligrams. To assist him in investigating the defense of diminished capacity, the trial court authorized LeClerc to employ a doctor to advise on the effect of a blood alcohol level of .19 milligrams on the defendant's ability to form the specific intent required in a charge of burglary.

The time that the blood sample was taken did not appear in the district attorney's file except for an indication it was after defendant was booked. LeClerc made further inquiries of the district attorney's office concerning the time the blood sample was taken. He was advised by the district attorney that the customary procedure was to draw the blood sample between time of arrest and time of booking (in this case between 2:17 a.m. and 2:45 a.m.), but that the exact time was not known.

After LeClerc received this information, he consulted with Dr. Wilfred Olson about the possibility of a defense of diminished capacity. Dr. Olson advised LeClerc that a blood alcohol level of .19 taken fifteen minutes after his apprehension would not justify raising the defense of diminished capacity. After conferring with the doctor, LeClerc concluded his only defense had no merit and he advised defendant to change his plea to guilty.

On March 30, Deputy Sheriff Butler, having located the official record of the time of the blood-draw, gave the deputy district attorney a copy of the report which indicated defendant's blood sample had been taken between 3:22 and 3:40 a.m. on the date of the offense, rather than soon after defendant's arrest as originally reported. At no time did the deputy district attorney convey this information to LeClerc.

The scene now shifts to the courtroom where defendant and his counsel appeared on April 1 and requested leave to withdraw the prior plea of not guilty and enter a plea of guilty. The same deputy district attorney was present representing the People. At the hearing, the trial judge carefully and painstakingly inquired of defendant and his counsel the reasons for the change of plea, advised defendant of his constitutional rights under Boykin, ¹ made an inquiry as to the factual basis for the plea and specifically discussed the defense of diminished capacity with defendant's counsel. LeClerc advised the court that diminished capacity was an obvious defense he thoroughly considered and then abandoned after his medical advisor informed him the defense of diminished capacity to negate defendant's intent 'just wasn't there.' ² The court permitted the change of plea.

Deputy Sheriff Tom Butler was present in court on April 1 and heard the colloquy between court and counsel when defendant changed his plea. Butler knew the statement by LeClerc to the court that the blood-draw was made approximately fifteen minutes after the commission of the offense was in error. Butler immediately sent a note via the bailiff to the deputy district attorney advising him LeClerc's statement was in error in that the blood test was actually made an hour and thirteen minutes after...