People v. Hernandez

• Decision Date: 28 May 1992
• Docket Number: No. E009831,E009831
• Citation: 6 Cal.App.4th 1355,8 Cal.Rptr.2d 324
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Sal Orozco HERNANDEZ, Defendant and Appellant.

Page 324

8 Cal.Rptr.2d 324

6 Cal.App.4th 1355

PEOPLE of the State of California, Plaintiff and Respondent, v. Sal Orozco HERNANDEZ, Defendant and Appellant.

No. E009831.

Court of Appeal, Fourth District, Division 2, California.

May 28, 1992.

As Modified on Denial of Rehearing

June 24, 1992.

Review Denied Aug. 12, 1992.

[6 Cal.App.4th 1357] John M. Polakovic, Ontario, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., and Janelle B. Davis and Keith I. Motley, Supervising Deputy Attys. Gen., for plaintiff and respondent.

OPINION

DABNEY, Associate Justice.

Following the denial of his non-statutory motions to dismiss on speedy trial grounds and for the failure to insure the availability of a material witness (see People v. Mejia (1976) 57 Cal.App.3d 574, 129 Cal.Rptr. 192), defendant and appellant Sal Orozco Hernandez entered a plea of guilty to the charge of manufacturing a controlled substance, to wit, methamphetamine. (Health & Saf.Code, § 11379.6, subd. (a).) On appeal, he argues that the trial court erred in denying these motions. We agree with the People that the issues did not survive the entry of defendant's guilty plea, and dismiss the appeal.

DISCUSSION

In light of our conclusion, we need not set forth the facts underlying the offense of which defendant was convicted.

A.

Insofar as our research discloses, the cases are virtually uniform in holding that a claim of speedy trial violation--whether statutory or constitutional--does not survive a guilty plea. (See e.g., People v. Stittsworth (1990) 218 Cal.App.3d 837, 841, 267 Cal.Rptr. 280 [statutory]; People v. Lee (1980) 100 Cal.App.3d 715, 717, 161 Cal.Rptr. 162 [constitutional]; People v. Hayton (1979) 95 Cal.App.3d 413, 419, 156 Cal.Rptr. 426 [both].) This court has recently held that the same analysis applies to an attempt to appeal the denial of a Mejia motion. (People v. Lopez (1988) 198 Cal.App.3d 135, 141-142, 243 Cal.Rptr. 590; accord, People v. McNabb (1991) 228 Cal.App.3d 462, 470-471, 279 Cal.Rptr. 11.) Thus, we regard the law as settled, although we feel constrained to note our disagreement with the one case disclosed by our research which suggests a contrary result.

In People v. Stittsworth, supra, the court observed that in Avila v. Municipal Court (1983) 148 Cal.App.3d 807, 196 Cal.Rptr. 286, it was held that a misdemeanor defendant's speedy trial argument does survive his guilty plea. Although the Avila court noted that the limitations of Penal Code section 1237.5 ¹ on appeals following guilty pleas did not expressly apply to misdemeanors, it also found that a more substantive difference justified its holding.

The court began with the principle that a felony defendant cannot obtain reversal of his conviction on speedy trial grounds absent a clear showing of prejudice, and then noted that in People v. Hayton, supra, 95 Cal.App.3d at p. 419, 156 Cal.Rptr. 426, it was pointed out that where a defendant pleads guilty, no evaluation of prejudice in this respect can be made because "there are no facts to be assessed." The Avila court, however, found that a misdemeanor defendant can always show prejudice from the denial of his motion, because if his motion had been granted, the case--unlike a felony--could never have been refiled. Thus, it found the Hayton analysis irrelevant and permitted the defendant to raise the issue after a plea of guilty.

Stittsworth distinguishes Avila on the same basis that the latter court used to distinguish Hayton--the procedural differences in the prosecution of misdemeanors and felonies. We feel obliged to deal further with the problem, because it appears to us that although Avila is on its face inapposite where the prosecution can refile charges, it could support defendant's position in a case such as this, where defendant's speedy trial motion is based on constitutional grounds. ²

Avila reasons that a defendant who can automatically show prejudice resulting from the denial of his motion should be able to raise the issue on appeal following a guilty plea; this rationale applies to a felony defendant who argues that his defense was hampered by unconstitutional pre-trial delays.

A defendant seeking dismissal under the California constitutional speedy trial guarantee must show that he has been prejudiced by the delay. (Serna v. Superior Court, supra, 40 Cal.3d at p. 249, 219 Cal.Rptr. 420, 707 P.2d 793.) Under the federal guarantee, when a showing of actual prejudice is made, a retrial is also barred. (See Crockett v. Superior Court (1975) 14 Cal.3d 433, 440 at fn. 8, 121 Cal.Rptr. 457, 535 P.2d 321.) In our view, a defendant who is required to show that he has been prejudiced in order to obtain a dismissal on constitutional grounds is entitled to raise that dismissal as a bar to a future prosecution; where a defendant has shown that delay has caused witnesses or evidence to be lost, it is apparent that the situation will not be improved at the time of a later trial. Crockett v. Superior Court, supra, holds that a defendant who has obtained a statutory dismissal can only resist a refiling of the charges by showing prejudice; however, if the defendant has already made this showing, section 1387 does not permit refiling. ³

This lengthy exegesis has been necessary to explain our difference with Avila. A felony defendant who argues that his constitutional speedy trial motion was wrongly denied can claim the same immunity from further prosecution that is routinely available to the misdemeanor defendant. (Indeed, any felony defendant against whom charges had once been dismissed would, under Avila, have the right to raise the issue on appeal despite his guilty plea, although a defendant as to whom there had been no previous dismissal would not.) However, we hold that this circumstance does not represent the "prejudice" which permits a defendant to raise an issue on appeal after he has pleaded guilty.

The Avila court's discussion of Hayton reveals that it confused the "prejudice" which justifies granting a motion to dismiss with the "prejudice" which results from the denial of that motion. Hayton correctly sets out the limited extent to which an appeal can constitute an attack on the "legality of the proceedings" under section 1237.5, which does not include an objection based on delay in prosecution. (See Townsend v. Superior Court (1975) 15 Cal.3d 774, 781, 126 Cal.Rptr. 251, 543 P.2d 619.) It held that where a defendant pleads guilty, his admission moots his claim that the passage of time frustrated his power to establish his innocence; he cannot show prejudice. These comments go to the essence of the limitations in section 1237.5--that once a defendant pleads guilty, he can no longer raise any issue going to guilt or innocence. (See also People v. Ribero (1971) 4 Cal.3d 55, 63, 92 Cal.Rptr. 692, 480 P.2d 308.)

Obviously, whenever a trial court denies a defendant's motion which, if granted, would have made a favorable termination more likely, that defendant suffers "prejudice." This is true not only where the motion would lead to a dismissal with no refiling of charges, but also where the motion would lead to acquittal at trial, with retrial barred by the double jeopardy clause. The reasoning of Avila would permit a defendant to raise any issue on appeal after a plea of guilty, by arguing that, had his motion been granted, he could not have been successfully prosecuted at any time. We think the absurdity of such a position is obvious, and we reject the application of Avila beyond its facts. ⁴

B.

Defendant (to his credit) did not raise this challenge to the authority of Hayton and its progeny, which we dispose of prophylactically. Defendant's attack on these holdings is limited to the argument that "[a] reading of the plea bargain in the instant case and of the certificate of probable cause issued by the trial judge, clearly shows that the issues set forth in appellant's opening brief were preserved, and further, that part of the plea agreement was that the defendant remain released on his own recognizance pending the appeal." These contentions are incorrect, irrelevant, or both.

As pertinent to this contention, the change of plea form signed by defendant merely recites that "DEFT REMAIN FREE PENDING APPEAL...." In accepting the plea, the court merely ensured that defendant understood the rights he was giving up and that the court was bound only by a mid-term "lid." At the actual sentencing, the court apparently signed a certificate of probable cause (Pen.Code, § 1237.5), as to which it is only apparent that some earlier discussions had been held. ⁵ The record contains no representation by the court that an appeal would be permitted, nor any understanding that defendant's plea was conditioned upon such an assumption.

Furthermore, the trial court's acquiescence in a defendant's expressed intention to appeal is wholly ineffective to confer jurisdiction on the appellate court if the issue proposed to be raised is in fact not cognizable on appeal. "Obtaining a certificate of probable cause does not make cognizable those issues which have been waived by a plea of guilty." (People v. Kaanehe (1977) 19 Cal.3d 1, 9, 136 Cal.Rptr. 409, 559 P.2d 1028; ...