People v. Holland

• Citation: 151 Cal.Rptr. 625,23 Cal.3d 77,588 P.2d 765
• Decision Date: 29 December 1978
• Docket Number: Cr. 19988
• Court: United States State Supreme Court (California)
• Parties: , 588 P.2d 765 The PEOPLE, Plaintiff and Respondent, v. Timothy Neal HOLLAND, Defendant and Appellant.

Page 625

151 Cal.Rptr. 625

23 Cal.3d 77, 588 P.2d 765

The PEOPLE, Plaintiff and Respondent, v. Timothy Neal HOLLAND, Defendant and Appellant.

Cr. 19988.

Supreme Court of California, In Bank.

Dec. 29, 1978.

Timothy Neal Holland, in pro. per.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci and Jerome C. Utz, Deputy Attys. Gen., for plaintiff and respondent.

BIRD, Chief Justice.

Timothy Neal Holland appeals from a judgment of conviction entered upon a plea of guilty to one count of possession of cocaine (Health & Saf. Code, § 11350). Appellant contends that he was denied his constitutional right to counsel when the state unlawfully prevented him from using his savings to retain private counsel. This court agrees. ¹

I

On March 22, 1975, Santa Cruz County law enforcement officers arrested appellant for narcotics offenses and searched his home pursuant to a search warrant. At that time, appellant asked the arresting officers to take possession of $685 in his house to prevent the money from being stolen while he was in jail. The officers seized the money, which represented appellant's life savings. A complaint was subsequently filed alleging a violation of Health and Safety Code section 11352 (sale of cocaine).

On March 28, 1975, during appellant's initial appearance in municipal court, he requested a continuance to retain counsel. "I haven't had the opportunity to confer with the counsel of my choice. . . . I don't want the Public Defender, Your Honor. I would rather retain a counsel of my choice. I would like to have an opportunity to do that." The court granted a one-week continuance.

At his next court appearance on April 4, 1975, appellant stated he still wanted to retain counsel of his choice but had been unable to do so. "I'm trying to get together the money to hire one. And also, the district attorney confiscated my life's savings and I'm trying to get that back." The court did not further question appellant about this problem, but granted another continuance.

On April 16, 1975, appellant stated: "When I appeared before the Court before, I told Your Honor that my life savings had been confiscated, I indicated, at the time of my arrest. I've been trying the last two weeks to get that money." When the court indicated it would appoint the public defender, appellant stated he would rather represent himself for the purpose of filing a motion to secure the return of his money which "the district attorney illegally confiscated . . . ." When the court rejected this suggestion, appellant reluctantly acquiesced in the appointment of a public defender with the understanding that retained counsel could be substituted in at a later time.

Appellant's appointed counsel subsequently moved in municipal court under Penal Code section 1538.5 for the suppression of all the evidence and the return of all the money seized during the March 22, 1975, search of appellant's home. The motion was argued at appellant's preliminary hearing. The court denied the motion and appellant was held to answer for violating Health and Safety Code section 11352.

On November 6, 1975, appellant's counsel orally moved in superior court for the return of the money seized at appellant's home. The court found that appellant was entitled to have his money returned to him. However, when the money was not returned, a written motion for its return was filed on November 28, 1975.

At proceedings held on December 1, 1975, appellant's counsel attempted to argue the motion for the return of appellant's money. While recognizing that the court had previously held the money belonged to appellant, the court refused to entertain appellant's motion. ² Rather, appellant was informed that if the plea bargain offered by the district attorney was not accepted, trial would be set to begin in one week. At that point, appellant entered a plea of guilty to an amended information charging a violation of Health and Safety Code section 11350.

Following the imposition of sentence, appellant filed a timely notice of appeal and a statement in accordance with Penal Code section 1237.5, ³ requesting the issuance of a certificate of probable cause. Appellant specified three bases for appeal: (1) the denial of his constitutional right to the effective assistance of counsel through the unjustified retention of his life savings which were needed to retain private counsel; ⁴ (2) the denial of his "constitutional right of self-representation"; and (3) defects in the search warrant. Although the trial court denied appellant's request for the certificate on March 9, 1976, the court subsequently prepared and filed an extensive record on appeal with the Court of Appeal.

II

In order to appeal from a judgment of conviction in the superior court following a plea of guilty, a defendant must ordinarily comply with the provisions of Penal Code section 1237.5. ⁵ That section authorizes an appeal based on "reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings" and establishes a procedure for effecting such an appeal. The trial court is empowered to review the statement of the grounds of the appeal to preclude those appeals which raise no issues cognizable after a guilty plea or which raise cognizable issues which are "clearly frivolous and vexatious . . . ." (People v. Ribero, supra, 4 Cal.3d at p. 63, fn. 4, 92 Cal.Rptr. 692, 480 P.2d 308; In re Brown (1973) 9 Cal.3d 679, 683, 108 Cal.Rptr. 801, 511 P.2d 1153; People v. Ward, supra, 66 Cal.2d at p. 575, 58 Cal.Rptr. 313, 426 P.2d 881.)

It is not the trial court's responsibility to determine if there was an error in the proceedings. The trial court's sole objective is to eliminate those appeals "having no possible legal basis" by refusing to issue a certificate of probable cause. (People v. Warburton (1970) 7 Cal.App.3d 815, 819, 86 Cal.Rptr. 894; see People v. Kaanehe, supra, 19 Cal.3d at p. 9, 136 Cal.Rptr. 409, 559 P.2d 1028.) Section 1237.5 requires the trial court to certify any arguably meritorious appeal to the appellate courts. Thus, if the statement submitted by the defendant in accordance with section 1237.5 presents any cognizable issue for appeal which is not Clearly frivolous and vexatious, the trial court abuses its discretion if it fails to issue a certificate of probable cause. (See In re Brown, supra, 9 Cal.3d at p. 683, fn. 6, 108 Cal.Rptr. 801, 511 P.2d 1153; People v. Warburton, supra, 7 Cal.App.3d at p. 820, 86 Cal.Rptr. 894.)

When Penal Code section 1237.5 applies, the failure of the trial court to issue a certificate of probable cause precludes appellate review. ⁶ However, if the trial court has, by its statements or conduct, in effect certified the appeal, appellate review is proper. ⁷ For example, this court has held that where ". . . the clerk prepares and the trial court certifies a record on appeal in circumstances where to have denied a certificate . . . would have constituted an abuse of discretion," the appellate court must review appellant's contentions. (In re Brown, supra,9 Cal.3d at p. 683, fn. 6, 108 Cal.Rptr. 801, 511 P.2d 1153.)

This case satisfies the requirements identified in Brown. In his statement of the grounds of his appeal, appellant asserted he was denied the right to counsel. That alleged constitutional defect in the proceedings is cognizable after a plea of guilty. (See In re Brown, supra, 9 Cal.3d at p. 682, 108 Cal.Rptr. 801, 511 P.2d 1153; People v. Ribero, supra, 4 Cal.3d at p. 63, 92 Cal.Rptr. 692, 480 P.2d 308.) As demonstrated, Post, this contention was not clearly frivolous, and a certificate of probable cause should have been issued to permit appellate review of this issue.

Following the filing of appellant's March 19, 1976, request for the incorporation of certain transcripts and documents in the record on appeal, the trial court ordered the preparation of an extensive record on appeal, including many documents not considered part of the normal appellate record. (Cal. Rules of Court, rule 33(a).) While part of this record was arguably prepared to permit appellate review of appellant's challenge to the search warrant, ⁸ numerous transcripts and documents were included which did not relate in any way to that issue. Most of these additional documents and transcripts were specifically requested by appellant.

For example, on appellant's request, the court had reporter's transcripts prepared of the hearings on March 28, 1975, April 4 and 16, 1975, November 6, 1975, and December 11, 1975, and included a copy of appellant's November 28, 1975, motion in the clerk's transcript. During the first three hearings, appellant repeatedly informed the court that he wished to retain private counsel but was unable to do so because the state was unjustifiably holding his life savings. During the November 6th hearing, the superior court first stated that appellant was entitled to the return of his money. The motion filed on November 28th sought to secure the return of appellant's money which the district attorney's office had continued to withhold. At the December 11th hearing on that motion, the court reaffirmed that the money belonged to appellant. While each document was relevant in adjudicating the asserted denial of appellant's right to counsel, none was relevant in adjudicating the challenge to the search warrant. The inclusion of these documents in the record lodged with the Court of Appeal was sufficient to certify for appeal the contention that appellant was denied the right to counsel. ⁹ (See People v. Fulk, supra, 39 Cal.App.3d at p. 853, fn. 1, 114 Cal.Rptr. 567.)

The constitutional right to the effective assistance of counsel is "among the most sacred and sensitive of our civil rights." (Magee v. Superior Court (1973) 8 Cal.3d 949, 954, 106 Cal.Rptr. 647, 650, 506 P.2d 1023, 1026.) That right is "broader than . . . the bare right to legal...