People v. Ivester

• Decision Date: 17 October 1991
• Docket Number: D013585,Nos. D009731,s. D009731
• Citation: 235 Cal.App.3d 328,286 Cal.Rptr. 540
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Donald IVESTER, Defendant and Appellant. In re Donald IVESTER, on Habeas Corpus.

Page 540

286 Cal.Rptr. 540

235 Cal.App.3d 328

The PEOPLE, Plaintiff and Respondent, v. Donald IVESTER, Defendant and Appellant In re Donald IVESTER, on Habeas Corpus.

Nos. D009731, D013585.

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

Oct. 17, 1991.

As Modified Nov. 15, 1991.

[235 Cal.App.3d 332] Robert Wayne Gehring, Fallbrook, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Janelle B. Davis and John T. Swan, Deputy Attys. Gen., for plaintiff and respondent.

WIENER, Acting Presiding Justice.

Defendant Donald Ivester agreed to plead guilty to unlawfully manufacturing methamphetamine in excess of one pound (Health & Saf.Code, § 11379.6 subd. (a)) and endangering a child (Pen.Code, § 273a) ¹ in exchange for the district attorney dismissing two additional felonies with which he was charged. In this appeal from the judgment he contends his guilty pleas were unknowingly and involuntarily made. In his consolidated petition for writ of habeas corpus he seeks relief on a similar ground asserting his pleas were induced by his counsel's inaccurate statement that the appellate court would review his unsuccessful motion to disclose the identity of the confidential informant. Although Ivester has failed to file the statement required by section 1237.5 ² we nonetheless examine his appellate arguments to determine whether he was deprived of the effective assistance of counsel. In doing so we conclude defense counsel was deficient in failing to file the statement, but decide counsel's oversight did not actually prejudice Ivester. We therefore affirm the judgment. We also deny his petition for writ of habeas corpus.

THE APPEAL

Ivester's opening brief contains three separate arguments why we must reverse his conviction of manufacturing methamphetamine: (1) the court prejudicially erred in failing to adequately inquire into the factual basis for his plea as required by section 1192.5 ³; (2) he did not knowingly enter his plea because he lacked an understanding of the elements of the offense to which he was pleading guilty; and (3) his guilty plea was involuntarily made and in violation of his right to due process because the court failed to advise him of all the plea's penal consequences. The Attorney General responds by telling us that we may not consider these arguments because Ivester failed to include the grounds for his contentions on the written statement required by section 1237.5.

SECTION 1237.5 IS CONSTITUTIONAL

Initially Ivester asks us to ignore section 1237.5's requirement on the ground the statute is unconstitutional denying him due process and equal protection of the laws under our state and federal constitutions. Ivester reasons as follows.

He says the substantial lag between trial counsel's filing a notice of appeal and the later appointment of appellate counsel after the filing of the appellate record creates a probability the certificate required by section 1237.5 will be incomplete thereby denying a defendant effective appellate review. Ivester's argument is predicated on his assumption that a similar situation does not arise where the defendant has retained counsel who can more readily determine the grounds for appeal and prepare a complete certificate in a timely manner. Ivester contends this disparity is further exacerbated for the indigent appellant where the appellate court, as it did here, denies appointed counsel's later motion to amend the certificate to state grounds omitted by trial counsel or by the defendant acting in pro per.

As sensitive as we are to the professional difficulties confronting appointed appellate counsel, these difficulties do not render section 1237.5 unconstitutional. Among our reasons for this conclusion is our unwillingness to assume in every case the section 1237.5 certificate will be incomplete. Lacking any evidence on this issue we are more inclined to draw on our experience and conclude otherwise. We think that a complete statement is probably the rule and the incomplete one the exception. The appellate court's denial of a request to amend the incomplete statement before briefing is also the exception rather than the rule. Generally the appellate court grants relief in such situations to avoid the precise dilemma posed by this case and to permit the full and complete appellate review of all errors to which a defendant is constitutionally entitled. The fact that there may be exceptions to these general rules is not a sufficient basis for us to declare section 1237.5 unconstitutional. ⁴

THE DETERMINATION OF COUNSEL'S EFFECTIVENESS FROM THE APPELLATE RECORD PERMITS REVIEW

I

Ivester's alternative argument is that even if section 1237.5 is valid, we must nonetheless consider the substance of his appellate contentions to determine whether his counsel was ineffective in failing to prepare and file the requisite statement. Although we agree with his argument we are somewhat surprised to find this narrow procedural issue has spawned, and continues to spawn, considerable debate reflecting diverse appellate views on this issue. ⁵ We say this because the issue involves only when the appellate court will review certain issues following a guilty plea and not whether they are subject to review. In any event some appellate courts committed to a literal interpretation of the statute dismiss appeals which seek review of issues which require the section 1237.5 certificate/statement. ⁶ Other courts emphasizing the combined effect of the defendant's right to effective assistance of counsel and judicial economy reach the merits of the defendant's contentions. ⁷ In the circumstances of this case, we join the latter group. ⁸

II

Fundamental to our system of criminal justice is the defendant's constitutional right to the effective assistance of counsel at all stages of the proceedings. (See Strickland v. Washington (1984) 466 U.S. 668, 684-685, 104 S.Ct. 2052, 2062-2063, 80 L.Ed.2d 674.) California has played an important part in the definition of these rights. In Douglas v. California (1963) 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, holding unconstitutional the then-California practice of having the intermediate appellate court go through the trial court record to determine whether any good could be served by appointment of counsel on appeal, the United States Supreme Court stressed that all defendants, rich and poor, are entitled to the benefit "of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf ..." (Id. at p. 358, 83 S.Ct. at 817.) A few years later in Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, overturning California's procedure which had allowed appointed appellate counsel to withdraw from the appeal by merely filing a no-merit letter, the high court made clear that appointed appellate counsel must protect the rights of indigent defendants to due process and equal protection and that effective appellate representation required active, not passive advocacy on the client's behalf. (In re Smith (1970) 3 Cal.3d 192, 197, 90 Cal.Rptr. 1, 474 P.2d 969 citing Anders, 386 U.S. at pp. 743, 744, 87 S.Ct. at 1399, 1400.)

We therefore cannot overlook Ivester's constitutional right to effective counsel in the appellate process in resolving the procedural question presented. Such a claim may be cognizable on appeal without the necessity of a section 1237.5 statement since it focuses on matters occurring after entry of the plea. (See Cal.Rules of Court, rule 31(d).) If, by neglecting to provide the required statement, counsel failed to reasonably protect Ivester's appellate rights, an appellate court may not simply dismiss the appeal without inquiring further to determine whether counsel's effectiveness can be examined in the appeal itself. If it can, there is no need for a separate habeas petition. (People v. Pope (1979) 23 Cal.3d 412, 425-426, 152 Cal.Rptr. 732, 590 P.2d 859.)

The record certainly contains the initial predicate for our inquiry. Absent a statement showing reasonable constitutional, jurisdictional or other grounds going to the legality of the proceedings we are foreclosed by section 1237.5 from considering the arguments in Ivester's appellate brief. In such circumstances where the statement is the sine qua non for appellate review the responsibility for its filing or assisting his client in doing so rested with Ivester's trial counsel. (People v. Santos, supra, 60 Cal.App.3d 372, 376-377, 131 Cal.Rptr. 426 citing People v. Davis (1967) 255 Cal.App.2d 907, 909, 64 Cal.Rptr. 1; see also People v. Ribero, supra, 4 Cal.3d 55, at p. 65, fn. 6, 92 Cal.Rptr. 692, 480 P.2d 308.) In failing to do so where he personally signed the notice of appeal Ivester's lawyer breached the duty he owed to his client. Whether that breach prejudiced Ivester is a separate question, but one which we must answer. (Strickland v. Washington, supra, 466 U.S. 668, 691-696, 104 S.Ct. 2052, 2066-2069, 80 L.Ed.2d 674.)

The holdings in those cases noted earlier which dismiss appeals lacking the requisite certificate/statement do not preclude appellate review in a petition for writ of habeas corpus questioning the effectiveness of counsel. For example People v. Pinon, supra, 96 Cal.App.3d 904, 158 Cal.Rptr. 425 which made clear the purposes underlying section 1237.5 would be implemented only if there were compliance with its procedures implicitly invited a habeas petition pointing out "there is nothing in the record before us to indicate that defendant sought to procure a certificate of probable cause or that he informed counsel that he wished to attack on appeal the validity of his guilty plea." (Id. at p. 909, 158 Cal.Rptr. 425.) Pinon in effect told counsel how to plead the habeas petition. Another illustration is People v. Ballard, supra, 174 Cal.App.3d 982, 220...