People v. Lloyd

• Decision Date: 16 March 1998
• Docket Number: No. S057937,S057937
• Citation: 72 Cal.Rptr.2d 224,17 Cal.4th 658,951 P.2d 1191
• Court: California Supreme Court
• Parties: , 951 P.2d 1191, 98 Cal. Daily Op. Serv. 1870, 98 Daily Journal D.A.R. 2617 The PEOPLE, Plaintiff and Respondent, v. James LLOYD, Defendant and Appellant

Page 224

72 Cal.Rptr.2d 224

17 Cal.4th 658, 951 P.2d 1191, 98 Cal. Daily Op. Serv. 1870,

98 Daily Journal D.A.R. 2617

The PEOPLE, Plaintiff and Respondent, v. James LLOYD, Defendant and Appellant.

No. S057937.

Supreme Court of California

March 16, 1998.

Dennis A. Fischer, Santa Monica, under appointment by the Supreme Court, and John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Pamela C. Hamanaka, Kenneth C. Byrne and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.

MOSK, Justice.

We granted review to address issues, which continue to trouble the appellate courts, concerning the circumstances under which a defendant may take an appeal from a judgment of conviction entered on a plea of guilty or nolo contendere.

I

On September 19, 1994, appellant James Lloyd robbed Sybil Ferguson of about $73 at knife point as she was working in a store in San Pedro selling saltwater taffy. He immediately fled. He was soon arrested without incident.

By information filed in the Superior Court of Los Angeles County, the People charged Lloyd with robbery (Pen.Code, § 211) of the second degree (id., § 212.5, former subd. (b), present subd. (c)), which is a serious felony (id., § 1192.7, subd. (c)(19)), and alleged in substance that he personally used a deadly or dangerous weapon, viz., a knife, in its commission (id., § 12022, subd. (b)). To bring the cause within the so-called "Three Strikes" law (id., § 667, subds. (b)-(i)), ¹ they alleged that he had previously been convicted of these serious and/or violent felonies: (1) a 1985 conviction of residential burglary (Pen. Code, § 459); (2) another 1985 conviction of residential burglary; (3) a 1991 conviction of robbery, with a weapon-use finding; and (4) a 1991 conviction of assault with a deadly weapon (id., § 245, subd. (a)(1)), with a weapon-use finding. Among other things, they alleged that, prior to the present serious felony, he had previously been convicted of these serious felonies on charges brought and tried separately (id., § 667, subd. (a)(1)): (1) the first 1985 residential burglary conviction; (2) the second 1985 residential burglary conviction; (3) the 1991 robbery and assault with a deadly weapon convictions, each with its weapon-use finding; and, apparently again, (4) the first 1985 residential burglary conviction. They also alleged that he had served a prior prison term for these felonies (id., § 667.5, subd. (b)): (1) the second 1985 residential burglary conviction; (2) a 1988 conviction of commercial burglary (id., § 459); (3) a 1991 conviction of grand theft of a motor vehicle (id., former § 487h, subd. (a); see id., § 487, subd. (d)); and (4) the 1991 robbery and assault with a deadly weapon convictions, each with its weapon-use finding.

Lloyd pleaded not guilty to the charge with a denial of the allegations.

After the cause was called for trial by jury, Lloyd withdrew his original not guilty plea with his denial of the allegations, and entered a new and different plea of nolo contendere. He did so with the superior court's leave. He also did so without a plea bargain -- being motivated, according to the superior court, by a desire "to spare the [victim] in this case," who was then 64 years of age. The superior court found him guilty of the charge with adverse findings on the allegations. He had evidently offered to plead guilty to second degree robbery, apparently in exchange for the striking of some of the allegations, in order to obtain a term of 25 years to life in prison, but the People had not accepted. He had been informed by counsel that, in the period prior to sentencing, that "there might be some decisions by the higher courts which would change the way in which priors are imposed." ² At that time, People v. Superior Court (Romero)(1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 (hereafter Romero ) was pending before us on review; it presented the issue whether a trial court has authority to strike an allegation, or vacate a finding, of a prior serious and/or violent felony conviction under the Three Strikes law, on its own motion, in furtherance of justice.

At the sentencing hearing, which was continued more than six months in order to wait, futilely it turned out, for pertinent "decisions by the higher courts," the superior court expressed a belief to the effect that, except as to the prior-prison-term findings, it did not have authority to vacate. Lloyd expressed a desire to preserve the issue in the event that we should hold favorably. At his urging, the superior court indicated for the record that it would have considered vacating one or more of the other findings, on its own motion, in furtherance of justice. Rendering a judgment of conviction, it proceeded to impose sentence, including a term of forty-six years to life in prison: an indeterminate term of twenty-five years to life for second degree robbery because there was more than one finding of a prior serious and/or violent felony conviction under the Three Strikes law; ³ a term of one year additional and consecutive for the weapon-use finding; and a term of five years additional and consecutive for each of the four findings of a prior serious felony conviction on charges brought and tried separately. It vacated the four prior-prison-term findings. Lloyd expressed an intent to appeal as to sentence.

In conformity with his expressed intent, Lloyd filed a notice of appeal from the judgment of conviction as to sentence.

An appeal was docketed in the Second Appellate District of the Court of Appeal, and was assigned to Division Seven thereof.

While Lloyd's appeal was pending, we handed down our decision in Romero, wherein we held, in pertinent part, that a trial court has authority to vacate a finding of a prior serious and/or violent felony conviction under the Three Strikes law, on its own motion, in furtherance of justice.

Lloyd filed his opening brief, claiming that the superior court erred to the extent that it concluded that it could not do what we held in Romero it could.

The People moved to dismiss Lloyd's appeal, claiming that Lloyd had not complied with section 1237.5 of the Penal Code (hereafter section 1237.5) and rule 31(d) of the California Rules of Court (hereafter rule 31(d)), which require a statement of grounds by the defendant and a certificate of probable cause by the trial court for the taking of an appeal from a judgment of conviction entered on a plea of guilty or nolo contendere. Lloyd opposed, claiming that he had in fact complied insofar as he had to.

Granting the People's motion, the Court of Appeal issued an order dismissing Lloyd's appeal.

Thereupon, on Lloyd's petition, we granted review.

II

Section 1237.5 states the general rule: A defendant may not take an appeal from a judgment of conviction entered on a plea of guilty or nolo contendere unless: (1) the defendant himself has "filed with the trial court a written statement, executed under oath or penalty of perjury[,] showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings"; and (2) the trial court has "executed and filed a certificate of probable cause for such appeal with the county clerk."

As we recently explained in People v. Panizzon (1996) 13 Cal.4th 68, 51 Cal.Rptr.2d 851, 913 P.2d 1061 (hereafter sometimes Panizzon ), and People v. Jones (1995) 10 Cal.4th 1102, 43 Cal.Rptr.2d 464, 898 P.2d 910 (hereafter sometimes Jones ), the first paragraph of rule 31(d) implements this general rule by providing, inter alia, as follows: An appeal of this sort may not be taken unless the defendant files the statement of grounds "as an intended notice of appeal," and does not become "operative" unless the trial court "executes and files the certificate of probable cause...." (Rule 31(d); see People v. Panizzon, supra, 13 Cal.4th at p. 75, 51 Cal.Rptr.2d 851, 913 P.2d 1061; People v. Jones, supra, 10 Cal.4th at p. 1106, 43 Cal.Rptr.2d 464, 898 P.2d 910.)

Section 1237.5 has been held to admit an exception to the general rule: A defendant may take an appeal from a judgment of conviction entered on a plea of guilty or nolo contendere without a statement of grounds by the defendant and a certificate of probable cause by the trial court if he (1) "seek[s] appellate review of the validity of a search or seizure" contested "under section 1538.5" of the Penal Code (People v. West (1970) 3 Cal.3d 595, 601, 91 Cal.Rptr. 385, 477 P.2d 409; accord, People v. Panizzon, supra, 13 Cal.4th at p. 74, 51 Cal.Rptr.2d 851, 913 P.2d 1061; People v. Jones, supra, 10 Cal.4th at p. 1106, 43 Cal.Rptr.2d 464, 898 P.2d 910); or (2) "assert[s] only that errors occurred in the ... adversary hearings conducted by the trial court for the purpose of determining the degree of the crime and the penalty to be imposed," and does "not attempt[ ] to challenge the validity of" the "plea" itself (People v. Ward (1967) 66 Cal.2d 571, 574, 58 Cal.Rptr. 313, 426 P.2d 881; accord, People v. Panizzon, supra, 13 Cal.4th at p. 74, 51 Cal.Rptr.2d 851, 913 P.2d 1061; People v. Jones, supra, 10 Cal.4th at p. 1106, 43 Cal.Rptr.2d 464, 898 P.2d 910).

As we also recently explained in Panizzon and Jones, the second paragraph of rule 31(d) implements this exception to the general rule by providing as follows: An appeal of this sort may be taken without a statement of grounds by the defendant and a certificate of probable cause by the trial court if it is "based solely upon grounds (1) occurring after entry of the plea which do not challenge its validity or (2) involving a search or seizure, the validity of which was contested pursuant to section 1538.5 of the Penal Code"; it does not become "operative," however, "unless the notice of appeal states that it is based upon such grounds." (...