People v. Mendez

• Decision Date: 22 October 1997
• Docket Number: No. E017322,E017322
• Citation: 68 Cal.Rptr.2d 525,58 Cal.App.4th 773
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 8188, 97 Daily Journal D.A.R. 13,203 The PEOPLE, Plaintiff and Respondent, v. Trino Villa MENDEZ, Defendant and Appellant.

Page 525

68 Cal.Rptr.2d 525

58 Cal.App.4th 773, 97 Cal. Daily Op. Serv. 8188,

97 Daily Journal D.A.R. 13,203

The PEOPLE, Plaintiff and Respondent, v. Trino Villa MENDEZ, Defendant and Appellant.

No. E017322.

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

Oct. 22, 1997.

Certified for Partial Publication. ^*

Rehearing Denied Nov. 18, 1997.

Review Granted Feb. 3, 1998.

[58 Cal.App.4th 775] Phillip I. Bronson, under appointment by the Court of Appeal, Encino, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Esteban Hernandez and Jeffrey J. Koch, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RICHLI, Associate Justice.

Defendant Trino Villa Mendez (defendant) was charged with one count of murder (Pen.Code, § 187, subd. (a)), with a personal deadly weapon use enhancement (Pen.Code, § 12022, subd. (b)), and one count of kidnapping (Pen.Code, § 207, subd. (a)). A prior serious felony conviction enhancement (Pen.Code, § 667, subd. (a)) and a prior prison term enhancement (Pen.Code, § 667.5, subd. (b)) were also alleged. Pursuant to a plea bargain, defendant pleaded guilty to second degree murder. All other charges and allegations were dismissed. On November 9, 1995, he was sentenced to 15 years to life in prison.

Defendant's trial counsel filed a timely notice of appeal, which recited, "This appeal is based on the sentence or other matters occurring after the plea." On December 12, 1995, the record on appeal was filed. On December 29, 1995, we appointed appellate counsel. On May 2, 1996, defendant's appellate counsel filed an application for a certificate of probable cause. On May 8, 1996, the trial court issued the requested certificate.

Defendant contends: (1) after he was found incompetent to stand trial, and was thereafter certified competent and returned to court for trial, the trial court erred by failing to hold a hearing into whether he was indeed competent; or alternatively, Penal Code section 1372, subdivision (c), is unconstitutionally vague with respect to whether such a hearing is required; and (2) the trial court erred in calculating presentence custody credits.

In the published portion of this opinion, we hold defendant's first contention is barred because it goes to the validity of his guilty plea, and he failed to request a certificate of probable cause within 60 days after the judgment was rendered. (Pen.Code, § 1237.5; Cal. Rules of Court, rule 31(d).) ¹ We therefore respectfully disagree with People v. Clark (1996) 51 Cal.App.4th 575, 59 Cal.Rptr.2d 234 and People v. Vento (1989) 208 Cal.App.3d 876, 256 Cal.Rptr. 497. In the unpublished portion of this opinion, we hold defendant's second contention is barred because he failed to raise it in the trial court. (Pen.Code, § 1237.1.)

I FAILURE TO MAKE A TIMELY REQUEST FOR A CERTIFICATE OF PROBABLE CAUSE

On our own motion, we noted that the certificate of probable cause was untimely and we asked the parties to file supplemental briefs addressing the significance of this fact. [Order filed 9/4/97] We conclude it requires us to dismiss this appeal.

Penal Code section 1237.5 (section 1237.5) provides, as pertinent here: "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty ..., except where both of the following are met:

"(a) The defendant 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.

"(b) The trial court has executed and filed a certificate of probable cause for such appeal with the county clerk."

"Notwithstanding the broad language of section 1237.5, it is settled that two types of issues may be raised in a guilty or nolo contendere plea appeal without issuance of a certificate: (1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. [Citations.]" (People v. Panizzon (1996) 13 Cal.4th 68, 74-75, 51 Cal.Rptr.2d 851, 913 P.2d 1061.)

The first paragraph of rule 31(d) implements section 1237.5. It provides, as pertinent here: "If a judgment of conviction is entered upon a plea of guilty ..., the defendant shall, within 60 days after the judgment is rendered, file as an intended notice of appeal the statement required by section 1237.5 of the Penal Code; but the appeal shall not be operative unless the trial court executes and files the certificate of probable cause required by that section. Within 20 days after the defendant files the statement the trial court shall execute and file either a certificate of probable cause or an order denying a certificate...." (Italics added.)

The second paragraph of rule 31(d) implements the judicially recognized exceptions to section 1237.5. It provides: "If the appeal from a judgment of conviction entered upon a plea of guilty ... is based solely upon grounds (1) occurring after entry of the plea which do not challenge its validity or (2) involving a search and seizure, the validity of which was contested pursuant to section 1538.5 of the Penal Code,the provisions of section 1237.5 of the Penal Code ... are inapplicable, but the appeal shall not be operative unless the notice of appeal states that it is based upon such grounds."

"The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty ... pleas. [Citations.] The objective is to promote judicial economy 'by screening out wholly frivolous guilty ... plea appeals before time and money is spent preparing the record and the briefs for consideration by the reviewing court.' [Citations.]" (People v. Panizzon, supra, 13 Cal.4th at pp. 75-76, 51 Cal.Rptr.2d 851, 913 P.2d 1061, quoting People v. Hoffard (1995) 10 Cal.4th 1170, 1179, 43 Cal.Rptr.2d 827, 899 P.2d 896.)

"Where a criminal appellant has not complied with rule 31(d), either by obtaining a certificate (first paragraph) or by stating noncertificate grounds in the notice of appeal (second paragraph), the appeal is not 'operative.' No record should be prepared and no briefing undertaken for such an inoperative appeal, which is subject to dismissal on the respondent's or the court's own motion. Even when the record has mistakenly been prepared and briefs filed, the appellant should have no expectation that the inoperative appeal will be heard on its merits." (People v. Jones (1995) 10 Cal.4th 1102, 1108, 43 Cal.Rptr.2d 464, 898 P.2d 910, fn. omitted.)

Where a criminal appellant has complied with the second paragraph of rule 31(d), by filing a notice of appeal stating the appeal is based on grounds for which a certificate of probable cause is not required ("noncertificate" grounds), technically the appeal is operative. As a result, a record will be prepared. The appellant nevertheless may not raise any grounds for which a certificate of probable cause is required ("certificate" grounds) unless he or she has also complied with the first paragraph of rule 31(d), by obtaining a certificate of probable cause. (People v. Hoffard, supra, 10 Cal.4th at p. 1180, fn. 8, 43 Cal.Rptr.2d 827, 899 P.2d 896; People v. Jones, supra, 10 Cal.4th at p. 1112 and 1112, fn. 5, 43 Cal.Rptr.2d 464, 898 P.2d 910.) "In such a case, to entertain the plea validity issues on their merits risks countenancing 'an apparently deliberate attempt to bypass statutory procedures and obtain appellate review of [the certificate-requiring issue] improperly.' [Citations.]" (People v. Jones, supra, 10 Cal.4th at p. 1112, 43 Cal.Rptr.2d 464, 898 P.2d 910, brackets in original, quoting People v. Guzman (1991) 226 Cal.App.3d 1060, 1065, 277 Cal.Rptr. 286.)

Here, defendant is attempting to raise a certificate issue, but failed to comply with the first paragraph of rule 31(d). Defendant contends the 60-day time limit is invalid because it is inconsistent with section 1237.5, which has no time limit at all. Admittedly, "[a] court rule is without effect to the extent it is 'inconsistent with statute.' [Citations.]" (People v. Rosbury (1997) 15 Cal.4th 206, 210, 61 Cal.Rptr.2d 635, 932 P.2d 207; accord People v. Hall (1994) 8 Cal.4th 950, 960, 35 Cal.Rptr.2d 432, 883 P.2d 974.) In determining whether a rule of court is inconsistent with statute, we must "measure[ ] the challenged rule against the statutory scheme to determine whether the rule [is] consistent with the intent expressed in the legislative enactment." (California Court Reporters Assn. v. Judicial Council of California (1995) 39 Cal.App.4th 15, 24, 46 Cal.Rptr.2d 44.)

As already discussed, the legislative intent behind section 1237.5 is to prevent the unnecessary expenditure of judicial resources on frivolous appeals by defendants who have pleaded guilty. Rule 31(d) provides that a defendant who has pleaded guilty may file a request for a certificate of probable cause, in lieu of a notice of appeal, within 60 days after judgment is rendered. Obviously, this is intended to parallel rule 31(a), which provides that a defendant may file a notice of appeal within 60 days after judgment is rendered. Giving a defendant who has pleaded guilty more time to appeal than a defendant who has not pleaded guilty would violate the legislative intent behind section 1237.5. We conclude rule 31(d) appropriately supplements, and is not inconsistent with, section 1237.5.

Defendant also contends dismissal is not required because he did obtain a certificate of probable cause, albeit belatedly. He relies on People v. Clark, supra, 51 Cal.App.4th 575, 59 Cal.Rptr.2d 234 and People v. Vento, supra, 208 Cal.App.3d 876, 256 Cal.Rptr. 497. In Clark, the defendant...