People v. Natividad

• Decision Date: 19 November 1963
• Docket Number: Cr. 1859
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jesse B. NATIVIDAD, Defendant and Appellant.

Page 237

35 Cal.Rptr. 237

222 Cal.App.2d 438

The PEOPLE, Plaintiff and Respondent, v. Jesse B. NATIVIDAD, Defendant and Appellant.

Cr. 1859.

District Court of Appeal, Fourth District, California.

Nov. 19, 1963.

Hearing Denied Jan. 7, 1964.

Mary E. Harvey, San Diego, for appellant.

Stanley Mosk, Atty. Gen., and William E. James, Asst. Atty. Gen., for respondent.

COUGHLIN, Justice.

The defendant was charged with three counts of issuing a check without sufficient funds, i. e., a violation of § 476a of the Penal Code; entered a plea of guilty on two counts thereof, and the third was dismissed; and made an application for probation, which was granted. No judgment imposing sentence was pronounced. Two years later he was re-arrested and his probation was revoked because he had violated the same. Thereupon judgment was pronounced and he was sentenced to imprisonment in the state prison. He appealed from the judgment; requested this court to appoint counsel to represent him which, after investigation, was denied upon the ground that such an appointment would serve no useful purpose; and thereupon filed a brief on appeal in propria persona. The judgment was affirmed. Concurrently, the Supreme Court of the United States filed its opinion in Douglas v. People of the State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, requiring the appointment of counsel for indigents in all cases on appeal. The defendant petitioned the Supreme Court of this state for a hearing, which was granted, and the cause was retransferred to this court for further consideration. Thereupon, pursuant to the mandate of the Supreme Court of the United States, counsel was appointed as requested; and was granted time for the preparation and filing of a brief on defendant's behalf. In due course appointed counsel filed a memorandum in lieu of such a brief, that disclosed a sincere, able and diligent effort in the premises, in which she stated that the record in the case had been carefully reviewed, including an independent examination of the files of the probation department; concluded that such review revealed no valid ground for an appeal; discussed each of the issues raised by the defendant in the brief filed by him in propria persona; and frankly conceded that no meritorious ground for appeal, not theretofore raised by the defendant, had been found.

We have reconsidered the contentions originally urged by the defendant asserting alleged irregularities in the proceedings as error, viz., (1) that he was not advised concerning the nature of the offense to which he pleaded guilty; (2) that his attorney did not properly represent him; (3) that he was not permitted to contest the charges that he had violated his probation; and (4) that the alleged violations did not in fact occur. Our conclusions are the same as those previously expressed.

The attorney general, representing the respondent herein, moves this court for an order dismissing the appeal upon the ground that it 'presents no appellate objective.' A judgment on a plea of guilty is not appealable on the merits. (Stephens v. Toomey, 51 Cal.2d 864, 870, 338 P.2d 182; People v. Emigh, 174 Cal.App.2d 392, 393, 344 P.2d 851.) However, where, following a plea of guilty an application for probation is granted; imposition of judgment is suspended; thereafter probation is revoked; and a judgment ensues, the validity of the order revoking probation may be reviewed on an appeal from the ensuing judgment (In re Davis, 37 Cal.2d 872, 875, 236 P.2d 579), as may also any irregularities going to the jurisdiction or legality of the proceedings. (Stephens v. Toomey, supra, 51 Cal.2d 864, 870, 338 P.2d 182; see e. g., People v. Alberts, 197 Cal.App.2d 108, 17 Cal.Rptr. 48.) The defendant's contentions in the instant case bring it within the latter rule. The motion for dismissal should be denied.

A complaint charging the defendant with three counts of issuing checks without sufficient funds was filed in the municipal court. After appointment of counsel to represent him, the defendant was arraigned thereon and entered a plea of guilty to two of these counts. Thereupon the third count was dismissed, and the matter was certified to the Superior Court as provided by law. When the case came before the latter court, the judge thereof concluded, although erroneously, that the offenses in question were misdemeanors rather than felonies and remanded the proceedings to the municipal court. In the latter court the defendant again entered a plea of guilty, and again was certified to the Superior Court for pronouncement of judgment. The case came before the Superior Court a second time and, on this occasion, the judge having become aware of his prior erroneous concept respecting the nature of the offenses charged, the matter was retained. The defendant reiterated his plea of guilty, and applied for probation. His application was granted. No judgment was pronounced. Instead, he was placed on probation for five years upon condition that he violate no law; support his family; not maintain a checking account; write no checks; have no blank checks in his possession; and that he be confined in an adult detention facility of the county for one year. After serving less than eight months in such facility, he was released on an order modifying his probation in...