People v. Osorio

• Citation: 239 Cal.Rptr. 333,194 Cal.App.3d 183
• Court: California Court of Appeals
• Decision Date: 31 July 1987
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jeremias OSORIO, Defendant and Appellant. Crim. F007464.

Page 333

239 Cal.Rptr. 333

194 Cal.App.3d 183

The PEOPLE, Plaintiff and Respondent, v. Jeremias OSORIO, Defendant and Appellant.

Crim. F007464.

Court of Appeal, Fifth District, California.

July 31, 1987.

James William Dirks, under appointment by the Court of Appeal, Sacramento, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., and Anthony L. Dicce and Edgar A. Kerry, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

THE COURT ^*

Jeremias Osorio contends on this appeal that he received ineffective representation in the trial court because his counsel refused to file a motion to withdraw his guilty plea. We agree with Osorio; we will remand the case for the limited purpose of permitting such a motion, together with appropriate proceedings if the motion is granted.

FACTS

Osorio was charged in an information with four violations of the Health and Safety Code. Counts I and II alleged transportation, sale or furnishing of heroin and cocaine, respectively. (Health & Saf. Code, § 11352.) Counts III and IV alleged possession of the two substances for sale. (Health & Saf. Code, § 11351.) The probation officer's report, apparently based on police reports, alleged that Osorio and a companion negotiated with undercover officers for the sale of heroin. When they were arrested, Osorio's car was searched and 21.4 grams of heroin were found in the car. Police found 68.2 grams of cocaine hidden in the bar where the negotiations took place.

Osorio entered a guilty plea to count I (sale or transporting of heroin) in return for dismissal of the remaining charges. ¹ At sentencing the court reviewed the probation officer's report, which described the sales transaction and alleged that Osorio was the principal seller. Osorio objected to this claim. He stated that, in view of the information in the report, he wanted to The court deferred sentencing for a few days so that Osorio and his attorney could decide whether to file a motion to withdraw the plea. When the hearing reconvened, counsel stated that he could not, "in good conscience," submit a motion to withdraw the plea even though Osorio still requested such a motion. Counsel then stated: "What Mr. Osorio is indicating to me, Your Honor, is that he would plead, even though he has already entered a plea to 11352, he would enter a plea to 11351. He has indicated he didn't understand what he was pleading to when he entered his plea, and if he didn't, there would be grounds to withdraw the plea."

                withdraw his guilty plea.  Both the trial court and his own counsel tried to dissuade him from this idea, since it would result in reinstatement of the other three counts.  They pointed out to Osorio that his maximum exposure would be increased from five years to "about fifteen years."   Osorio persisted in his request
                

The court noted that the plea form signed by Osorio stated that the maximum sentence he could receive was the upper term of five years, and since that was still true "I don't see where the surprise is." The court then imposed the upper term.

DISCUSSION

Osorio contends that he was entitled to have his attorney prepare and present a motion to withdraw the guilty plea pursuant to Penal Code section 1018. ² He asks us to remand the case so that such a motion can be submitted. He relies chiefly on People v. Brown (1986) 179 Cal.App.3d 207, 224 Cal.Rptr. 476.

Respondent contends that this appeal is barred by Osorio's failure to comply with Penal Code section 1237.5. Respondent also contends the Brown case is wrongly decided and that we should not follow it.

Section 1237.5

Section 1237.5 provides that "[n]o appeal shall be taken by defendant from a judgment of conviction upon a plea of guilty or nolo contendere, except where: (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; and (b) The trial court has executed and filed a certificate of probable cause for such appeal with the county clerk."

The requirements of this section are inapplicable where the appellant seeks review on appeal "not of the validity of the guilty plea itself, but of proceedings occurring subsequent to the entry of the plea." (In re Harrell (1970) 2 Cal.3d 675, 706, 87 Cal.Rptr. 504, 470 P.2d 640.) It is apparent that every motion to withdraw a guilty plea will occur subsequent to the plea itself, but the time of the motion is not the determinative factor: not every appeal from the denial of such a motion is cognizable without regard to section 1237.5. Section 1018 provides the authority for a motion to withdraw a guilty plea. That section vests in the trial court the discretion to permit withdrawal of a guilty plea "for a good cause shown" anytime before judgment is entered. "Good cause shown" might concern events leading up to the plea itself, such as an allegation that the plea was not knowingly and intelligently entered. In such a case, appeal from the denial of such a motion is tantamount to an attack on the validity of the plea itself. An appellant must therefore comply with the requirements of section 1237.5. (People v. Ribero (1971) 4 Cal.3d 55, 92 Cal.Rptr. 692, 480 P.2d 308.) On the other hand, if the motion to withdraw the plea is based upon activities occurring after the plea, such as an alleged failure to sentence in accordance with a plea bargain, then no probable cause certificate is required for an appeal from denial of the order. (In re Harrell, supra, 2 Cal.3d at 705-706, 87 Cal.Rptr. 504, 470 P.2d 640.) In the latter circumstances, the appellate court is not called upon to pass on the validity of the plea itself.

In the present case, of course, no motion to withdraw the plea was ever filed. If the motion had been filed and denied, it appears from the record that a section 1237.5 certificate would have been required because the plea itself ultimately would be placed in issue. The present appeal, however, attacks the failure of counsel to file the motion in the first instance. The relief requested does not require that we pass upon the validity of the guilty plea. Accordingly, the appeal addresses only the events occurring after the plea and the requirements of section 1237.5 are not applicable. We therefore turn to the merits of the appeal.

Effective Assistance of Counsel

Respondent contends that People v. Mesa (1985) 174 Cal.App.3d 58, 219 Cal.Rptr. 720 should govern our decision in the present case. In Mesa the appellant had entered a guilty plea before the magistrate pursuant to section 859a. When he appeared before the superior court for sentencing he orally requested that the case be remanded to the magistrate for consideration of a motion to withdraw the guilty plea. The superior court declined to do so, and we affirmed. Two aspects of the case are of particular significance for the present appeal: First, Mesa's counsel represented to the trial court that she had reviewed the transcript of the sentencing hearing, and that she found no legal grounds for the motion to withdraw the plea. Second, the trial court ascertained from defendant that his sole basis for wanting to withdraw the plea was that he did not commit the crime; when the court was considering the request for remand, Mesa specifically stated that he had understood the guilty plea when he entered it. In deciding Mesa, we noted that there had been no written motion to withdraw the guilty plea, and held: "Having no grounds to set aside the plea and having...