People v. Perez

• Decision Date: 07 March 2007
• Docket Number: No. C051800.,C051800.
• Citation: 148 Cal.App.4th 353,55 Cal.Rptr.3d 683
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gabriel PEREZ, Defendant and Appellant.

55 Cal.Rptr.3d 683

148 Cal.App.4th 353

The PEOPLE, Plaintiff and Respondent, v. Gabriel PEREZ, Defendant and Appellant.

No. C051800.

Court of Appeal, Third District.

March 7, 2007.

As Modified March 8, 2007.

Patricia L. Watkins, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, J. Robert Jibson and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.

SCOTLAND, P.J.

This case demonstrates why it is important for the Judicial Council of California to be careful and to pay attention to detail when it promulgates or amends rules of court. In amending a rule regarding the filing in the trial court of a statement of reasonable grounds for appeal following a plea of guilty or nolo contendere in a criminal case, the Judicial Council deleted the rule's express time limit for compliance. Apparently it believed that continuing to include the deadline in the amended rule was unnecessary because other rules, although not directly on point, can be interpreted to compel compliance with the time limit. Unfortunately, the deletion, which itself was unnecessary, created an ambiguity that we now must sort out.

Penal Code section 1237.5, subdivision (a) provides that when a defendant in a criminal proceeding pleads guilty or nolo contendere and then chooses to appeal, the defendant must in some instances file in the superior court a written statement under penalty of perjury "showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings." We will refer to this statement as a statement of reasonable grounds for appeal. (Further section references are to the Penal Code.)

For years, former rule 31(d) of the California Rules of Court required such a defendant to file the written statement of reasonable grounds for appeal `'within 60 days after the judgment is rendered." As we will explain, by amending this rule to, among other things, delete its express time limit for compliance, the Judicial Council did not intend to abrogate the 60-day deadline, a requirement that remains elsewhere in the rules of court.

Nevertheless, for reasons that follow, we conclude that a Court of Appeal may grant a motion for the "constructive filing'' in the superior court of a late statement of reasonable grounds for appeal, provided the defendant makes a sufficient showing for that relief under In re Benoit (1973) 10 Cal.3d 72, 109 Cal.Rptr. 785, 514 P.2d 97. In this case, Gabriel Perez (defendant) has filed such a motion. However, because his proposed statement of reasonable grounds for appeal is designed to raise an issue that is "`clearly frivolous,'" we will deny the motion (see In re Brown (1973) 9 Cal.3d 679, 683, fn. 5, 108 Cal.Rptr. 801, 511 P.2d 1153), thereby precluding him from raising the issue on appeal.

We also reject defendant's claim that the trial court violated his right to have a jury determine that facts upon which the court relied to impose the upper term for his crime. The contention fails because the court cited defendant's many serious prior convictions as a basis, standing alone, for the upper term. The United States Supreme Court has emphasized that this aggravating factor need not be submitted to a jury before a trial court can use it to impose a greater term. Because one valid aggravating factor was sufficient to expose defendant to the upper term, the court's reliance on other factors was harmless. Thus, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with inflicting corporal injury on the mother of his child, resulting in a traumatic condition, and with various enhancements and prior felony conviction allegations.

At trial, after the first day of the jury selection process, defense counsel reported that defendant said he was having visual hallucinations — he was "seeing aliens." Defendant explained, "I'm seeing like they have four eyes. They would have another face on the side of their face like here." The following morning, defense counsel informed the trial court that although she was having no difficulty communicating with defendant, she believed that because he had reported seeing aliens, it was counsel's duty to ask the court to declare a doubt regarding defendant's mental competence to stand trial on the criminal charges.

The trial court questioned defendant extensively about his ability to understand the nature of the proceedings and to assist defense counsel. Defendant said he was "doing okay," explaining he believed the hallucinations he experienced the day before were due to the stress of the proceedings. In response to questioning, he said he knew they had been picking a jury and he had understood the answers given by the prospective jurors. He accurately described the charges against him and said he was able to talk with his attorney, and he accurately described the roles of his counsel, the prosecutor, the jury, and the trial judge.

Stating it had no doubt that defendant was mentally competent to stand trial, the court declined to order a competency hearing. It emphasized that defendant understood the nature and purpose of the proceedings, his status in relation to the proceedings, and the roles of the participants in the trial proceedings, and that he was able to assist his counsel in conducting a defense. It based its decision not only on defendant's responses to the court's questions, but also on the court's observations of defendant's conversations with his attorney and with escort officers during breaks.

That same day, after the jury was selected but prior to the examination of witnesses, defense counsel and the prosecutor told the court that they had reached a plea agreement as to some of the charges. Defendant then pled no contest to inflicting corporal injury on the mother of his child, resulting in a traumatic condition (§ 273.5, subd. (a)), and admitted personally inflicting great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). He also admitted having a prior conviction within the meaning of section 273.5, subdivision (e)(1). During the colloquy regarding the plea, defense counsel stated: "I concur that [defendant] is currently competent to enter the plea."

Thereafter, the jury found that defendant was convicted of a serious felony in 1998 within the meaning of the "three strikes law" and the five-year enhancement statute (§ 667, subds.(a)-(i)) and that he had served a prison term for another conviction in 1993, thus exposing him to a one-year enhancement (§ 667.5, subd (b)).

He was sentenced to an aggregate term of 20 years in prison (including the upper term of five years for the corporal injury conviction, doubled to 10 years due to his prior serious felony conviction).

At the conclusion of sentencing, the trial court informed defendant that defense counsel could advise him whether he had arguably meritorious grounds for an appeal. Thereafter, defense counsel filed a timely notice of appeal from the judgment, stating defendant appeals from "1. Judicial error in denying Perez's motion for the jury to determine if a prior is a strike. [¶] 2. The court erred in going forth with the proceedings after defense counsel declared a doubt as to Mr. Perez's mental competency. [¶] 3. And any other grounds the appellate attorney may find."

Defense counsel did not file a statement of reasonable grounds for appeal. (§ 1237.5.)

Defendant's appellate attorney filed an opening brief raising one contention, that the trial court violated defendant's right to have a jury determine the facts upon which the court relied to impose the upper term in state prison. Counsel also sought leave to file in the superior court an amended notice of appeal including a statement of reasonable grounds for appeal to claim that the trial court erred in "denying [defendant's] request for a hearing to determine whether he was competent to stand trial."

DISCUSSION

I

In seeking permission for a late filing in the superior court of a statement of reasonable grounds for appeal, defendant argues that amendments to the California Rules of Court appear to have deleted the 60-day time deadline to file such a statement after judgment is rendered. Therefore, he contends, he is not actually in default "and technically should not need to request leave of this court to file an amended notice of appeal and request for a certificate in the superior court." Anticipating we might rule otherwise, defendant also argues that because his trial counsel was ineffective for failing to file a statement of reasonable grounds for appeal, we should construe his late statement as being timely.

A

Section 1237.5 prohibits a defendant from taking an appeal from a judgment of conviction upon a plea of guilty or nolo contendere, except in the following situation: "(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 clerk of the court."

Despite "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 [of probable cause by the trial court]: (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.)

Section 1237.5 does not impose a time limit for such a defendant to file a statement of...