People v. Ribero, Cr. 13746

• Citation: 4 Cal.3d 55,480 P.2d 308,92 Cal.Rptr. 692
• Decision Date: 11 February 1971
• Docket Number: Cr. 13746
• Court: United States State Supreme Court (California)
• Parties: , 480 P.2d 308 The PEOPLE, Plaintiff and Respondent, v. James E. RIBERO, Defendant and Appellant.

Page 692

92 Cal.Rptr. 692

4 Cal.3d 55, 480 P.2d 308

The PEOPLE, Plaintiff and Respondent, v. James E. RIBERO, Defendant and Appellant.

Cr. 13746.

Supreme Court of California,

In Bank.

Feb. 11, 1971.

James E. Ribero, in pro. per., and John L. Giordano, Sacramento, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., and George R. Nock, Deputy Atty. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

Petitioner, James E. Ribero, seeks an order permitting him to file a late notice of appeal pursuant to rule 31(a) of the California Rules of Court.

Facts

Petitioner originally pleaded not guilty to a charge of possession of a check or money order with intent to defraud in violation of section 475a of the Penal Code. He alleges that he thereafter changed his plea to guilty in reliance on a statement by his attorney that upon so doing he would be committed to the state rehabilitation center as a narcotic addict. Petitioner does not allege that there was a bargain with the prosecution or the court, that his attorney's representation was in any way substantiated by the prosecution, or that his attorney purported to speak for any responsible public official.

Petitioner appeared for sentence on March 27, 1969, and was informed by the trial court that he would be committed to the Department of Corrections. Petitioner then attempted to withdraw his guilty plea. He told the court that at the time he entered his guilty plea he was a narcotic addict and was under the influence of drugs. He further stated that the reason he had changed his plea to guilty was the assurance of his attorney that he would be sent to a narcotic hospital for treatment. Petitioner alleges that the court then stated, 'What you are trying to say is that you weren't fully aware,' and that he had agreed with the court's statement. The court, however, refused to permit petitioner to withdraw his guilty plea and sentenced him to state prison.

Immediately after sentence was imposed, petitioner requested his attorney to appeal. He alleges that his attorney said he would 'take care of the matter,' but that in fact the attorney made no attempt to perfect an appeal. On April 11, 1969, petitioner sought to procure a copy of the superior court record and reporter's transcript, but his request was denied. Letters to his attorney were unavailing, and in May 1969 petitioner attempted to file his own notice of appeal. The notice was not filed, however, because of expiration of the period of time prescribed for such filing. Petitioner then sought an order from the Court of Appeal permitting him to file a late notice of appeal, but this application was denied on June 3, 1969. Thereafter this court granted a petition for hearing.

Applicability of Section 1237.5 of the Penal Code

The Attorney General properly concedes that had petitioner pleaded not guilty and thereafter had been convicted he would be entitled to relief pursuant to rule 31(a) of the California Rules of Court. The Attorney General contends, however, that in view of the guilty plea, it would be fruitless to grant such relief because the ensuing appeal would not be operative on the ground that petitioner has not complied with the requirements of section 1237.5 of the Penal Code. ¹

Section 1237.5 provides: 'No 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 provisions of this section are implemented by rule 31(d) of the California Rules of court. ²

Petitioner concedes that he has not complied with section 1237.5, but he contends that the requirements of that section are not applicable to the facts of this case. He relies on People v. Ward (1967) 66 Cal.2d 571, 58 Cal.Rptr. 313, 426 P.2d 881, and People v. Delles (1968) 69 Cal.2d 906, 73 Cal.Rptr. 389, 447 P.2d 629. In Ward we held that a defendant was not required to comply with the provisions of section 1237.5 if he was not challenging the validity of his plea of guilty but was asserting only that errors occurred in the proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. Although section 1237.5 refers generally to an appeal 'from a judgment of conviction upon a plea of guilty,' we stated that the section was only intended to apply to a situation in which a defendant claimed that his plea of guilty was invalid. (People v. Ward, supra, 66 Cal.2d at 574, 58 Cal.Rptr. 313, 426 P.2d 881.) Delles, following the reasoning of Ward, held that section 1237.5 did not apply where the defendant's only claim was that the trial court erred in imposing a prison sentence contrary to the terms of the bargain by which his guilty plea was obtained. (People v. Delles, supra, 69 Cal.2d at p. 909, 73 Cal.Rptr. 389, 447 P.2d 629.) ³

Petitioner contends that Ward and Delles govern this case because he is asserting not only that his guilty plea was invalid, but also that the trial court erred in the penalty proceeding subsequent to the plea by imposing a prison sentence contrary to a plea bargain. The only basis alleged in support of a 'plea bargain' is petitioner's statement that he was told by his trial counsel that upon a plea of guilty he would be committed to the state rehabilitation center as a narcotic addict. The Attorney General has denied that trial counsel made any such promise. Even if petitioner's allegations are true, however, they are not sufficient to warrant relief on the theory that the trial court imposed sentence in violation of a valid plea bargain. '(P) urported misrepresentations by defense counsel that a specific sentence will be imposed are insufficient to vitiate a plea entered in reliance thereon' (People v. Reeves (1966) 64 Cal.2d 766, 776, 51 Cal.Rptr. 691, 697, 415 P.2d 35, 41), and they are certainly insufficient to have any binding effect on the trial court as to the sentence to be imposed. Such alleged misrepresentations cannot rise to the level of a valid plea bargain in the absence of at least apparent substantial corroboration by a responsible public official. (Cf., People v. Gilbert (1944) 25 Cal.2d 422, 443, 154 P.2d 657.) Petitioner has not alleged that his attorney's representations were in any way substantiated by the prosecution or the court, nor has he alleged that his attorney purported to speak for a responsible public official. Thus there is no merit in petitioner's claim that the trial court erred in the subsequent proceedings by imposing a prison sentence in violation of a bargain by which his plea was obtained.

Even in the absence of a valid plea bargain, alleged misrepresentations by defense counsel could, of course, be considered by the trial court in ruling on a motion before judgment to withdraw a guilty plea pursuant to Penal Code section 1018. Nothing we have said above with respect to plea bargains is intended in any way to restrict the power of the trial court in the exercise of its discretion in granting or denying motions to withdraw guilty pleas pursuant to that section. In this respect, however, petitioner's allegations of misrepresentations by defense counsel, like his remaining allegations, that at the time he entered his guilty plea he was addicted to and under the influence of drugs and was not 'fully aware,' go only to the validity of his plea. What he is actually contending, therefore, is that the trial court erred in not permitting him to withdraw an allegedly invalid plea of guilty.

The merits of this contention are not before us at this time, for we are now concerned only with the issue of whether section 1237.5 is applicable when a defendant seeks review of an order denying a motion to withdraw a guilty plea even though the motion relates to the validity of the plea. It is contended that to require compliance with section 1237.5 would seriously restrict inquiry into error in the denial of the motion. There is no merit in this contention. Section 1237.5 does not limit the scope of review of the denial of a motion to withdraw a plea of guilty when that error is properly before the court on appeal. It merely sets forth a procedure for precluding frivolous appeals by requiring the defendant to set forth grounds for appeal and, if he does so, by requiring the trial court to rule on the issue of probable cause.

An order before judgment denying a motion to withdraw a guilty plea is not appealable, but can be reviewed on an appeal from the judgment. (People v. Francis (1954) 42 Cal.2d 335, 336, 267 P.2d 8; People v. Caruso (1959) 174 Cal.App.2d 624, 630, 345 P.2d 282, Pen.Code, § 1237.) Although on such an appeal the merits of the issue of guilt or innocence are not reviewable (Stephens v. Toomey (1959) 51 Cal.2d 864, 870, 338 P.2d 182), both before and after the enactment of section 1237.5, the constitutional, jurisdictional and other errors referred to in that section have been reviewed. Particular claims of error that have been considered and that may still be considered include insanity at the time of the plea (People v. Laudermilk (1967) 67 Cal.2d 272, 282, 61 Cal.Rptr. 644, 431 P.2d 228), ineffective waiver of constitutional rights (People v. Navarro (1966) 243 Cal.App.2d 755, 758, 52 Cal.Rptr. 686), ineffective assistance of counsel (People v. Natividad (1963) 222 Cal.App.2d 438, 441, 35 Cal.Rptr. 237), a plea obtained by misrepresentation (People v. Rose (1959) 171 Cal.App.2d 171, 172, 339 P.2d 954), or other abuse of discretion in denying a motion to withdraw a guilty plea. (People v. Francis (1954) 42...