People v. Rose, Cr. 3265
| Court | California Court of Appeals |
| Writing for the Court | WHELAN; GERALD BROWN, P.J., and COUGHLIN |
| Citation | 267 Cal.App.2d 648,73 Cal.Rptr. 349 |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Milton Paul ROSE, Defendant and Appellant. |
| Decision Date | 25 November 1968 |
| Docket Number | Cr. 3265 |
Page 349
v.
Milton Paul ROSE, Defendant and Appellant.
Page 350
Fabbroni, Odorico, Moran & Dimeff and John T. Moran, San Diego, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Rose-Marie Gruenwald, Deputy Atty. Gen., for plaintiff and respondent.
WHELAN, Associate Justice.
Defendant appeals from an order granting probation following his plea of guilty to the charge of maintaining a place where narcotics are sold (Health & Saf. Code § 11557).
Defendant did not comply with the requirements of Penal Code, section 1237.5, compliance with which is now generally [267 Cal.App.2d 649] a prerequisite to an appeal from a judgment based upon a plea of guilty. 1
His appeal, however, has purportedly been taken under the provisions of section 1538.5(m), Penal Code, which is as follows:
'The proceedings provided for in this section, Section 995, Section 1238, and Section 1466 shall constitute the sole and exclusive remedies prior to conviction to test the unreasonableness of a search or seizure where the person making the motion for the return of property or the suppression of evidence is a defendant in a criminal case and the property or thing has been offered or will be offered as evidence against him. A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that such judgment of conviction is predicated upon a plea of guilty. Such review on appeal may be obtained by the defendant providing that at some stage of the proceedings prior to conviction he has moved for the return of property or the suppression of the evidence.'
Section 1237.5, Penal Code, was enacted in 1965; section 1538.5, in 1967. Under the procedure prescribed in section 1237.5, an appeal from a judgment based upon a plea of guilty, following a denial of a motion under section 1538.5, could have been taken without the express provision to that effect in the latter section. Since, in section 1538.5, the Legislature provided specifically for such a right of appeal, it follows that an appeal from a judgment based upon a plea of guilty following the denial of a motion under that
Page 351
section, for the sole purpose of testing the correctness of such denial, may be taken without regard to the provisions of section 1237.5.We are of opinion that defendant's appeal is fruitless for reasons we now discuss.
Defendant was charged originally in an information filed November 22, 1967 with having planted and cultivated marijuana, a violation of section 11530, Health and Safety Code, to which he pleaded not guilty. On December 27, 1967, he filed a written notice of motion for an order suppressing physical evidence which motion was heard and denied on January 5, 1968.
[267 Cal.App.2d 650] On April 2, 1968, to which date trial had been continued from January 18 at defendant's request, the district attorney, without objection from defendant, was given...
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People v. Sanchez, Cr. 4735
...guilty to preserve the right to appellate review of this issue was, of course, erroneous. (See Pen.Code, § 1538.5(m); People v. Rose, 267 Cal.App.2d 648, 649, 73 Cal.Rptr. 349; Moran v. St. John, 267 Cal.App.2d 474, 475--478, 73 Cal.Rptr. 190.) 4 A waiver of a privilege against self-incrimi......
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People v. West, Cr. 14453
...trial court has executed and filed a certificate of probable cause for such appeal with the county clerk.' 2 See People v. Rose (1968) 267 Cal.App.2d 648, 649, 73 Cal.Rptr. 349; Moran v. St. John (1968) 267 Cal.App.2d 474, 477--478, 73 Cal.Rptr. 3 See generally Brady v. United States (1969)......
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People v. Fry, Cr. 3249
...the judgment will be reversed with instructions to set aside the plea upon which it was entered. (Cf. People v. Rose, 267 A.C.A. 706, 73 Cal.Rptr. 349.) The posture of the case under such circumstances eliminates the requirement a defendant on appeal must establish the error of which he com......
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People v. Kaanehe, Cr. 19644
...may be raised on appeal after a plea of guilty, constitutes an exception to section 1237.5. (People v. Rose (1968)267 Cal.App.2d 648, 73 Cal.Rptr. 349.) Rule 31(d) of the California Rules of Court now expressly recognizes this exception. 4 Page 414 [559 P.2d 1033] We have also held that sec......
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People v. Sanchez, Cr. 4735
...guilty to preserve the right to appellate review of this issue was, of course, erroneous. (See Pen.Code, § 1538.5(m); People v. Rose, 267 Cal.App.2d 648, 649, 73 Cal.Rptr. 349; Moran v. St. John, 267 Cal.App.2d 474, 475--478, 73 Cal.Rptr. 190.) 4 A waiver of a privilege against self-incrimi......
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People v. West, Cr. 14453
...trial court has executed and filed a certificate of probable cause for such appeal with the county clerk.' 2 See People v. Rose (1968) 267 Cal.App.2d 648, 649, 73 Cal.Rptr. 349; Moran v. St. John (1968) 267 Cal.App.2d 474, 477--478, 73 Cal.Rptr. 3 See generally Brady v. United States (1969)......
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People v. Fry, Cr. 3249
...the judgment will be reversed with instructions to set aside the plea upon which it was entered. (Cf. People v. Rose, 267 A.C.A. 706, 73 Cal.Rptr. 349.) The posture of the case under such circumstances eliminates the requirement a defendant on appeal must establish the error of which he com......
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People v. Kaanehe, Cr. 19644
...may be raised on appeal after a plea of guilty, constitutes an exception to section 1237.5. (People v. Rose (1968)267 Cal.App.2d 648, 73 Cal.Rptr. 349.) Rule 31(d) of the California Rules of Court now expressly recognizes this exception. 4 Page 414 [559 P.2d 1033] We have also held that sec......