People v. Sturns, A086415.
Citation | 77 Cal.App.4th 1382,92 Cal.Rptr.2d 547 |
Decision Date | 04 February 2000 |
Docket Number | No. A086415.,A086415. |
Parties | The PEOPLE, Plaintiff and Respondent, v. Russell STURNS, Defendant and Appellant. |
Court | California Court of Appeals |
Russell Sturns entered a plea of nolo contendere to possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a). After sentencing, Sturns filed a notice of appeal but did not seek a certificate of probable cause from the trial court. (See Pen.Code, § 1237.51; Cal. Rules of Court, rule 31(d)2.)
More than six months after the time for seeking a certificate of probable cause had expired (see rule 31(d)), Sturns applied to this court for relief from his default so that he could belatedly seek such a certificate. We initially denied Sturns's motion. Sturns moved for reconsideration and we granted his request.
Pursuant to rule 45(e), a "reviewing court for good cause may relieve a party from a default occasioned by any failure to comply with [the California Rules of Court], except the failure to give timely notice of appeal." Sturns urges us to find good cause because he relied on his attorney to perfect the appeal. Under Sturns' notion of good cause, the length of defense counsel's delay in seeking such relief and the reasons for that delay are not relevant.
We reject Sturns' construction of the good cause requirement and conclude that a defendant's expectation that his counsel will file an appeal raising a certificate-dependent issue does not necessarily constitute good cause. Under the facts of this case, the delay between entry of judgment and the request for relief from default and the absence of compelling reasons for that delay prevent us from finding good cause. We deny Sturns' application for relief from default.
On December 20, 1996, the District Attorney for San Mateo County filed an information charging Sturns with possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a). The information also alleged seven prior felony convictions, including a violation of section 451, subdivision (d), arson of property. The section 451 prior was alleged to be a "strike" within the meaning of section 1170.12, subdivision (c)(1). The information further alleged that Sturns served two prior separate prison terms for felony convictions, each warranting a sentence enhancement under section 667.5, subdivision (b).
On December 26, 1996, Sturns entered a plea of not guilty. Sturns also denied all of the special allegations.
On April 11, 1997, Sturns moved to dismiss the section 451 prior conviction allegation, a conviction which had also been based on a nolo contendere plea. Sturns urged that the section 451 prior conviction be dismissed as a strike on the ground that the court taking the plea of nolo contendere to the section 451 offense allegedly misadvised Sturns as to the consequences of entering that plea. On May 2, 1997, the trial court denied Sturns' motion to dismiss the section 451 prior conviction.
In early May 19983, Sturns changed his plea to nolo contendere. Sturns admitted a prior conviction for violating section 451 and that the section 451 conviction constituted a strike within the meaning of section 1170.12, subdivision (c)(1). In exchange for this plea, the People agreed to dismiss all other special allegations.
On February 3, 1999, the trial court sentenced Sturns. Relying on People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628, Sturns requested that the trial court strike the section 451 prior that he had admitted at the time of his change of plea. The court denied Sturns' request and imposed a sentence of 32 months, calculated as 16 months doubled pursuant to section 1170.12, subdivision (c)(1).
On March 1, 1999, Sturns filed a notice of appeal. His notice indicated that he "appeal[ed] from the conviction and judgment" and "appeal[ed] in particular from the imposition of a prior conviction alleged pursuant to Penal Code section 1170.12 enhancing term of imprisonment."
On May 18, 1999, this court appointed counsel for Sturns. The opening brief on appeal was initially due on July 12, 1999. On October 8, 1999, after receiving three extensions of time to file his opening brief, Sturns filed an application for relief from default for failure to comply with rule 31(d). Sturns' application sought leave to obtain a certificate of probable cause on the issue of whether his section 451 prior should have been dismissed due to alleged misadvisement of the consequences of his plea.
Sturns' application was supported by his declaration and a declaration by his trial counsel. The declaration of Sturns' trial counsel stated that counsel intended that the notice of appeal should be interpreted as "challenging the court's denial of our motion in which we had sought to have the `strike' allegation dismissed based on the affirmative misadvisement Mr. Sturns received in 1994 as to the consequences of his plea to the arson charge" and not as "limited to challenging the court's abuse of discretion in denying our Romero motion at sentencing." The declaration further stated:
Sturns' declaration was consistent with that of his trial counsel: Sturns also explained his reliance on his attorney:
The People opposed the application for relief from default in part due to the considerable delay of appellate counsel in making the application. In response to the People's opposition, Sturns' appellate counsel filed a declaration explaining that he was appointed to represent Sturns on May 18, 1999, and that he received the record on or about June 18, 1999. Appellate counsel admitted that "the lack of any certificate of probable cause was apparent to [him] upon [his] review of the record" in June. However, appellate counsel waited to seek relief from default until after he consulted with the First District Appellate Project (FDAP), reviewed an interlocutory writ that Sturns had earlier filed on this same issue, and further consulted with FDAP. Additional delay occurred due to a number of reasons, including the vacation schedule of the FDAP staff attorney who was assisting appellate counsel and appellate counsel's workload, vacation schedule, dental work and jury duty. In sum, appellate counsel accepted full responsibility for the delay.
The Penal Code in conjunction with the California Rules of Court places special limits on the filing of an appeal following a plea of guilty or nolo contendere. Section 1237.5 provides that "[n]o appeal shall be taken by the defendant from a judgment of conviction [in the superior court] upon a plea of guilty or nolo contendere ... except where both of the following are met: [¶] (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, [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the county clerk."
(People v. Mendez (1999) 19 Cal.4th 1084, 1095, 81 Cal.Rptr.2d 301, 969 P.2d 146.)4
"Section 1237.5 has been held to admit" exceptions to the general rule. (People v. Lloyd (1998) 17 Cal.4th 658, 663, 72 Cal. Rptr.2d 224, 951 P.2d 1191.) The second paragraph of rule 31(d) implements these exceptions by providing as follows: "If the appeal from a judgment of conviction entered upon a plea of guilty or nolo contendere [in superior court] is based solely upon...
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