People v. Sturns, A086415.

CourtCalifornia Court of Appeals
Writing for the CourtJones
Citation77 Cal.App.4th 1382,92 Cal.Rptr.2d 547
PartiesThe PEOPLE, Plaintiff and Respondent, v. Russell STURNS, Defendant and Appellant.
Docket NumberNo. A086415.,A086415.
Decision Date04 February 2000
92 Cal.Rptr.2d 547
77 Cal.App.4th 1382
The PEOPLE, Plaintiff and Respondent,
Russell STURNS, Defendant and Appellant.
No. A086415.
Court of Appeal, First District, Division 5.
February 4, 2000.
Review Denied April 19, 2000.

[92 Cal.Rptr.2d 548]

[77 Cal.App.4th 1385]

Stephen Chapman Matchett, under appointment by the Court of Appeal, San Francisco, for defendant and appellant.

Raymond Cardozo, Deputy Attorney General, for plaintiff and respondent.

[77 Cal.App.4th 1386]


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.

92 Cal.Rptr.2d 549

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).

77 Cal.App.4th 1387

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

92 Cal.Rptr.2d 550

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'

77 Cal.App.4th 1388

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: "I did not seek a certificate of probable cause in connection with Mr. Sturns' appeal, under Penal Code section 1237.5 (see also Cal. Rules of Ct., rule 31, subd. (d)), because I believed, and continue to believe, that since the intended claims were matters pertaining to his sentence, the requirement set forth in that section did not apply. It was not my intent that by failing to obtain a certificate of probable cause Mr. Sturns should be foreclosed from appealing the denial of his motion to dismiss the `strike' allegation based on his misadvisement about the consequences of his prior plea."

Sturns' declaration was consistent with that of his trial counsel: "I relied on my lawyer at the time ... to get my appeal started, which he apparently did by filing a notice of appeal on March 1, 1999. I understood, and intended, that on my appeal I would be able to challenge not only the denial of my Romero motion, but also the denial of my original motion to dismiss the `strike' allegation ... based on the incorrect advisement of consequences that I received when I entered my plea in 1994." Sturns also explained his reliance on his attorney: "I am unschooled in the law, and I did not know that my appeal of the denial of the motion described in paragraph 2 could possibly be barred if I failed to obtain a `certificate of probable cause.' If any such action was required on my part, I relied completely on [my trial counsel] to let me know, or to take care of it as my lawyer. By failing to obtain such a certificate, I did not intend to waive my right to appeal the denial of my motion to dismiss the `strike' allegation based on my misadvisement as to the consequences of my 1994 no-contest plea."

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.

77 Cal.App.4th 1389


A. The section 1237.5 certification requirement applies to the issue that Sturns seeks to raise.

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

92 Cal.Rptr.2d 551

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."

"Rule 31(d), first paragraph, implements section 1237.5 by providing, in pertinent part, that the defendant may not take or prosecute an appeal unless he has filed the statement of certificate grounds as an intended notice of appeal within 60 days after rendition of judgment, and has obtained a certificate of probable cause for the appeal within 20 days after filing of the statement and, hence, within a maximum of 80 days after rendition of judgment. [Citations.]" (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)...

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  • The People v. Sturns
    • United States
    • California Court of Appeals
    • 4 Febrero 2000
    ... 92 Cal.Rptr.2d 547 (Cal.App. 1 Dist. THE PEOPLE, Plaintiff and Respondent, v. RUSSELL STURNS, Defendant and Appellant. A086415 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FIVE Filed 2/4/00 (San Mateo County Super. Ct. No. SC39786) Trial judge: Hon.......

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