People v. Warburton

• Citation: 7 Cal.App.3d 815,86 Cal.Rptr. 894
• Decision Date: 20 May 1970
• Docket Number: Cr. 16699
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert E. WARBURTON, Defendant and Appellant.

Page 894

86 Cal.Rptr. 894

7 Cal.App.3d 815

The PEOPLE, Plaintiff and Respondent, v. Robert E. WARBURTON, Defendant and Appellant.

Cr. 16699.

Court of Appeal, Second District, Division 4, California.

May 20, 1970.

Hearing Denied July 16, 1970.

Stapleton & Isen, F. G. Stapleton, and Gerald F. Miller, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Philip C. Griffin, Deputy Atty. Gen., for plaintiff and respondent.

FILES, Presiding Justice.

An indictment charged defendant with nine counts of violation of Penal Code section 487, subdivision 1 (grand theft), and eight counts of violation of Corporations Code section 3020 (incomplete or false records). All of the charges arose out of defendant's dealings in municipal bonds, in connection with a corporation named R. E. Warburton Co., Inc.

Following arraignment in the superior court defendant made a motion under Penal Code section 995 to dismiss the indictment, and a motion under Penal Code section 1538.5 to suppress certain evidence upon the ground it had been obtained as a result of an illegal search and seizure. Both motions were denied. Defendant then pleaded nolo contendere to two counts of grand theft. Defendant was sentenced to state prison on those counts, and the other charges were dismissed.

Availability of Appeal

The notice of appeal states that defendant appeals from the judgment 'and in particular, from the denials of his motions in this action made pursuant to Sec. 995 and Sec. 1538.5, Penal Code.'

Penal Code section 1237 specifies what appeals may be taken by a defendant. That section does not authorize a separate appeal from the kinds of orders referred to in defendant's notice. The purported appeals from the orders must therefore be dismissed.

Section 1237 authorizes an appeal 'From a final judgment of conviction except as provided in Section 1237.5.'

Section 1237.5, which was added in 1965, prohibits an appeal from a judgment upon a plea of guilty or nolo contendere except where the defendant has requested and the court has filed a certificate of probable cause. ¹ The purpose of that limitation is to prevent frivolous appeals, having no possible legal basis after the defendant has pleaded guilty or nolo contendere. (People v. Ward (1967) 66 Cal.2d 571, 575, 58 Cal.Rptr. 313, 426 P.2d 881.) It is not the purpose of the statute to shut off an appeal from a judgment, even after a guilty plea, where the defendant is raising a bona fide reviewable issue.

The record on appeal does not contain a certificate of probable cause, as it should if one had been filed. (Cal.Rules of Court, rule 33(a)(1).) Nevertheless the clerk prepared a record and the superior court certified it. Defendant has an issue (as we shall point out below) which is reviewable despite his nolo plea. Had defendant requested a certificate of probable cause, it would have been an abuse of discretion for the superior court to have refused it. Under these circumstances some appellate courts have held that compliance with section 1237.5 is not required. (See Moran v. St. John (1968) 267 Cal.App.2d 474, 73 Cal.Rptr. 190; People v. Rose (1968) 267 Cal.App.2d 648, 73 Cal.Rptr. 349.) Though such a practice is squarely contrary to the statute (see fn. 1), and presents some practical difficulties, ² it is consistent with the rationale of People v. Ward, Supra, 66 Cal.2d 571, 58 Cal.Rptr. 313, 426 P.2d 881. It was doubtless in reliance upon those cases that defendant's counsel refrained from requesting a certificate, and that the clerk of the superior court prepared the record on appeal. We must therefore consider the appeal from the judgment to be properly here.

Scope of Review

The next problem is to determine the scope of the review which is available to defendant after having pleaded nolo contendere. Defendant's brief argues two main points: (1) the trial court should have granted his motion under Penal Code section 1538.5 to suppress certain evidence; and (2) the trial court should have granted his motion under Penal Code section 995 to set aside the indictment upon the ground that the admissible evidence before the grand jury did not show reasonable or probable cause.

Penal Code section 1538.5, enacted in 1967, provides a special pretrial motion 'to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure' upon stated grounds. The section also states the manner in which the trial court's ruling on that motion may be reviewed by an appellate court. Subdivision (m) of section 1538.5 contains this language:

'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.'

Here defendant pleaded nolo contendere. Penal Code section 1016, subdivision 3, provides 'The legal effect of such plea (nolo contendere) shall be the same as that of a plea of guilty, * * *.' We conclude, therefore, that under section 1538.5, subdivision (m), defendant is entitled to a review of the decision of the superior court denying his pretrial motion to suppress.

The legal sufficiency of the evidence before the grand jury is another kind of issue. It is the rule that a plea of guilty is an admission of every element of the offense, so that no other proof is necessary. (See People v. Ward (1967) 66 Cal.2d 571, 574--575, 58 Cal.Rptr. 313, 426 P.2d 881; People v. Jones (1959) 52 Cal.2d 636, 651, 343 P.2d 577.) A judgment entered upon such a plea is not reviewable on the merits. Even though the judgment is appealable, 'irregularities not going to the jurisdiction or legality of the proceedings will not be reviewed.' (People v. Lauder-milk (1967) 67 Cal.2d 272, 281--282, 61 Cal.Rptr. 644, 651, 431 P.2d 228, 235; Stephens v. Toomey (1959) 51 Cal.2d 864, 870, 338 P.2d 182.)

Considering the nature of the plea of nolo contendere, as defined in Penal Code section 1016, Supra, a conviction based on that plea is no more subject to review than one based upon a guilty plea.

The claimed insufficiency of the evidence before the grand jury is not an issue which goes to the jurisdiction or the legality of the trial court proceedings in any fundamental sense. Penal Code section 995 gives the defendant the opportunity to challenge the regularity of the grand jury proceedings or the preliminary examination, as well as the existence of probable cause, by motion prior to entering his plea. Penal Code section 996 provides that if such a motion is not made, 'the defendant is precluded from afterwards taking the objections mentioned' in section 995. Numerous decisions of the courts have consistently held that failure to make a timely motion under section 995 constitutes a waiver of any further review of such issues (see, e.g., People v. Harris (1967) 67 Cal.2d 866, 870, 64 Cal.Rptr. 313, 434 P.2d 609 (lack of counsel at preliminary examination); People v. Dupree (1957) 156 Cal.App.2d 60, 66, 319 P.2d 39 (lack of probable cause to indict)). Insufficiency of the evidence before the grand jury or at the preliminary examination is 'jurisdictional' in the special procedural sense that the ruling of the trial court may be reviewed by writ of prohibition under Penal Code section 999a. (See Guerin v. Superior Court (1969) 269 Cal.App.2d 80, 83, 75 Cal.Rptr. 923.) But the defect is not jurisdictional in the fundamental sense, because, as the cases cited above demonstrate, it is subject to waiver.

In re Wells (1967) 67 Cal.2d 873, 64 Cal.Rptr. 317, 434 P.2d 613 was a collateral attack upon a conviction in which the petitioner claimed he was not apprised of his right to counsel at the preliminary examination. The Supreme Court said (at p. 875, 64 Cal.Rptr. p. 319, 434 P.2d p. 615):

'But assuming that petitioner was not then represented, his petition nevertheless lacks merit because he did not move to set aside the information, although he was represented by counsel in all subsequent proceedings. (Pen.Code, § 995.) As we explain in People v. Harris, 67 Cal.2d 866, 64 Cal.Rptr. 313, p. 315, 434 P.2d 609, p. 611, petitioner thereby waived his statutory right to question the legality of his commitment. (Pen.Code, § 996.) Petitioner's plea of guilty, entered with the advice of counsel, also precludes raising this contention.' (Emphasis added.)

The rationale of the Harris and Wells cases appears equally applicable to the claim of insufficient evidence before the grand jury.

If the lack of probable cause is waived by failure to make a motion under section 995, A fortiori it is waived by a plea of guilty or nolo contendere. If an indictment is dismissed by the trial court for lack of probable cause, the People may file again if additional evidence is available. It is a reasonable assumption that a defendant will not plead guilty or nolo contendere unless he is satisfied that the People do have sufficient evidence at least to hold him for trial. No reason has been suggested why a defendant should be permitted to enter a plea of guilty or nolo contendere, and thereafter seek appellate review of whether the evidence before the grand jury indicated probable cause to hold him to answer.

We conclude that the reviewability of the ruling on the motion to suppress evidence under section 1538.5 is an exception to the long-established rule limiting review of convictions based on guilty pleas. The availability of the review authorized by subdivision (m) of section 1538.5 does not open up other issues which, under settled law, are put to rest by the defendant's plea.

We are aware that in People v. Clark (1969) 2 Cal.App.3d 510, 82 Cal.Rptr. 682, which was an appeal from a judgment based on a guilty plea following a denial of a motion under section 1538.5, the court did review an issue not related to the validity of a search or seizure. The court did not discuss, and apparently did not...