Ct.App. 6 H031095, Santa Clara County Super. Ct. No. CC619063, Judge: Rodney J. Stafford.
The opinion of the court was delivered by: George, C. J.
We granted review to resolve a conflict among appellate court decisions addressing the issue whether a defendant who desires to appeal from a criminal judgment on the ground that counsel rendered ineffective assistance regarding the defendant's request to withdraw a guilty or no contest plea first must obtain a certificate of probable cause. The Court of Appeal below, concluding that a certificate of probable cause was required, dismissed defendant's appeal. We affirm the judgment rendered by that court.
On September 13, 2006, pursuant to a plea agreement, defendant Timothy Johnson, represented by counsel, waived his right to a preliminary hearing and entered a no contest plea to two counts of forcible oral copulation (Pen. Code § 288a, subd. (c)(2))*fn1 and one count of lewd conduct committed upon a child under the age of 14 years (§ 288, subd. (a)). In exchange, the prosecution agreed to a sentence of 19 years and to the dismissal of five additional counts.
Defendant subsequently indicated that he wished to change his plea and, on October 12, 2006, the trial court conducted a hearing pursuant to People v. Smith (1993) 6 Cal.4th 684, 695-696, to determine whether substitute counsel should be appointed to investigate potential grounds for a motion to withdraw defendant's plea, based upon possible ineffective assistance of counsel.*fn2 At the hearing, defendant stated that he was not guilty of the charges but that he had entered into the plea agreement because he was frightened by the prospect of a possible life term. Defendant reported that the first attorney who represented him in these proceedings advised him not to enter into the plea agreement. That attorney was replaced by the public defender, but defendant informed the trial court that he had not had the opportunity to discuss the case with the deputy public defender assigned to him until shortly before the time set for the preliminary hearing, when counsel told him that it was ―maybe‖ in his best interest to accept the plea agreement providing for a sentence of 19 years.
The deputy public defender explained to the trial court the circumstances related to defendant's acceptance of the plea agreement. Counsel stated that prior to the date set for the preliminary hearing, he undertook an assessment of the evidence. When he met with defendant on the date set for the preliminary hearing, it was his opinion that the evidence was quite strong and that defendant's maximum exposure was to a sentence of approximately 45 years in prison. After determining that the 19-year sentence previously offered by the district attorney still was available but would be withdrawn if the preliminary hearing went forward, counsel advised defendant of counsel's belief that it was in defendant's best interest to accept the offer. According to counsel, defendant stated, ―If that's your opinion, then that's what I will do.‖ After hearing the deputy public defender's explanation, the court concluded there was no ―colorable claim‖ of ineffective assistance of counsel that would warrant removal of counsel, and ordered that the public defender remain as attorney of record.
The court then asked defendant why he wished to set aside his plea. Defendant reiterated that he was ―scared into it‖ and stated he was not guilty of the charges. When the trial court inquired of the district attorney concerning evidence supporting the charges, the prosecutor referred to the statements of the two alleged victims and represented that an acquaintance of defendant's could testify to incriminating statements made by defendant regarding one of the alleged victims, his stepdaughter. Defense counsel made no comment during this discussion and answered ―no‖ when the court inquired whether he ―want[ed] to say anything further.‖ The court denied defendant's motion to set aside his plea.
On October 27, 2006, defendant was sentenced to the agreed-upon term of 19 years: the upper term of eight years on the count of committing a lewd act upon a child, the upper term of eight years on one count of forcible oral copulation, and the lower term of three years on the second count of forcible oral copulation, with all terms to be served consecutively.
Defendant filed a notice of appeal and a request for a certificate of probable cause. The notice stated that the appeal challenged the validity of the plea. The request for a certificate of probable cause related that the basis for the appeal was that ―Mr. Johnson's waiver of his fundamental constitutional rights was not made knowingly, intelligently, or voluntarily. Furthermore, the court abused its discretion in denying Mr. Johnson's motion to withdraw his guilty plea.‖ The trial court denied the request for a certificate of probable cause and notified defendant that his notice of appeal was deemed ―not operative.‖ Subsequently, defendant filed an amended notice of appeal, which stated that the ―appeal is based on the sentence and other matters occurring after the plea and does not challenge the validity of the plea.‖
Appellate counsel was appointed and the record was prepared. In the Court of Appeal, defendant claimed he was deprived of his right to the effective assistance of counsel at the October 12, 2006, hearing, because counsel made no attempt to support defendant's motion to withdraw his plea. Defendant contended on appeal that the matter should be remanded for the purpose of affording his attorney an opportunity to investigate, prepare, and present a motion for withdrawal of the plea, relying upon People v. Brown (1986) 179 Cal.App. 3d 207, 215-217 (Brown). In Brown, defense counsel refused to present a motion to withdraw the defendant's guilty plea, and the appellate court reversed the judgment and remanded to permit the defendant, with the assistance of counsel, to make a motion to withdraw. In that case, however, the appellate court required a certificate of probable cause, and one was issued. (Id. at p. 210, fn. 1.)
In the present matter, the appellate court dismissed defendant's appeal, concluding that a certificate of probable cause was required under section 1237.5. In doing so, it followed the decision in People v. Emery (2006) 140 Cal.App.4th 560, 565 (Emery), in which the Court of Appeal held that a certificate of probable cause is a prerequisite to an appeal challenging the trial court's denial of a continuance sought by defense counsel to investigate potential grounds for withdrawal of the defendant's guilty plea. The appellate court in the present matter attempted to distinguish the decision rendered by another Court of Appeal in People v. Osorio (1987) 194 Cal.App.3d 183, 188-189 (Osorio), an opinion with which Emery explicitly disagreed. (Emery, supra, 140 Cal.App.4th at p. 565.) Osorio held that a certificate of probable cause was not a prerequisite to an appeal based upon a claim that defense counsel had rendered ineffective assistance in refusing to file a motion to withdraw the defendant's guilty plea.
We granted review in the present case to resolve the conflict between the decisions in Osorio and Emery.
Section 1237.5 states broadly that ―[n]o appeal shall be taken by the defendant from a judgment of conviction 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 clerk of the court.‖ (§ 1237.5, italics added.) ―The purpose and effect of section 1237.5 . . . are . . . to create a mechanism for trial court determination of whether an appeal raises any non-frivolous cognizable issue, i.e., any non-frivolous issue going to the legality of the proceedings. Before the enactment of section 1237.5, the mere filing of a notice of appeal required preparation of a record and, in many cases, appointment of counsel; only after expenditure of those resources would an appellate court determine whether the appeal raised non-frivolous issues that fell ...