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People v. Brown

January 26, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DERRICK LAMONT BROWN, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County, Eric C. Taylor, Judge. Dismissed. (Los Angeles County Super. Ct. No. A070612).

The opinion of the court was delivered by: Epstein, P. J.

CERTIFIED FOR PUBLICATION

Derrick Lamont Brown claims he was denied his right to bring a motion to withdraw his plea when his retained counsel announced he was unable to make the motion due to a conflict and the trial court refused to appoint new counsel for purposes of the motion. We dismiss the appeal because appellant failed to obtain a certificate of probable cause, as required by Penal Code section 1237.5.*fn1

FACTUAL AND PROCEDURAL SUMMARY

Appellant was charged with possession of a firearm by a felon (count 1), possession of cocaine base for sale (count 3), possession of a controlled substance for sale (count 4), and possession of marijuana for sale (count 5). As to counts 3 and 4, it was alleged that appellant was armed with a firearm. It also was alleged that he had suffered a prior juvenile adjudication that qualified as a strike, and a drug prior.

Appellant joined a co-defendant's motion to suppress evidence, which was denied. Appellant then pled no contest to one count of possession of cocaine for sale and admitted the gun allegation and strike prior in exchange for an agreed sentence of nine years.

At the start of the sentencing hearing, appellant's retained attorney informed the court that appellant wanted to withdraw his plea, but that counsel could not make the motion on appellant's behalf because of a conflict. Appellant told the court he could not afford to hire a new attorney and asked the court to appoint a lawyer to bring the motion. The court asked counsel to elaborate on the grounds for the motion, but counsel was unable to answer because the answers would require him to reveal some confidences. In answer to further questioning, counsel suggested the grounds for the motion could include some things that were on the record and some things that were not.

The court noted that "[t]he standards for withdrawing the plea are pretty clear. It has to be some irregularity in the plea; otherwise, everyone would say `somebody else told me something' and `I didn't understand' even though on the record it clearly sets out what the circumstances are." The court then stated: "So we are going to move forward and if he wants to appeal, he can. He certainly can file declarations and copies of the plea transcript ordered for him, but that's what he is going to have to go on. That's where we are."

The court proceeded to sentence appellant to the agreed nine years, and appellant filed a timely notice of appeal. He did not obtain a section 1237.5 certificate of probable cause.

DISCUSSION

The Attorney General argues the appeal should be dismissed because appellant failed to obtain a certificate of probable cause, which is required for an appeal which challenges the validity of a plea. Section 1237.5 provides: "No 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."

The purpose of section 1237.5 is "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 within the narrow bounds of cognizability. Section 1237.5 was intended to remedy the unnecessary expenditure of judicial resources by preventing the prosecution of frivolous appeals challenging convictions on a plea of guilty." (People v. Hoffard (1995) 10 Cal.4th 1170, 1179.)

There are two exceptions to the requirement for a certificate of probable cause for an appeal after a plea of guilty or nolo contendere. The first applies where the notice of appeal states that the appeal is based on the denial of a motion to suppress evidence under section 1538.5, subdivision (m). (Cal. Rules of Court, rule 8.304(b)(4).) Appellant's notice of appeal states that he is appealing from "the trial court's ruling on his motion to suppress evidence . . . ." Yet no claims are raised on appeal with respect to the denial of the motion to suppress evidence. And even if he had raised claims based on denial of the suppression motion, where an appeal goes forward without a certificate of probable cause based upon noncertificate grounds, a defendant may not raise additional claims that do require a certificate. (People v. Mendez (1999) 19 Cal.4th 1084, 1104.)

The second exception is where the defendant is not attempting to challenge the validity of his or her plea, "but is asserting only that errors occurred in the subsequent adversary hearings conducted by the trial court for the purpose of determining the degree of the crime and the penalty to be imposed." (People v. Ward (1967) 66 Cal.2d 571, 574; Cal. Rules of Court, rule 8.304(b)(4) [defendant need not comply with section 1237.5 if notice of appeal asserts "[g]rounds that arose after entry of the plea and do not affect the plea's validity"].) Appellant claims he falls within this exception because he is not ...


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