PEOPLE v. PEREZ

Filed 3/7/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

APPEAL from a judgment of the Superior Court of Sacramento County, Allen H. Sumner, Judge. Affirmed.

Patricia L. Watkins, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, J. Robert Jibson and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.

This case demonstrates why it is important for the Judicial Council of California to be careful and to pay attention to detail when it promulgates or amends rules of court. In amending a rule regarding the filing in the trial court of a statement of reasonable grounds for appeal following a plea of guilty or nolo contendere in a criminal case, the Judicial Council deleted the rules express time limit for compliance. Apparently it believed that continuing to include the deadline in the amended rule was unnecessary because other rules, although not directly on point, can be interpreted to compel compliance with the time limit. Unfortunately, the deletion, which itself was unnecessary, created an ambiguity that we now must sort out.

Penal Code section 1237.5, subdivision (a) provides that when a defendant in a criminal proceeding pleads guilty or nolo contendere and then chooses to appeal, the defendant must in some instances file in the superior court a written statement under penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. We will refer to this statement as a statement of reasonable grounds for appeal. (Further section references are to the Penal Code.)

For years, former rule 31(d) of the California Rules of Court required such a defendant to file the written statement of reasonable grounds for appeal within 60 days after the judgment is rendered. As we will explain, by amending this rule to, among other things, delete its express time limit for compliance, the Judicial Council did not intend to abrogate the 60-day deadline, a requirement that remains elsewhere in the rules of court.

Nevertheless, for reasons that follow, we conclude that a Court of Appeal may grant a motion for the constructive filing in the superior court of a late statement of reasonable grounds for appeal, provided the defendant makes a showing of good cause for that relief. In this case, Gabriel Perez (defendant) has filed such a motion. However, because his proposed statement of reasonable grounds for appeal is designed to raise an issue that is clearly frivolous, we will deny the motion (see In re Brown (1973) 9 Cal.3d 679, 683, fn. 5), thereby precluding him from raising the issue on appeal.

We also reject defendants claim that the trial court violated his right to have a jury determine that facts upon which the court relied to impose the upper term for his crime. The contention fails because the court cited defendants many serious prior convictions as a basis, standing alone, for the upper term. The United States Supreme Court has emphasized that this aggravating factor need not be submitted to a jury before a trial court can use it to impose a greater term. Because one valid aggravating factor was sufficient to expose defendant to the upper term, the courts reliance on other factors was harmless. Thus, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with inflicting corporal injury on the mother of his child, resulting in a traumatic condition, and with various enhancements and prior felony conviction allegations.

At trial, after the first day of the jury selection process, defense counsel reported that defendant said he was having visual hallucinations--he was seeing aliens. Defendant explained, Im seeing like they have four eyes. They would have another face on the side of their face like here. The following morning, defense counsel informed the trial court that although she was having no difficulty communicating with defendant, she believed that because he had reported seeing aliens, it was counsels duty to ask the court to declare a doubt regarding defendants mental competence to stand trial on the criminal charges.

The trial court questioned defendant extensively about his ability to understand the nature of the proceedings and to assist defense counsel. Defendant said he was doing okay, explaining he believed the hallucinations he experienced the day before were due to the stress of the proceedings. In response to questioning, he said he knew they had been picking a jury and he had understood the answers given by the prospective jurors. He accurately described the charges against him and said he was able to talk with his attorney, and he accurately described the roles of his counsel, the prosecutor, the jury, and the trial judge.

Stating it had no doubt that defendant was mentally competent to stand trial, the court declined to order a competency hearing. It emphasized that defendant understood the nature and purpose of the proceedings, his status in relation to the proceedings, and the roles of the participants in the trial proceedings, and that he was able to assist his counsel in conducting a defense. It based its decision not only on defendants responses to the courts questions, but also on the courts observations of defendants conversations with his attorney and with escort officers during breaks.

That same day, after the jury was selected but prior to the examination of witnesses, defense counsel and the prosecutor told the court that they had reached a plea agreement as to some of the charges. Defendant then pled no contest to inflicting corporal injury on the mother of his child, resulting in a traumatic condition ( 273.5, subd. (a)), and admitted personally inflicting great bodily injury under circumstances involving domestic violence ( 12022.7, subd. (e)). He also admitted having a prior conviction within the meaning of section 273.5, subdivision (e)(1). During the colloquy regarding the plea, defense counsel stated: I concur that [defendant] is currently competent to enter the plea.

Thereafter, the jury found that defendant was convicted of a serious felony in 1998 within the meaning of the three strikes law and the five-year enhancement statute ( 667, subds. (a)-(i)) and that he had served a prison term for another conviction in 1993, thus exposing him to a one-year enhancement ( 667.5, subd (b)).

He was sentenced to an aggregate term of 20 years in prison (including the upper term of five years for the corporal injury conviction, doubled to 10 years due to his prior serious felony conviction).

At the conclusion of sentencing, the trial court informed defendant that defense counsel could advise him whether he had arguably meritorious grounds for an appeal. Thereafter, defense counsel filed a timely notice of appeal from the judgment, stating defendant appeals from 1. Judicial error in denying Perezs motion for the jury to determine if a prior is a strike. [] 2. The court erred in going forth with the proceedings after defense counsel declared a doubt as to Mr. Perezs mental competency. [] 3. And any other grounds the appellate attorney may find.

Defense counsel did not file a statement of reasonable grounds for appeal. ( 1237.5.)

Defendants appellate attorney filed an opening brief raising one contention, that the trial court violated defendants right to have a jury determine the facts upon which the court relied to impose the upper term in state prison. Counsel also sought leave to file in the superior court an amended notice of appeal including a statement of reasonable grounds for appeal to claim that the trial court erred in denying [defendants] request for a hearing to determine whether he was competent to stand trial.

DISCUSSION

I

In seeking permission for a late filing in the superior court of a statement of reasonable grounds for appeal, defendant argues that amendments to the California Rules of Court appear to have deleted the 60-day time deadline to file such a statement after judgment is rendered. Therefore, he contends, he is not actually in default and technically should not need to request leave of this court to file an amended notice of appeal and request for a certificate in the superior court. Anticipating we might rule otherwise, defendant also argues that because his trial counsel was ineffective for failing to file a statement of reasonable grounds for appeal, we should construe his late statement as being timely.

A

Section 1237.5 prohibits a defendant from taking an appeal from a judgment of conviction upon a plea of guilty or nolo contendere, except in the following situation: (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, and (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.

Despite the broad language of section 1237.5, it is settled that two types of issues may be raised in a guilty or nolo contendere plea appeal without issuance of a certificate [of probable cause by the trial court]: (1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. [Citations.] (People v. Panizzon (1996) 13 Cal.4th 68, 74-75.)

Section 1237.5 does not impose a time limit for such a defendant to file a statement of reasonable grounds for appeal.

However, former rule 31(d) of the California Rules of Court required the statement to be filed within 60 days after the judgment is rendered. (Further rule references are to the California Rules of Court.) Construing former rule 31(d), the Supreme Court explained 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. (People v. Mendez (1999) 19 Cal.4th 1084, 1095.) The Supreme Court concluded that section 1237.5 and former rule 31(d) should be applied in a strict manner. (Id. at p. 1098.)

The Judicial Council later repealed former rule 31(d) and moved its provisions, as amended, to former rule 30(b), effective January 1, 2004. (Advisory Com. com., 23 Pt. 1 Wests Ann. Codes, Rules (2005 ed.) foll. rule 30, pp. 500-501.) Former rule 30(b) has since been renumbered as rule 8.304(b). It states:

(1) Except as provided in (4), to appeal from a superior court judgment after a plea of guilty or nolo contendere or after an admission of probation violation, the defendant must file in that superior court--in addition to the notice of appeal required by (a)--the statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause.

(2) Within 20 days after the defendant files a statement under (1), the superior court must sign and file either a certificate of probable cause or an order denying the certificate.

(3) If the defendant does not file the statement required by (1) or if the superior court denies a certificate of probable cause, the superior court clerk must mark the notice of appeal Inoperative, notify the defendant, and send a copy of the marked notice of appeal to the district appellate project.

(4) The defendant need not comply with (1) if the notice of appeal states that the appeal is based on: [] (A) The denial of a motion to suppress evidence under Penal Code section 1538.5; or [] (B) Grounds that arose after entry of the plea and do not affect the pleas validity.

(5) If the defendants notice of appeal contains a statement under (4), the reviewing court will not consider any issue affecting the validity of the plea unless the defendant also complies with (1).

The rule does not retain former rule 31(d)s express 60-day time limit for filing a statement of reasonable grounds for appeal.

B

Defendant contends that by deleting the 60-day deadline from former rule 31(d) when moving its language to former rule 30(b), the Judicial Council abrogated the time limit for filing a statement of reasonable grounds for appeal. We disagree.

The usual rules of statutory construction are applicable to the interpretation of the California Rules of Court. [Citation.] Our objective is to determine the drafters intent using the words of the rule as our starting point. [Citation.] If the language of the rule is clear and unambiguous, it is unnecessary to probe the rules drafting history in order to ascertain its meaning. [Citation.] . . . We accord a challenged rule a reasonable and commonsense interpretation consistent with its apparent purpose, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity. [Citation.] (Crespin v. Shewry (2004) 125 Cal.App.4th 259, 265.) If possible, we attribute significance to every word, phrase, sentence and part of a rule in pursuit of its underlying purpose, as its various parts must be harmonized by considering them in the context of the rule framework as a whole. (Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1321.)

When the current rule is viewed in the context of related rules, it appears to be ambiguous as to whether there is a time limit for filing a statement of reasonable grounds for appeal. Although rule 8.304(b), formerly rule 30(b), imposes no express time limit, it does require that the statement of reasonable grounds for appeal be filed in addition to the notice of appeal. (Rule 8.304(b)(1).) Under rule 8.308(a), formerly rule 30.1(a), the notice of appeal must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. Rule 8.60(d), formerly rule 45(e), precludes a reviewing court from granting relief from the failure to file a timely notice of appeal or a timely statement of reasonable grounds in support of a certificate of probable cause.

Given the ambiguity between the deadline indicated in rules 8.60(d), 8.304(b)(1), and 8.308(a), and the lack of a deadline in rule 8.304(b), we proceed to discern the intent of the drafters of the rules.

For several reasons, we conclude that although the drafters of former rule 30(b), now rule 8.304(b), did not incorporate into the revised rule the express 60-day deadline of former rule 31(d), they nevertheless intended to preserve the 60-day time limit for filing a statement of reasonable grounds for appeal.

First, construing the California Rules of Court as including a 60-day deadline in which to file a statement of reasonable grounds for appeal best harmonizes the related provisions of the California Rules of Court which address criminal appeals. As we have pointed out, rule 8.308(a), formerly rule 30.1(a), requires a notice of appeal to be filed within 60 days after rendition of the judgment. And Rule 8.304(b), formerly rule 30(b), requires that a statement of reasonable grounds for appeal must be filed in addition to the notice of appeal. Significantly, Rule 8.60(d), formerly rule 45(e), precludes the reviewing court from granting relief from default for the failure to file a timely statement of reasonable grounds in support of a certificate of probable cause.

By requiring the filing of a statement of reasonable grounds for appeal in addition to the notice of appeal, the drafters of the rules signaled their intent to preserve the requirement that the statement of reasonable grounds for appeal, like the notice of appeal, must be filed within 60 days of rendition of the judgment. The drafters made that intent even more evident when they amended former rule 45(e), now rule 8.60(d), to refer to the requirement of a timely statement of reasonable grounds for appeal. To construe the rules as not imposing a time limit for the filing of a statement of reasonable grounds for appeal would negate the word timely in rule 8.60(d).

Second, the drafters have told us of their intent to preserve the 60-day time limit in which to file a statement of reasonable grounds for appeal. Their Advisory Committee Comment to former rule 30.1, as amended on January 1, 2005, now rule 8.308, states: Subdivisions (a), (b), and (c) of revised rule 30.1 are the first two paragraphs of former rule 31(a). Because revised rule 30(b)(1) requires a defendant wanting to appeal from a judgment after a plea of guilty or nolo contendere to file a notice of appeal as in any other criminal case, the special provision of former rule 31(d) prescribing the time to appeal after such a plea is deleted as unnecessary. . . . (Advisory Com. com., op. cit. supra, foll. rule 30.1, p. 537.) Thus, the drafters deleted the 60-day time limit from revised rule 30(b)(1), now rule 8.304(b)(1), not because they intended to abrogate the deadline, but because they thought that continuing to include it in revised rule 30(b)(1) was unnecessary given its inclusion in former rule 30.1(a), now rule 8.308(a).

Third, construing the California Rules of Court as including a 60-day time limit in which to file a statement of reasonable grounds for appeal best fulfills the purpose of section 1237.5, which is to promote judicial economy by screening out wholly frivolous guilty and nolo contendere plea appeals. (People v. Mendez, supra, 19 Cal.4th at p. 1103.) The effectiveness of this screening depends, of course, on whether wholly frivolous appeals, and only wholly frivolous appeals, are in fact barred. That depends, in turn, on whether the screening is done in a timely fashion. Screening is entrusted, at least in the first instance, to the superior court [citations], which is more likely to make a proper determination if it acts near rendition of judgment, and is less likely to do so if it does not. For the passage of time increases the risk of error, with the result that, as recollection fades, it might screen out an appeal that is not wholly frivolous, or fail to screen out one that is. (Ibid.; original italics.)

Defendants assertion that the 2004 revisions to the California Rules of Court abrogated the 60-day time limit in which to file a statement of reasonable grounds for appeal leans heavily on the Advisory Committee Comment that a statement of reasonable grounds for appeal no longer can serve as a substitute for a notice of appeal; now, a defendant must file a notice of appeal in all cases, and may also file a statement of reasonable grounds for appeal when required. (Advisory Com. com., op. cit. supra, foll. rule 30, p. 500.) According to defendant, It follows that the 60-day jurisdictional limit applies to the filing of a notice of appeal, not to a statement of reasonable grounds. However, the Advisory Committee Comment states that only two substantive changes were intended by the amendments to the language of the first paragraph of former rule 31(d)--to extend the rule to appeals after admission of a probation violation; and to require a notice of appeal in all cases. (Ibid.) Notably, the Advisory Committee did not say that the revision to former rule 31(d) was intended to abrogate the 60-day time limit; instead, it said the deadline was deleted as being unnecessary in that rule, given its inclusion elsewhere in the rules of court.

Accordingly, we conclude that a statement of reasonable grounds for appeal, required by section 1237.5, subdivision (a) and by rule 8.304(b), must be filed within 60 days of the rendition of judgment.

TO BE CONTINUED AS PART II..

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line Lawyers.