Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F10943
BLEASE, Acting P. J.
Petitioner seeks a writ of mandate challenging respondent court’s order denying his request for a certificate of probable cause. (Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304(b) .) Petitioner contends that the trial court abused its discretion by denying his application for a certificate of probable cause following a lengthy motion to withdraw his plea on the grounds that it was coerced by the court and counsel, it was made after a last minute amendment to the information, trial counsel was unprepared and failed to properly advise petitioner of the defenses to the charge and consequences of the plea, and trial counsel was ineffective.
Penal Code section 1237.5 provides:
California Rules of Court, rule 8.304(b) provides, in part:
After receiving opposition to the writ petition, we notified the parties that we were considering the issuance of a peremptory writ of mandate in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.) We conclude the trial court did abuse its discretion by denying appellant’s application for a certificate of probable cause. We shall issue the peremptory writ.
Judge Hake “declined” this court’s invitation to change his ruling and grant the application, which would have resulted in the dismissal of this petition as moot.
PROCEDURAL BACKGROUND
Petitioner was originally charged with possessing cocaine base for sale and a prior serious felony conviction. (Health & Saf. Code, § 11351.5; Pen. Code, §§ 1192.7, subd. (c), 667, subds. (b)-(i), and 1170.12.) He was represented by the public defender. On the day set for trial, the People filed an amended information including an additional charge of transporting a controlled substance. (Health & Saf. Code, § 11352.) Petitioner objected to the late filing of the amendment, but the trial court overruled the objection as well as an oral motion to dismiss pursuant to Penal Code section 995. Trial counsel’s request for a one-day continuance also was denied.
We take judicial notice of the companion appellate record in case No. C053369, People v. Carter. Both parties cite to this record in their pleadings.
Trial counsel then asked the court to grant a certificate of probable cause to preserve petitioner’s right to appeal from the denial of a motion to suppress. The court answered, that “I, quite frankly, in 21 years, I’ve never granted one . . .”
Neither counsel nor the court initially appear to have been aware that a certificate of probable cause is not required to appeal the denial of a motion to suppress. (Pen. Code, §§ 1237.5, 1538.5.)
Following discussions with the court, the public defender and the prosecutor, petitioner pleaded no contest to transporting a controlled substance and admitted the prior strike conviction. The original count of possession of cocaine base for sale was dismissed.
Before sentencing, petitioner sought to file a motion to withdraw his plea. The trial court appointed attorney Jem Martin from Conflict Criminal Defenders to represent petitioner.
Attorney Martin informed the court there was at least a prima facie case to withdraw petitioner’s plea.
Attorney Martin also moved to disqualify the trial court under Code of Civil Procedure section 170.1, based, in part, on petitioner’s declaration that the trial court told petitioner off the record that a defense of possession for personal use was rendered moot by the filing of a transportation charge. Attorney Martin argued this was incorrect because transportation for personal use would still permit eligibility for Proposition 36 drug treatment. (Pen. Code, § 1210, subd. (a).) The trial court denied making such a statement. The motion to disqualify the trial court was denied. We agree with real party that a petition for writ of mandate must be filed within 10 days of the denial. None has been filed. Accordingly, any argument about the merits of that motion has been forfeited. (Code of Civ. Procedure, § 170.3, subd. (d).)
Attorney Martin argued that the plea was involuntary because the public defender was unprepared for trial, and failed to adequately advise petitioner of the consequences of the plea. Further, the relationship between the public defender and the petitioner had irretrievably broken down.
Both petitioner and the public defender testified at an evidentiary hearing. The trial court found that defendant had not met his burden of presenting clear and convincing evidence of inadequate representation. The trial court denied the motion to withdraw the plea, but relieved the public defender from further representation of petitioner.
Petitioner filed a pro per request for a certificate of probable cause. Although petitioner’s ability to articulate is poor, the application does refer to the incompetence of trial counsel, coercion, and his motion to withdraw his plea. The certificate of probable cause was denied by the trial court.
It is the duty of trial counsel to assist a defendant in applying for a certificate of probable cause, but that did not occur in this case. (People v. Santos (1976) 60 Cal.App.3d 372, 376.)
DISCUSSION
Review of a trial court’s denial of an application for a certificate of probable cause under Penal Code section 1237.5 is properly made by a petition for writ of mandate in this court. (In re Brown (1973) 9 Cal.3d 679, 683.) In recent cases, our Supreme Court has retreated from the more liberal construction of timeliness in relation to Penal Code section 1237.5 it had employed in earlier cases. (See, In re Brown, supra, and People v. Holland (1978) 23 Cal.3d 77, distinguished in People v. Mendez (1999) 19 Cal.4th 1084, 1097, fn. 7.) Moreover, changes in court rules have superseded earlier definitions of timeliness set forth in In re Ribero (1971) 4 Cal.3d 55 (superseded by new court rules as described in In re Chavez (2003) 30 Cal.4th 643, 656.) Because this case concerns the abuse of discretion in failing to issue a certificate of probable cause upon timely application, we are not concerned about the dicta or holdings in those cases concerning timeliness that are inapplicable.
“The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas. [Citations.] The objective is to promote judicial economy ‘by screening out wholly frivolous guilty [and nolo contendere] plea appeals before time and money is spent preparing the record and the briefs for consideration by the reviewing court.’ [Citations.]” (People v. Panizzon (1996) 13 Cal.4th 68, 75-76.)
Signing such a certificate does not require that the trial court believes the contention is meritorious. Rather, a trial court abuses its discretion if it fails to sign a certificate of probable cause that is not clearly frivolous or vexatious. (People v. Holland, supra, 23 Cal.3d at p. 84.)
To interpret “probable cause” as requiring a probable ground for reversal of the judgment, when such determination is made by the court whose own actions have given rise to the appeal sought, would be a violation of due process. (People v. Ribero, supra, 4 Cal.3d at p. 63, fn. 4.)
“A defendant who challenges the validity of such a plea on the ground that trial counsel rendered ineffective assistance in advice regarding the plea may not circumvent the requirements of section 1237.5 by seeking a writ of habeas corpus. [Citations.]” (In re Chavez, supra, 30 Cal.4th at p. 651.)
We cannot agree that an appeal based upon whether this substantative motion to withdraw a plea was clearly frivolous or vexatious. According to the trial court, this evidentiary hearing lasted six to seven hours. The evidentiary hearing alone takes up more than 140 pages of the reporter’s transcript in the direct appeal.
The fact that the trial court did not find “good cause” to withdraw the plea does not mean that a challenge to its ruling is not cognizable by an appellate court.
Accordingly, without making any finding as to the merit of petitioner’s underlying argument, we do find that denial of the application for a certificate of probable cause was an abuse of discretion.
Real party’s opposition to the petition merely relies on the voluntariness of petitioner’s answers in the plea colloquy as defeating petitioner’s assertion that his motion to withdraw should have been granted. Those questions are properly discussed on direct appeal.
DISPOSITION
Let a peremptory writ of mandate issue directing respondent superior court to vacate its order denying petitioner’s application for certificate of probable cause, and to enter a new and different order granting that application.
We concur: SIMS, J., NICHOLSON, J.
“No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, 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.”
“(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.”