Opinion
B160067.
7-16-2003
THE PEOPLE, Plaintiff and Respondent, v. MYRON ERIC CRUSE, Defendant and Appellant.
Jonathan B. Steiner and Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, William T. Harter, Deputy Attorney General, for Plaintiff and Respondent.
Defendant, Myron Eric Cruse, appeals from his conviction following a guilty plea for possession of marijuana for sale. (Health & Saf. Code, § 11359.) Defendant admitted that he waspreviously convicted of a serious felony. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) Defendant argues the trial court improperly denied his motion to withdraw his guilty plea. Because defendant never secured a probable cause certificate after judgment was finally entered on October 8, 2002, we dismiss the appeal.
All further statutory references are to the Penal Code unless otherwise indicated.
MOSK, J., Dissenting.
I respectfully dissent. I would hold that defendant was not required to obtain another certificate of probable cause after the trial court reinstated the sentence imposed on May 10, 2002, and that defendants appeal should be heard on the merits.
Ordinarily, once a party files a notice of appeal, the trial court does not have jurisdiction to " "do anything in connection with the cause which may affect the judgment." [Citations.] " (Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1834.) Penal Code section 1170, subdivision (d), however, suspends this general rule and allows a trial court, within 120 days after a defendant is committed to state prison, to recall the defendants sentence and resentence the defendant even if a notice of appeal has been filed. (Id. at p. 1836.) The question that arises when the trial court exercises this authority, as it did in this case, is: What is the effect of the recall and resentence on the appeal?
Under rule 33(d) of the California Rules of Court, if the trial court recalls the sentence and amends the judgment, the record on appeal is augmented to include "the amended abstract of judgment or other new dispositional order." This suggests that the appeal from the original judgment survives and includes the amended judgment. It follows that an appeal from an original judgment similarly would survive a recall and resentence when the trial court simply reinstates the original sentence. Because the appeal survives, the defendant is not required to initiate a new appeal by complying with requirements of section 1237.5 and obtaining a new certificate of probable cause.
There is no doubt that defendant complied with section 1237.5 with regard to the sentence imposed on May 10, 2002. Therefore he, in effect, filed a valid and timely notice of appeal from the May 10, 2002 judgment, which appeal includes the sentence recalled and reinstated on October 8, 2002. (See In re Chavez (2003) 30 Cal.4th 643, 657 [a statement of reasonable grounds filed in accordance with section 1237.5 is, in effect, a notice of appeal].) In the alternative, the court could treat defendants section 1237.5 statement of reasonable grounds as a premature notice of appeal from the sentence that was recalled and reinstated on October 8, 2002. (See Cal. Rules of Court, rule 31(a) ["A notice of appeal filed prior to the time prescribed therefore is premature but may, in the discretion of the reviewing court for good cause, be treated as filed immediately after the rendition of the judgment or the making of the order"].) Either approach would be in accordance with " "the well-established policy, based upon the remedial character of the right of appeal, of according that right in doubtful cases when such can be accomplished without doing violence to applicable rules. " " (Rapp v. Golden Eagle Ins. Co. (1994) 24 Cal.App.4th 1167, 1172.) Therefore, I would consider defendants appeal on the merits. Notes:
All further statutory references are to the Penal Code unless otherwise indicated.
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319, 61 L. Ed. 2d 560, 99 S. Ct. 2781; People v. Osband (1996) 13 Cal.4th 622, 690, 919 P.2d 640; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) The preliminary hearing transcript in this case reveals that defendant was arrested for possession of marijuana for sale and sale of marijuana following a traffic stop of the car he was driving on January 1, 2002, by two Los Angeles County Sheriffs deputies. A deputy saw an open tin can on the floorboard of the car which contained 10 plastic baggies of marijuana. The deputies also recovered $ 200 in various denominations, a pager, and a cellular phone from defendants car. Tests for horizontal gaze nystagmus and lack of convergence indicated that defendant was not under the influence of marijuana. Defendant indicated he was unemployed.
Defendant argues the trial court improperly denied his motion to withdraw his guilty plea. At the time of his guilty plea on May 10, 2002, defendant was represented by Deputy Public Defender Lupe Oronoz-Crawford. Defendant was charged with violations of Health and Safety Code sections 11359 and 11360, subdivision (a). The prosecutor also alleged that defendant had previously been convicted of two serious felonies pursuant to sections 667, subdivisions (b) through (d) and 1170.12. These allegations related to defendants 1986 convictions for assault by means of force likely to cause great bodily injury ( § 245, subd. (a)(1)) and oral copulation with a victim unconscious of the nature of the act. ( § 288a, subd. (f).) On May 10, 2002, defendant pled guilty to violating Health and Safety Code section 11359 . The remaining charge of transportation of marijuana for sale (Health & Saf. Code, § 11360) was dismissed and the prior serious felony allegation for the section 288a, subdivision (f), offense was stricken. On the same date, May 10, 2002, defendant was sentenced to the midterm of two years, which was doubled pursuant to sections 667, subdivision (e)(1) and 1170.12, subdivision (c)(1). At the time of his plea, defendant was on probation for his 2001 conviction for willful injury to a child. ( § 273a, subd. (a).) Defendants probation in that case was revoked and he was sentenced to prison for a concurrent term of two years.
Defendant appealed from the May 10, 2002, judgment. His notice of appeal was filed on June 28, 2002. Also on June 28, 2002, in response to defendants application, the trial court issued a probable cause certificate. The sole ground asserted in the June 28, 2002, application for the probable cause certificate was as follows, "Defendant Cruse believes that it was an abuse of discretion and not in the interest of justice for the court to strike only one, and not both, of the prior alleged strikes filed against him in the Information and to sentence him under the strike law, ie. [sic.], mid-term doubled on Count 1."
On August 26, 2002, defendants appointed appellate counsel, Richard Fitzer, sent a letter to the trial court which constituted a request to recall the May 10, 2002, sentence pursuant to section 1170, subdivision (d). Mr. Fitzer noted that the purported prior conviction which was used to double defendants sentence was not a serious felony within the meaning of section 1192.7, subdivision (c). In response to Mr. Fitzers letter, on September 20, 2002, the trial court recalled the sentence pursuant to section 1170, subdivision (d). Hearings were conducted on September 20 and October 8, 2002. On October 8, 2002, the trial court rejected defendants contention that the section 245, subdivision (a) offense was not a serious felony within the meaning of section 1192.7, subdivision (c). On October 8, 2002, the May 10, 2002, judgment was then reimposed. On appeal, defendant contends that the prior crime which has resulted in enhanced sentencing pursuant to sections 667, subdivision (e)(1) and 1170.12, subdivision (c)(1), is in fact not a violent or serious felony.
No notice of appeal was filed from the October 8, 2002, judgment. Further, no probable cause certificate was sought after the entry of the October 8, 2002, judgment. We are required to raise issues concerning our own jurisdiction on our own motion. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126, 876 P.2d 1074; Olson v. Cory (1983) 35 Cal.3d 390, 398, 197 Cal. Rptr. 843, 673 P.2d 720.) We notified the parties of our concerns in this regard and requested briefing concerning our jurisdiction to proceed.
Section 1237.5 states: "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: [P] (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. [P] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court." California Rules of Court, rule 31(d) sets forth the time period for securing the probable cause certificate: "If a judgment of conviction is entered upon a plea of guilty or nolo contendere, the defendant shall, within 60 days after the judgment is rendered, file as an intended notice of appeal the statement required by section 1237.5 of the Penal Code; but the appeal shall not be operative unless the trial court executes and files the certificate of probable cause required by that section. Within 20 days after the defendant files the statement the trial court shall execute and file either a certificate of probable cause or an order denying a certificate and shall forthwith notify the parties of the granting or denial of the certificate."
The California Supreme Court has held: "As we repeatedly have advised, a defendant seeking appellate review following a plea of guilty or no contest must fully and timely comply with both section 1237.5 and rule 31(d). A defendant may not obtain review of certificate issues unless he has complied with section 1237.5 and rule 31(d), first paragraph, fully, and, specifically, in a timely fashion. . . . ([People v. Mendez (1999)] 19 Cal.4th [1084,] 1099 [(Mendez)], citing People v. Breckenridge (1992) 5 Cal.App.4th 1096 [].) When a defendant has failed to comply with the requirements of section 1237.5 and rule 31(d), the Court of Appeal generally may not proceed to the merits of the appeal, but must order dismissal . . . . (Mendez, supra, 19 Cal.4th at pp. 1096, 1099; [People v. Panizzon (1996)] 13 Cal.4th 68, 75.)" (In re Chavez (2003) 30 Cal.4th 643, 651, original italics.) In the present case, defendant never fully and timely secured a probable cause certificate after entry of the October 8, 2002, judgment. Hence, the appeal must be dismissed.
The appeal is dismissed.
I concur: GRIGNON, J.