As to the certificate issues of mental incompetence, the Court of Appeal dismissed Mendez's appeal under its view that a defendant like him must have complied with section 1237.5 and rule 31(d), first paragraph, fully, and, specifically, in a timely fashion, and that he had not done so. In expressing that view, it adhered "[i]n obedience" to our then most recent decisions in the premises ( People v. Panizzon (1996) 13 Cal.4th 68; People v. Hoffard (1995) 10 Cal.4th 1170; People v. Jones (1995) 10 Cal.4th 1102, 1108), and distinguished older ones ( People v. Holland (1978) 23 Cal.3d 77; In re Brown (1973) 9 Cal.3d 679; People v. Herrera (1967) 66 Cal.2d 664); it also declined to follow various decisions of the Courts of Appeal ( People v. Clark (1996) 51 Cal.App.4th 575; People v. Vento (1989) 208 Cal.App.3d 876 ( percuriam)), and distinguished others ( People v. Warburton (1970) 7 Cal.App.3d 815; People v. Coley (1968) 257 Cal.App.2d 787, disapproved on a point not pertinent here, People v. Delles (1968) 69 Cal.2d 906, 910). As to the noncertificate issue of miscalculation of presentence custody credits, the Court of Appeal dismissed Mendez's appeal pursuant to section 1237.1, which prohibits a defendant like him from taking an appeal as to any such question unless he has first presented it to the superior court, as he apparently did not.
Davis, like the instant case, involves the situation where there has been a timely filing of a notice of appeal. It is a legitimate extension of the principle of People v. Herrera (1967) 66 Cal.2d 664 [ 58 Cal.Rptr. 319, 426 P.2d 887], which held that where the notice of appeal and the required statement were filed within the time prescribed by law, and the court approved the transcript on appeal, "the trial judge in effect certified defendant's case for appeal." (66 Cal.2d at p. 665.)
bable cause requirement, now riddled with ill-defined exceptions and exceptions to exceptions. (See, e.g., People v. Panizzon, supra, 13 Cal.4th 68; People v. Hoffard (1995) 10 Cal.4th 1170 [ 43 Cal.Rptr.2d 827, 899 P.2d 896]; People v. Jones, supra, 10 Cal.4th 1102; People v. Sumstine (1984) 36 Cal.3d 909 [ 206 Cal.Rptr. 707, 687 P.2d 904]; In re Joseph B. (1983) 34 Cal.3d 952 [ 196 Cal.Rptr. 348, 671 P.2d 852]; People v. Holland (1978) 23 Cal.3d 77 [ 151 Cal.Rptr. 625, 588 P.2d 765]; People v. Kaanehe (1977) 19 Cal.3d 1 [ 136 Cal.Rptr. 409, 559 P.2d 1028]; People v. DeVaughn (1977) 18 Cal.3d 889 [ 135 Cal.Rptr. 786, 558 P.2d 872]; In re Brown (1973) 9 Cal.3d 679 [ 108 Cal.Rptr. 801, 511 P.2d 1153]; People v. Flores (1971) 6 Cal.3d 305 [ 98 Cal.Rptr. 822, 491 P.2d 406]; People v. Ribero (1971) 4 Cal.3d 55 [ 92 Cal.Rptr. 692, 480 P.2d 308]; People v. West (1970) 3 Cal.3d 595 [ 91 Cal.Rptr. 385, 477 P.2d 409]; People v. Laudermilk (1967) 67 Cal.2d 272 [ 61 Cal.Rptr. 644, 431 P.2d 228]; People v. Herrera (1967) 66 Cal.2d 664 [ 58 Cal.Rptr. 319, 426 P.2d 887]; People v. Ward, supra, 66 Cal.2d 571. ) This is to say nothing of the burden on the Courts of Appeal, which have been set adrift in a sea of confusion. Instead of raising the white flag and surrendering with dignity, the majority doggedly pursues its self-declared war.
See, e.g., In re Brown, supra, 9 Cal.3d at page 683, footnote 6; People v. Flores (1971) 6 Cal.3d 305, 308 [ 98 Cal.Rptr. 822, 491 P.2d 406]; People v. Herrera (1967) 66 Cal.2d 664, 665 [ 58 Cal.Rptr. 319, 426 P.2d 887]; People v. Martinez (1975) 46 Cal.App.3d 736, 743 [ 120 Cal.Rptr. 362, 121 Cal.Rptr. 443]; People v. Fulk (1974) 39 Cal.App.3d 851, 853, footnote 1 [ 114 Cal.Rptr. 567]; People v. Dena (1972) 25 Cal.App.3d 1001, 1005 [ 102 Cal.Rptr. 357]; People v. Warburton, supra, 7 Cal.App.3d at page 820. (7) This case satisfies the requirements identified in Brown.
(1a) A certificate of probable cause is not necessarily a condition precedent to an appeal from a judgment of conviction upon a plea of guilty. ( People v. Herrera (1967) 66 Cal.2d 664, 665 [ 58 Cal.Rptr. 319, 426 P.2d 887]; People v. Chen (1974) 37 Cal.App.3d 1046, 1048 [ 112 Cal.Rptr. 894], disapproved on other grounds in People v. Jimenez (1978) 21 Cal.3d 595, 608 [ 147 Cal.Rptr. 172, 580 P.2d 672]; People v. McMillan (1971) 15 Cal.App.3d 576, 578-579 [ 93 Cal.Rptr. 296]; People v. Davis (1967) 255 Cal.App.2d 907 [ 64 Cal.Rptr. 1].) The crucial question then becomes, even if appellant had obtained a certificate of probable cause, may the issues presented in the instant case be considered?
By ordering the transcripts to be prepared, the trial judge in effect certified the defendant's case for appeal. ( People v. Herrera (1967) 66 Cal.2d 664, 665 [ 58 Cal.Rptr. 319, 426 P.2d 887].) B
The trial court granted appellant's request and thereby in effect certified appellant's case for appeal. ( People v. Herrera, 66 Cal.2d 664, 665 [ 58 Cal.Rptr. 319, 426 P.2d 887].) Under the circumstances, a search of the vehicle for the possible presence of liquor containers was proper.
By doing so the trial court effectively certified defendant's case as a proper one for appeal. Under similar circumstances our Supreme Court in People v. Herrera (1967) 66 Cal.2d 664 [ 58 Cal.Rptr. 319, 426 P.2d 887], upheld defendant's right to press an appeal. In Herrera, the defendant executed a statement pursuant to section 1237.5 of the Penal Code, but the trial judge did not follow the requirements of the section, i.e., he did not file a certificate of probable cause nor did he deny it.
Although, as the Attorney General points out, both the notice of appeal and certificate of probable cause were untimely, we deem it appropriate to entertain the appeal on its merits. ( People v. Herrera (1967) 66 Cal.2d 664 [ 58 Cal.Rptr. 319, 426 P.2d 887].) Initially, an information was filed in number 37312 charging both defendant and his wife, Delores Schad, with possession of heroin for sale (Health Saf. Code, § 11500.5) possession of marijuana (Health Saf. Code, § 11530) and the instant count of possession of seconal.
(1) Examination of the record before us discloses neither the appropriate affidavit nor the requisite certificate of probable cause as required by section 1237.5 of the Penal Code. Preliminarily we note that section 1237.5 of the Penal Code provides mandatory conditions precedent to an appeal from a judgment of conviction upon a plea of guilty. Defendant's appeal does not fall within any of the recognized exceptions to the requirements of section 1237.5. (See People v. Herrera, 66 Cal.2d 664 [ 58 Cal.Rptr. 319, 426 P.2d 887] (no compliance necessary where defendant filed applicable affidavit and court found that trial court's approval of transcript was in effect a certification of the appeal); People v. Ward, 66 Cal.2d 571 [ 58 Cal.Rptr. 313, 426 P.2d 881] (no compliance necessary where defendant does not challenge validity of plea of guilty); People v. Price, 1 Cal.App.3d 982 [ 82 Cal.Rptr. 55] (no compliance necessary where judgment entered prior to September 17, 1965); People v. Coley, 257 Cal.App.2d 787 [ 65 Cal.Rptr. 559] (no compliance necessary where trial court enters nunc pro tune certificate of probable cause for appeal). Section 1237.5 of the Penal Code provides in pertinent part that "No appeal shall be taken by defendant from a judgment of conviction upon a plea of guilty . . . except where: (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or oth