Opinion
WRIGHT, C. J. Petitioner, James E. Ribero, seeks an order permitting him to file a late notice of appeal pursuant to rule 31 (a) of the California Rules of Court.
Facts
Petitioner originally pleaded not guilty to a charge of possession of a check or money order with intent to defraud in violation of section 475a of the Penal Code. He alleges that he thereafter changed his plea to guilty in reliance on a statement by his attorney that upon so doing he would be committed to the state rehabilitation center as a narcotic addict. Petitioner does not allege that there was a bargain with the prosecution or the court, that his attorney’s representation was in any way substantiated by the prosecution, or that his attorney purported to speak for any responsible public official.
Petitioner appeared for sentence on March 27, 1969, and was informed by the trial court that he would be committed to the Department of Corrections. Petitioner then attempted to withdraw his guilty plea. He told the court that at the time he entered his guilty plea he was a narcotic addict and was under the influence of drugs. He further stated that the reason he had changed his plea to guilty was the assurance of his attorney that he would be sent to a narcotic hospital for treatment. Petitioner alleges that the court then stated, “What you are trying to say is that you weren’t fully aware,” and that he had agreed with the court’s statement. The court, however, refused to permit petitioner to withdraw his guilty plea and sentenced him to state prison.
Immediately after sentence was imposed, petitioner requested his attorney to appeal. He alleges that his attorney said he would “take care of the matter,” but that in fact the attorney made no attempt to perfect an appeal. On April 11, 1969, petitioner sought to procure a copy of the [60]superior court record and reporter’s transcript, but his request was denied. Letters to his attorney were unavailing, and in May 1969 petitioner attempted to file his own notice of appeal. The notice was not filed, however, because of expiration of the period of time prescribed for such filing. Petitioner then sought an order from the Court of Appeal permitting him to file a late notice of appeal, but this application was denied on June 3, 1969. Thereafter this court granted a petition for hearing.
Applicability of Section 1237.5 of the Penal Code
The Attorney General properly concedes that had petitioner pleaded not guilty and thereafter had been convicted he would be entitled to relief pursuant to rule 31(a) of the California Rules of Court. The Attorney General contends, however, that in view of the guilty plea, it would be fruitless to grant such relief because the ensuing appeal would not be operative on the ground that petitioner has not complied with the requirements of section 1237.5 of the Penal Code.1
Section 1237.5 provides: “No appeal shall be taken by defendant from a judgment of conviction upon a plea of guilty or nolo contendere, 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 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 county clerk.” The provisions of this section are implemented by rule 31(d) of the California Rules of Court.2
[61]Petitioner concedes that he has not complied with section 1237.5, but he contends that the requirements of that section are not applicable to the facts of this case. He relies on People v. Ward (1967) 66 Cal.2d 571 [58 Cal.Rptr. 313, 426 P.2d 881], and People v. Belles (1968) 69 Cal.2d 906 [73 Cal.Rptr. 389, 447 P.2d 629]. In Ward we held that a defendant was not required to comply with the provisions of section 1237.5 if he was not challenging the validity of his plea of guilty but was asserting only that errors occurred in the proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. Although section 1237.5 refers generally to an appeal “from a judgment of conviction upon a plea of guilty,” we stated that the section was only intended to apply to a situation in which a defendant claimed that his plea of guilty was invalid. (People v. Ward, supra, at p. 574.) Belles, following the reasoning of Ward, held that section 1237.5 did not apply where the defendant’s only claim was that the trial court erred in imposing a prison sentence contrary to the terms of the bargain by which his guilty plea was obtained. (People v. Belles, supra, at p. 909.)3
Petitioner contends that Ward and Belles govern this case because he is asserting not only that his guilty plea was invalid, but also that the trial court erred in the penalty proceeding subsequent to the plea by imposing a prison sentence contrary to a plea bargain. The only basis alleged in support of a “plea bargain” is petitioner’s statement that he was told by his trial counsel that upon a plea of guilty he would be committed to the state rehabilitation center as a narcotic addict. The Attorney General has denied that trial counsel made any such promise. Even if petitioner’s allegations are true, however, they are not sufficient to warrant relief on the theory that the trial court imposed sentence in violation of a valid plea bargain. “[Pjurported misrepresentations of defense counsel that a specific sentence will be imposed are insufficient to vitiate a plea entered in reliance thereon” (People v. Reeves (1966) [6264] Cal.2d 766, 776 [51 CaLRptr. 691, 415 P.2d 35]), and they are certainly insufficient to have any binding effect on the trial court as to the sentence to be imposed. Such alleged misrepresentations cannot rise to the level of a valid plea bargain in the absence of at least apparent substantial corroboration by a responsible public official. (Cf., People v. Gilbert (1944) 25 Cal.2d 422, 443 [154 P.2d 657].) Petitioner has not alleged that his attorney’s representations were in any way substantiated by the prosecution or the court, nor has he alleged that his attorney purported to speak for a responsible public official. Thus there is no merit in petitioner’s claim that the trial court erred in the subsequent proceedings by imposing a prison sentence in violation of a bargain by which his plea was obtained.
Even in the absence of a valid plea bargain, alleged misrepresentations by defense counsel could, of course, be considered by the trial court in ruling on a motion before judgment to withdraw a guilty plea pursuant to Penal Code section 1018. Nothing we have said above with respect to plea bargains is intended in any way to restrict the power of the trial court in the exercise of its discretion in granting or denying motions to withdraw guilty pleas pursuant to that section. In this respect, however, petitioner’s allegations of misrepresentations by defense counsel, like his remaining allegations, that at the time he entered his guilty plea he was addicted to and under the influence of drugs and was not “fully aware,” go only to the validity of his plea. What he is actually contending, therefore, is that the trial court erred in not permitting him to withdraw an allegedly invalid plea of guilty.
The merits of this contention are not before us at this time, for we are now concerned only with the issue of whether section 1237.5 is applicable when a defendant seeks review of an order denying a motion to withdraw a guilty plea even though the motion relates to the validity of the plea. It is contended that to require compliance with section 1237.5 would seriously restrict inquiry into error in the denial of the motion. There is no merit in this contention. Section 1237.5 does not limit the scope of review of the denial of a motion to withdraw a plea of guilty when that error is properly before the court on appeal. It merely sets forth a procedure for precluding frivolous appeals by requiring the defendant to set forth grounds for appeal and, if he does so, by requiring the trial court to rule on the issue of probable cause.
An order before judgment denying a motion to withdraw a guilty plea is not appealable, but can be reviewed on an appeal from the judgment. (People v. Francis (1954) 42 Cal.2d 335, 336 [267 P.2d 8]; People v. Caruso (1959) 174 Cal.App.2d 624, 630 [345 P.2d 282]; Pen. [63]Code, § 1237.) Although on such an appeal the merits of the issue of guilt or innocence are not reviewable (Stephens v. Toomey (1959) 51 Cal.2d 864, 870 [338 P.2d 182]), both before and after the enactment of section 1237.5, the constitutional, jurisdictional and other errors referred to in that section have been reviewed. Particular claims of error that have been considered and that may still be considered include insanity at the time of the plea (People v. Laudermilk (1967) 67 Cal.2d 272, 282 [61 CaLRptr. 644, 431 P.2d 228]), ineffective waiver of constitutional rights (People v. Navarro (1966) 243 Cal.App.2d 755, 758 [52 CaI.Rptr. 686]), ineffective assistance of counsel {People v. Natividad (1963) 222 Cal.App.2d 438, 441 [35 CaI.Rptr. 237]), a plea obtained by misrepresentation {People v. Rose (1959) 171 Cal.App.2d 171, 172 [339 P.2d 954]), or other abuse of discretion in denying a motion to withdraw a guilty plea. {People v. Francis (1954) 42 Cal.2d 335, 338 [267 P.2d 8]; People v. Griggs (1941) 17 Cal.2d 621, 624 [110 P.2d 1031]). The impact of section 1237.5 relates to the procedure in perfecting an appeal from a judgment based on a plea of guilty, and not to the grounds upon which such an appeal may be taken.4
In determining the applicability of section 1237.5, the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made. The argument is made that since a motion to withdraw a guilty plea must of necessity be made after the plea, the ruling on the motion is a result of a “subsequent adversary hearing” within the meaning of Ward and Delles. Although Ward and Delies were both based on errors that occurred in proceedings subsequent to the plea, we believe that the determinative factor in each case was the substance of the error being challenged, not the time at which the hearing was conducted. In neither case was the validity of the plea in question. If a defendant challenges the validity of his plea by way of a motion to withdraw the plea, he cannot avoid the requirements of section 1237.5 by labelling the denial of the motion as an error in a proceeding subsequent [64]to the plea.5 To hold otherwise would be to invite such motions as a matter of course, and would be wholly contrary to the purpose of section 1237.5. In the instant case, since petitioner is challenging the validity of his plea, he is required to comply with section 1237.5.
Relief from Default
Even though petitioner has not complied with section 1237.5, the facts of this case raise a substantial question involving the scope of an attorney’s duty to assist his client in perfecting an appeal from a judgment upon a plea of guilty.
Where a plea of guilty is not involved, rule 31(a) requires that a notice, of appeal be filed within 10 days after rendition of judgment. In cases in which a judgment of conviction was entered upon a plea of guilty, rule 31(d) also requires that a notice of appeal be filed within 10 days after rendition of judgment, but further provides that the appeal shall not be operative unless the defendant files the statement, and the trial court executes and files the certificate of probable cause, required by section 1237.5 of the Penal Code. The defendant must file the statement within 10 days after rendition of judgment, and if filed within such period it shall serve as a notice of appeal if no other notice of appeal has been filed. If a timely notice of appeal has been filed, the trial court may permit the defendant to file his statement beyond the 10-day period, but not later than 40 days after rendition of judgment. It is readily apparent that where a defendant has been convicted upon a plea of guilty, his right to appeal may be dependent on many technical requirements of which he may be unaware.
[65]Pursuant to rule 31(a), appellate courts have the power to grant relief from default in filing notices of appeal in proper cases. This power is to be liberally construed to protect the right to appeal. (People v. Acosta (1969) 71 Cal.2d 683, 685 [78 Cal.Rptr. 864, 456 P.2d 136]; People v. Camarillo (1967) 66 Cal.2d 455, 456 [58 CaLRptr. 112, 426 P.2d 512].) “In exercising its power to determine the circumstances which warrant granting a defendant relief from his failure to file a timely notice of appeal [citations] this court has established the following general rules: A defendant is entitled to relief, absent grounds for waiver or estoppel, where he makes a timely request of his trial attorney to file an appeal, thereby placing the attorney under a duty to file it, instruct defendant how to file it, or secure other counsel for him [citations]. . . .” (People v. Acosta, supra, at p. 687.) The reasons for imposing such a duty on trial counsel have often been stated by this court and they need not be repeated here. (See People v. Acosta, supra, at p. 685; People v. Camarillo, supra, at p. 458; People v. Curry (1965) 62 Cal.2d 207, 209-210 [42 CaLRptr. 17, 397 P.2d 1009]; People v. Diehl (1964) 62 Cal.2d 114, 117 [41 Cal.Rptr. 281, 396 P.2d 697]; People v. Flanagan (1964) 62 Cal.2d 63, 66 [41 CaLRptr. 85, 396 P.2d 389]; People v. Johnson (1964) 61 Cal.2d 843, 844 [40 CaLRptr. 708, 395 P.2d 668]; People v. Tucker (1964) 61 Cal.2d 828, 832 [40 CaLRptr. 609, 395 P.2d 449]; People v. Casillas (1964) 61 Cal.2d 344, 346 [38 Cal. Rptr. 721, 392 P.2d 521].)
The Attorney General has stipulated that within 10 days after imposition of sentence petitioner told his attorney that he wanted to appeal, and that his attorney did not take any action to perfect the appeal. (11) The rationale of the above rule granting relief from the failure to file a timely notice of appeal applies with equal force to granting relief from default for the failure to file a timely statement pursuant to section 1237.5, and the appellate court is empowered to grant such relief by rule 45 of the California Rules of Court. When a defendant makes a timely request of his trial attorney to file an appeal from a judgment upon a plea of guilty, the attorney must file the 1237.5 statement, instruct defendant how to file it, or secure other counsel for him.6
The Attorney General has argued that to impose such a duty would place the attorney in the frustrating position of “attempting to make a silk purse out of a sow’s ear”; that it would be an “often-uncompensated intrusion upon the attorney’s time and energies”; and that it would be [66]an unreasonable burden in light of the “miniscule chance” that a certificate of probable cause would ever be issued. We find little merit in these arguments when they are weighed against the importance of the right to counsel and the right to appeal. Furthermore, the attorney is not required to assist the defendant in setting forth frivolous contentions. The attorney need only assist him in setting forth the relevant facts necessary to enable the trial court to rule on the issue of probable cause.
The Legislature has conditioned the right to appeal from a plea of guilty upon the filing of the required statement. Advice or assistance of counsel in filing the notice of appeal is meaningless if counsel does not also advise or assist in preparation and filing of the required statement. It follows that counsel’s obligation to assist in filing the notice of appeal necessarily encompasses assistance with the statement required by section 1237.5.
Counsel appointed by this court to represent petitioner in this proceeding is hereby directed to assist petitioner in the preparation of the required statement. The Clerk of the Superior Court of San Mateo County is directed to file such a statement and to treat it as a notice of appeal in the present case if such statement is tendered to him within 10 days after our judgment herein becomes final. If such a statement is filed and the trial court within the time specified by rule 31(d) of the California Rules of Court executes and files a certificate of probable cause, the clerk is directed to proceed with the preparation of the record on appeal.
McComb, J., Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurred.
Rule 31(a) requires that notice of appeal in a criminal case be filed within 10 days after rendition of judgment, but it also empowers appellate courts to grant relief in proper cases. (People v. Acosta (1969) 71 Cal.2d 683, 685 [78 Cal.Rptr. 864, 456 P.2d 136].) The Attorney General has stipulated that within 10 days after imposition of sentence petitioner told his attorney that he wished to appeal and that his attorney did not take any action to perfect the appeal. Apart from the applicability of section 1237.5, these facts would entitle petitioner to relief. (People v. Camarillo (1967) 66 Cal.2d 455, 458 [58 Cal.Rptr. 112, 426 P.2d 512].)
Rule 31(d) provides in part: “In cases in which a judgment of conviction was entered upon a plea of guilty or nolo contendere, the defendant shall file his notice of appeal within 10 days after the rendition of judgment, but the appeal shall not be operative unless the defendant files the statement, and the trial court executes and files the certificate of probable cause, required by section 1237.5 of the Penal Code. The defendant shall file such statement within 10 days after the rendition of judgment and when filed within such period it shall serve as a notice of appeal if no other notice of appeal is filed. Where a timely notice of appeal has been filed, the trial court may, for good cause permit the filing of the defendant’s statement beyond the 10-day period but not later than 40 days after the rendition of judgment. Within 60 days after the rendition of judgment the trial court shall execute and file either a certificate of probable cause or an order denying such a certificate and shall forthwith notify the parties of the granting or denial of such certificate.”
Based on the same rationale, Courts of Appeal have held section 1237.5 not applicable in a number of other situations where defendant sought to appeal following a judgment of conviction upon a guilty plea, but where defendant was not challenging the validity of that plea. E.g., Moran v. St. John (1968) 267 Cal.App.2d 474, 477-478 [73 Cal.Rptr. 190] (alleged error in denial of motion to suppress evidence pursuant to section 1538.5 of the Penal Code); People v. Brown (1968) 260 Cal.App.2d 745, 746-747 [67 Cal.Rptr. 288] (alleged error in denial of motion to dismiss based upon prosecution’s noncompliance with section 1381.5 of the Penal Code); People v. Coley (1968) 257 Cal.App.2d 787, 793 [65 Cal.Rptr. 559] (allowing review of conclusion by Director of Corrections that defendant was not a fit subject for treatment); People v. Rogers (1967) 252 Cal.App.2d 1015, 1020 [61 Cal.Rptr. 48] (allegation that trial court erred in pronouncing judgment and sentence because of noncompliance with section 1203.2a of the Penal Code). In each of these cases, however, the court reiterated the rule that when a defendant challenges the validity of his guilty plea, compliance with section 1237.5 is a prerequisite to an appeal.
The only change brought about by section 1237.5 is that the ground upon which the alleged error is based is presented initially to the trial court rather than the appellate court. It has been argued that section 1237.5 is unconstitutional in that it is a violation of due process to put the trial court in the position of determining whether its own actions have given rise to probable cause for appeal. This contention would only be meritorious if the term “probable cause” in section 1237.5 was interpreted as meaning probable ground for reversal of the judgment. Since the trial court cannot properly be put in the position of commenting adversely on its own rulings, the Legislature could not have intended such a meaning. Rather the test that must have been intended to apply is whether the appeal is clearly frivolous and vexatious or whether it involves an honest difference of opinion. (See Review of Selected 1965 Code Legislation, pp. 190-191; Cf., In re Adams (1889) 81 Cal. 163, 167 [22 P. 547]; People v. Cox (1944) 65 Cal.App.2d 712 [151 P.2d 269]; Pen. Code, § 1243.) Application of this test by the trial court would not constitute a violation of due process.
The following amendment, effective January 1, 1970, has been added to rule 31(d): “If the appeal from a judgment of conviction entered upon a plea of guilty or nolo contendere is based solely upon grounds alleged to have occurred after entry of such plea, the provisions of Section 1237.5 of the Penal Code requiring a statement by the defendant and a certificate of probable cause by the trial court are inapplicable, but the appeal shall not be operative unless the notice of appeal states that it is based upon such grounds.” For a discussion of the practical problems which necessitated this amendment, see Davis v. Superior Court (1969 ) 272 Cal.App,2d 707, 709-710 [77 Cal.Rptr. 779],
However, as evidenced by the facts of the instant case, the amendment to rule 31(d) has not completely solved the problem of determining when section 1237.5 must be complied with. Whenever a notice of appeal states that it is “based solely upon grounds alleged to have occurred after entry of such plea,” rule 31(d) requires the clerk to prepare a record after the notice of appeal is filed. On the other hand, when it thereafter appears from the defendant’s brief that he is in fact challenging the validity of his plea, he cannot avoid the requirements of section 1237.5 by labelling the denial of a motion to withdraw the plea as an error in a proceeding subsequent to the plea. Accordingly, in such cases the appellate court must dismiss the appeals for noncompliance with section 1237.5, unless relief from default in this respect is granted by the appellate court.
In the only previous case to have considered this issue, the court assumed that trial counsel would be under a duty to assist the defendant in preparation of a statement pursuant to section 1237.5. (People v. Davis (1967) 255 Cal.App.2d 907, 909 [64 Cal.Rptr. 1].)