People v. Grey

Opinion

CARR, J.

As part of a plea bargain, defendant pled nolo contendere to one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a) (1)) and an allegation that he used a deadly weapon (Pen. Code, § 12022, subd. (d)) with the understanding that he would be sentenced to not more than the middle term plus the one-year enhancement for deadly weapon use. In exchange, the court dismissed one count of felony infliction of corporal injury on a spouse (Pen. Code, § 273.5) along with an associated deadly weapon-use allegation (Pen. Code, § 12022, subd. (b)). Thereafter, the court denied defendant’s motion to withdraw the plea and sentenced defendant to state prison for the middle term of three years with the one-year enhancement, for an aggregate sentence of four years. On appeal, defendant asserts the court abused its discretion by denying his motion to withdraw his plea.

I

Initially, we observe that defendant has failed to abide by the requirements of Penal Code section 1237.5 (hereafter section 1237.5). Although the requirement of a certificate of probable cause has been abolished by a recent amendment to 1237.5, a verified statement demonstrating grounds for appeal is still required. Section 1237.5 provides: “No appeal shall be taken by a defendant from a judgment of conviction upon a plea of guilty or nolo contendere, . . . except where the defendant has filed as part of the notice of appeal a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.” A defendant who challenges the validity of the plea, as does defendant in this case, must file this section 1237.5 statement.

(People

v.

Ribero

(1971) 4 Cal.3d 55, 63-64 [92 Cal.Rptr. 692, 480 P.2d 308]; Cal. Rules of Court, rule 31(d).) Defendant herein states in his notice of appeal that “the court erred in denying the defendants [sic] motion to withdraw his plea.” The notice of appeal is not accompanied by any other statement, and it is not executed under oath or penalty of perjury.

In

People

v.

Forrest

(1990) 221 Cal.App.3d 675, 678, footnote 2 [270 Cal.Rptr. 573], the Fourth District recently held that a defendant who is unrepresented by counsel substantially complies with section 1237.5 if he files a “written statement” with his notice of appeal even though the statement is not executed under oath or penalty of perjury. The