Lara v. Superior Court

Opinion

FEINBERG, J.

This petition for writ of mandate, filed in pro. per. by a criminal defendant, seeks to compel the trial court to issue a certificate of probable cause to permit him to appeal his conviction (Pen. Code, § 1237.5). We have concluded that the trial court erred in refusing to issue the certificate of probable cause. We issue writ of mandate.

[439]

On July 14, 1981, after the commencement of his rape trial, petitioner changed his plea to nolo contendere to each of the four counts. The court sentenced petitioner to six years on each count, all terms to run concurrently.

On September 11, 1981, the day before the 60-day deadline (Cal. Rules of Court, rule 31(d)), petitioner’s notice of appeal and first declaration in support of an application for a certificate of probable cause were received by the county clerk. The declaration sought to raise three issues: 1) error in imposing the upper term of six years; 2) error in imposing a six-year term when petitioner rejected an initial offer of three years; and 3) petitioner was “under a great deal of stress and duress and under a great deal of misinformation & nonsupport from Public Defender’s Office.” On September 20, 1981, petitioner sent a supplemental declaration in support of application for a certificate of probable cause. This declaration raised 12 additional issues, numbered “4-15.” Among them was a claim that petitioner was not informed that if convicted he would be required to register as a sex offender. On September 24, 1981, the court filed all the documents received from petitioner and denied the application for a certificate of probable cause. This petition followed.

Penal Code section 1237.5 provides that no appeal shall be taken 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.” Rule 31(d), California Rules of Court, provides that:

“In cases in which a judgment of conviction was entered upon a plea of guilty or nolo contendere, the defendant shall file the statement required by Section 1237.5 of the Penal Code, which shall serve as a notice of appeal, within 60 days after the rendition of judgment, 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 his statement 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.