People v. Chen

[1048]

Opinion

THE COURT.

Appellant contends that he was denied the right to have counsel present during interrogation, that the provisions of section 851.5 of the Penal Code should have applied during the custodial interrogation, and that the evidence was insufficient to establish the voluntariness of his confession.

The record indicates no attempt on the part of appellant to secure a certificate of probable cause from the trial court. Under the circumstances, the issues raised are not properly before us and the appeal must be dismissed. (Pen. Code, § 1237.5.) However, the record also shows that the notice of appeal was filed in propria persona and that appellant was probably without the benefit of counsel at the time in which the certificate of probable cause should have been obtained. The purpose of section 1237.5 of the Penal Code is to avoid frivolous or vexatious appeals.

(People

v.

Ribero

(1971) 4 Cal.3d 55, 63 [92 Cal.Rptr. 692, 480 P.2d 308].) Because a portion of the issues raised here is of sufficient significance that a certificate of probable cause should have been granted if properly applied for, and because, theoretically, permission to belatedly seek a certificate of probable cause could, upon a sufficient showing, still be granted in this case, we deem it advisable to consider all issues raised in the briefs on their merits. (See

People

v.

McMillan

(1971) 15 Cal.App. 3d 576, 578 [93 Cal.Rptr. 296].)

Right to Counsel

Under the circumstances of this case, the fact that counsel had been appointed to represent appellant on an unrelated charge did not make ineffective his clear waiver of counsel, which waiver was sufficiently established by Officer McKenna’s testimony. The record shows that the officer had no reason to suspect that counsel had been appointed on the burglary charge in Oakland, with which he had no connection, or that said counsel would have been able to represent appellant in the San Francisco matter. (See