Moran v. St. John

FOGG, J. pro tem.

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On December 20, 1967, petitioner entered a plea of guilty to count I of an information charging him with a violation of section 11530 of the Health & Safety Code (possession of marijuana) after his pretrial motion to suppress was heard and denied.

[475]

On January 3, 1968, petitioner’s application for probation was denied and he was sentenced to state prison.

On January 11, 1968, petitioner through his attorney filed with the Clerk of the Orange County Superior Court a notice of appeal from the denial of the motion to suppress and the judgment of January 3, 1968. By a notice of filing notice of appeal, dated January 11, 1968, said clerk informed petitioner that his appeal would not be operative unless the requirements of section 1237.5 of the Penal Code were satisfied.

On January 15, 1968, a letter was filed from petitioner’s attorney pointing out the language of section 1538.5, subdivision (m), of the Penal Code. On that same day a second notice of appeal was filed on behalf of petitioner.

Said clerk, on January 15, 1968, replied to counsel’s letter with a second notice of filing notice of appeal, stating that the appeal would not become operative until either the requirements of section 1237.5 of the Penal Code were satisfied or an order of the court directing preparation of the record on appeal was received.

Petitioner contends that section 1237.5 of the Penal Code does not apply since the validity of his plea of guilty is not being challenged; and that to the extent that the provisions of section 1538.5 of the Penal Code are inconsistent with section 1237.5, that the former controls, it being the latest expression of the Legislature and a special statute.

Respondent contends that no statutory inconsistency exists and that in all cases involving appeals from pleas of guilty or nolo contendere, the petitioner must file a certificate of probable cause to make the appeal operative under section 1237.5 of the Penal Code and rule 31(d), Rules of Court.

The question presented, therefore, is: Are the provisions of section 1538.5, subdivision (m), of the Penal Code for review of the validity of a search or seizure after a judgment of conviction predicated on a plea of guilty subject to the requirements of section 1237.5 of the Penal Code?