People v. Lloyd

¶1I respectfully dissent.

¶2This court’s historical approach to certificate of probable cause issues has proven disastrous. Penal Code section 1237.5 provides that “[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [^] (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, ffl] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the county clerk.” Despite the statute’s admittedly “broad language” (People v. Panizzon (1996) 13 Cal.4th 68, 74 [51 Cal.Rptr.2d 851, 913 P.2d 1061]; People v. Jones (1995) 10 Cal.4th 1102, 1106 [43 Cal.Rptr.2d 464, 898 P.2d 910]), this court long ago went into the business of crafting exceptions to die statute. (See People v. Ward (1967) 66 Cal.2d 571 [58 Cal.Rptr. 313, 426 P.2d 881].)

¶3For the past 30 years, we have suffered with the consequences, struggling repeatedly—and unsuccessfully—to articulate the scope of the certificate of probable cause requirement, now riddled with ill-defined exceptions and exceptions to exceptions. (See, e.g., People v. Panizzon, supra,13 Cal.4th 68; People v. Hoffard (1995) 10 Cal.4th 1170 [43 Cal.Rptr.2d 827, 899 P.2d 896]; People v. Jones, supra,10 Cal.4th 1102; People v. Sumstine (1984) 36 Cal.3d 909 [206 Cal.Rptr. 707, 687 P.2d 904]; In re Joseph B. (1983) 34 Cal.3d 952 [196 Cal.Rptr. 348, 671 P.2d 852]; People v. Holland (1978) 23 Cal.3d 77 [151 Cal.Rptr. 625, 588 P.2d 765]; People v. Kaanehe (1977) 19 Cal.3d 1 [136 Cal.Rptr. 409, 559 P.2d 1028]; People v. DeVaughn (1977) 18 Cal.3d 889 [135 Cal.Rptr. 786, 558 P.2d 872]; In re Brown (1973) 9 Cal.3d 679 [108 Cal.Rptr. 801, 511 P.2d 1153]; People v. Flores (1971) 6 Cal.3d 305 [98 Cal.Rptr. 822, 491 P.2d 406]; People v. Ribero (1971) 4 Cal.3d 55 [92 Cal.Rptr. 692, 480 P.2d 308]; People v. West (1970) 3 Cal.3d 595 [91 Cal.Rptr. 385, 477 P.2d 409]; People v. Laudermilk (1967) 67 Cal.2d 272 [61 Cal.Rptr. 644, 431 P.2d 228]; People v. Herrera (1967) 66 Cal.2d 664 [58 Cal.Rptr. 319, 426 P.2d 887]; People v. Ward, supra,66 Cal.2d 571.)1 This is to say nothing of the burden on the Courts of Appeal, which have been set adrift in a sea of confusion. Instead of raising the white flag and *668surrendering with dignity, the majority doggedly pursues its self-declared war.

¶4Ironically, the whole purpose of the certificate of probable cause requirement is “to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas. [Citations.] The objective is to promote judicial economy ‘by screening out wholly frivolous guilty [and nolo contendere] plea appeals before time and money is spent preparing the record and the briefs for consideration by the reviewing court.’ [Citations.]” (People v. Panizzon, supra,13 Cal.4th at pp. 75-76.) Since a defendant can always obtain a record and counsel for appeal by noticing a “noncertificate” appeal, the certificate of probable cause requirement now fails to serve its intended screening function before these expenses are incurred. The time is long overdue either to extend the certificate of probable cause requirement to all postplea appeals or to abolish it. The present situation is simply a prescription for unnecessary litigation. Of course, only the Legislature has the power to abolish the statutory requirement of a certificate of probable cause altogether. This court, however, does have the power to rethink the gloss we have placed on the statute’s otherwise comprehensive language.

¶5We need not go that far to resolve this case. But we can at least put a halt to the process. Here, the majority creates yet another exception to the rules governing certificates of probable cause—this time an exception to our own implementing rule, California Rules of Court, rule 31(d) (hereafter rule 31(d)). The second paragraph of rule 31(d) provides as follows: “If the appeal from a judgment of conviction entered upon a plea of guilty or nolo contendere is based solely upon grounds (1) occurring after entry of the plea which do not challenge its validity or (2) involving a search or seizure, the validity of which was contested pursuant to section 1538.5 of the Penal Code, 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.” (Italics added.) The majority concludes “[t]here is no requirement that [a notice of appeal] must make the requisite statement of basis expressly rather than impliedly.” (Maj. opn., ante, at p. 665.) Applying this new construction of rule 31(d), the majority holds the notice of appeal at issue in this case contains a sufficient implied statement “through its combined reference to ‘sentence,’ which is imposed after the entry of a plea, and ‘Rule 31(d),’ which allows an appeal to be taken without a statement of grounds by the defendant and a certificate of probable cause by the trial court only if it does not challenge its validity.” (Maj. opn., ante, at p. 665.)

¶6I cannot agree. The language of rule 31(d)—like the language of Penal Code section 1237.5—is unambiguous. It requires an express statement that *669the appeal is based on one of the two grounds identified in the second paragraph of the rule—in this case, an express statement that the appeal is based solely upon grounds “occurring after entry of the plea which do not challenge its validity.” (Rule 31(d); see also In re Manzy W. (1997) 14 Cal.4th 1199, 1203-1204 [60 Cal.Rptr.2d 889, 930 P.2d 1255] [statute requiring juvenile court to “ ‘declare the offense to be a misdemeanor or felony’ ” is “unambiguous” and “requires an explicit declaration”].) There are sound policy reasons for the requirement of an express statement of grounds. Every year, the clerks of our appellate courts process thousands of criminal notices of appeal. This processing typically occurs prior to the appointment of counsel and prior to the preparation of the appellate record. In this context, it is especially important to have clear, easy to apply rules, not rules that turn on esoteric determinations of whether a particular notice of appeal contains an adequate “implied statement” of grounds.

¶7Even if the majority were correct in its conclusion that rule 31(d) allows an implied statement of grounds in some cases, the notice of appeal at issue in this case does not contain a sufficient implied statement. The notice of appeal’s reference to “Rule 31(d)” is insufficient to demonstrate that this is a noncertificate appeal. As the majority explains (maj. opn., ante, at pp. 663-664), the rule governs both certificate and noncertificate appeals. Nor does the additional reference to the “sentence” demonstrate that this is a noncertificate appeal. As the majority acknowledges (id. at p. 665), some sentencing appeals do require certificates of probable cause. (See People v. Panizzon, supra,13 Cal.4th 68.)2

¶8Because the result the majority reaches is neither compelled by the governing statutes and court rules nor prudent from a policy standpoint, I would affirm the order of the Court of Appeal dismissing the appeal.