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66 Cal. 2d 664

People v. Herrera

California Supreme Court

Decided May 5, 1967

California Supreme Court · decided 1967-05-05

Key passage — most relied on by later courts

“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. "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 such plea which do not challenge the validity of the plea 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. "The time for preparing, certifying and filing the record on appeal or for filing an agreed statement shall commence to run when the appeal becomes operative.”

quoted by 1 later decision, including 23 Cal. 3d 77 - People v. Holland

Good law ✅— No negative treatment on recordhow we know

Decided 1967-05-05

How this case has been cited

Cited by 30 later decisions — most recently January 1999 · most notably 23 Cal. 3d 77 - People v. Holland (1978), People v. Lloyd (1998)

30 state decisions

2101967197019801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

McCOMB, J.

¶1The Court of Appeal, Second Appellate District, Division One, granted a motion dismissing defendant’s appeal without an opinion.

¶2Fads: On December 13, 1965, a judgment of conviction was entered in the trial court following defendant’s plea of guilty to the charge of escape from the Santa Barbara County Honor Farm (Pen. Code, §4532, subd. (b)).

¶3On December 24, 1965, defendant filed with the trial court a written statement required by section 1237.5 of the Penal Code1 and a notice of appeal. The notice of appeal and the *665statement required by defendant under section 1237.5 are dated December 21, 1965, and his address is shown as the Santa Barbara County jail. His notice and statement were timely filed.

¶4By the terms of rule 31(d) of the California Rules of Court, the trial judge, within 60 days after the rendition of judgment, should have filed either a certificate of probable cause in order to make defendant’s appeal operative or an order denying such certificate. He did neither.

¶5On March 10, 1966, the trial judge approved the record on appeal, which was thereafter transmitted to the Court of Appeal, and counsel was appointed to represent defendant.

¶6The statement executed by defendant pursuant to section 1237.5 of the Penal Code, although filed in the trial court, was not included in the record on appeal, and on motion of the Attorney General the appeal was dismissed for defendant’s failure to file the statement and failure of the trial judge to file a certificate of probable cause.

¶7Question: Was defendant’s appeal properly filed?

¶8Yes. By approving the transcript on appeal, the trial judge in effect certified defendant’s ease for appeal. As a result, defendant, who had filed the required statement with the trial court, should not be penalized for the trial court’s failure to file a certificate of probable cause.

¶9The motion to dismiss the appeal is denied.

¶10Traynor, C. J., Peters, J., Tobriner, J., Burke, J., and Sullivan, J., concurred.

¶11Respondent’s petition for a rehearing was denied May 31, 1967.

¶12Section 1237.5 reads: “No appeal shall be taken by defendant from a judgment of conviction upon a plea of guilty or nolo contendere, except where:

“ (a) The defendant has filed with the tidal court a written statement, executed under oath or penalty of perjury showing reasonable consti*665tutional, jurisdictional, or other grounds going to the legality of the proceedings; and
“(h) The trial court has executed and filed a certificate of probable cause for such appeal with the county clerk.' ’
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