People v. Ivester

Opinion

WIENER, Acting P. J.

—Defendant Donald Ivester agreed to plead guilty to unlawfully manufacturing methamphetamine in excess of one pound (Health & Saf. Code, § 11379.6, subd. (a)) and endangering a child (Pen. Code, § 273a) 1 in exchange for the district attorney dismissing two additional felonies with which he was charged. In this appeal from the judgment he contends his guilty pleas were unknowingly and involuntarily made. In his consolidated petition for writ of habeas corpus he seeks relief on a similar ground asserting his pleas were induced by his counsel’s inaccurate statement that the appellate court would review his unsuccessful motion to disclose the identity of the confidential informant. Although Ivester has failed to file the statement required by section 1237.5, 2 we nonetheless examine his appellate arguments to determine whether he was deprived of the effective assistance of counsel. In doing so we conclude defense counsel was deficient in failing to file the statement, but decide counsel’s oversight did not actually prejudice Ivester. We therefore affirm the judgment. We also deny his petition for writ of habeas corpus.

*334 The Appeal

Ivester’s opening brief contains three separate arguments why we must reverse his conviction of manufacturing methamphetamine: (1) the court prejudicially erred in failing to adequately inquire into the factual basis for his plea as required by section 1192.5 3 ; (2) he did not knowingly enter his plea because he lacked an understanding of the elements of the offense to which he was pleading guilty; and (3) his guilty plea was involuntarily made and in violation of his right to due process because the court failed to advise him of all the plea’s penal consequences. The Attorney General responds by telling us that we may not consider these arguments because Ivester failed to include the grounds for his contentions on the written statement required by section 1237.5.

Section 1237.5 Is Constitutional

Initially Ivester asks us to ignore section 1237.5’s requirement on the ground the statute is unconstitutional denying him due process and equal protection of the laws under our state and federal constitutions. Ivester reasons as follows.

He says the substantial lag between trial counsel’s filing a notice of appeal and the later appointment of appellate counsel after the filing of the appellate record creates a probability the certificate required by section 1237.5 will be incomplete thereby denying a defendant effective appellate review. Ivester’s argument is predicated on his assumption that a similar situation does not arise where the defendant has retained counsel who can more readily determine the grounds for appeal and prepare a complete certificate in a timely manner. Ivester contends this disparity is further exacerbated for the indigent appellant where the appellate court, as it did here, denies appointed counsel’s later motion to amend the certificate to state grounds omitted by trial counsel or by the defendant acting in propria persona.

As sensitive as we are to the professional difficulties confronting appointed appellate counsel, these difficulties do not render section 1237.5 *335 unconstitutional. Among our reasons for this conclusion is our unwillingness to assume in every case the section 1237.5 certificate will be incomplete. Lacking any evidence on this issue we are more inclined to draw on our experience and conclude otherwise. We think that a complete statement is probably the rule and the incomplete one the exception. The appellate court’s denial of a request to amend the incomplete statement before briefing is also the exception rather than the rule. Generally the appellate court grants relief in such situations to avoid the precise dilemma posed by this case and to permit the full and complete appellate review of all errors to which a defendant is constitutionally entitled. The fact that there may be exceptions to these general rules is not a sufficient basis for us to declare section 1237.5 unconstitutional. 4

The Determination of Counsel’s Effectiveness From the Appellate Record Permits Review

I

Ivester’s alternative argument is that even if section 1237.5 is valid, we must nonetheless consider the substance of his appellate contentions to determine whether his counsel was ineffective in failing to prepare and file the requisite statement. Although we agree with his argument we are somewhat surprised to find this narrow procedural issue has spawned, and continues to spawn, considerable debate reflecting diverse appellate views on this issue. 5 We say this because the issue involves only when the appellate court will review certain issues following a guilty plea and not whether they *336 are subject to review. In any event some appellate courts committed to a literal interpretation of the statute dismiss appeals which seek review of issues which require the section 1237.5 certificate/statement. 6 Other courts emphasizing the combined effect of the defendant’s right to effective assistance of counsel and judicial economy reach the merits of the defendant’s contentions. 7 In the circumstances of this case, we join the latter group. 8

II

Fundamental to our system of criminal justice is the defendant’s constitutional right to the effective assistance of counsel at all stages of the proceedings. (See Strickland v. Washington (1984) 466 U.S. 668, 684-685 [80 L.Ed.2d 674, 691-692, 104 S.Ct. 2052].) California has played an important part in the definition of these rights. In Douglas v. California (1963) 372 U.S. 353 [9 L.Ed.2d 811, 83 S.Ct. 814], holding unconstitutional the then-California practice of having the intermediate appellate court go through the trial court record to determine whether any good could be served by appointment of counsel on appeal, the United States Supreme Court stressed that all defendants, rich and poor, are entitled to the benefit “of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf. . . .” (Id. at p. 358.) A few years later in Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493, 87 S.Ct. 1396], overturning California’s procedure which had allowed appointed appellate counsel to withdraw from the appeal by merely filing a no-merit letter, the high court made clear that appointed appellate counsel must protect the rights of indigent defendants to due process and equal protection and that effective appellate representation required active, not passive advocacy on the client’s behalf. (In re Smith (1970) 3 Cal.3d 192, 197 [90 Cal.Rptr. 1, 474 P.2d 969] citing Anders at pp. 743, 744 [18 L.Ed.2d at pp. 497, 498].)

*337 We therefore cannot overlook Ivester’s constitutional right to effective counsel in the appellate process in resolving the procedural question presented. Such a claim may be cognizable on appeal without the necessity of a section 1237.5 statement since it focuses on matters occurring after entry of the plea. (See Cal. Rules of Court, rule 31(d).) If, by neglecting to provide the required statement, counsel failed to reasonably protect Ivester’s appellate rights, an appellate court may not simply dismiss the appeal without inquiring further to determine whether counsel’s effectiveness can be examined in the appeal itself. If it can, there is no need for a separate habeas corpus petition. (People v. Pope (1979) 23 Cal.3d 412, 425-426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].)

The record certainly contains the initial predicate for our inquiry. Absent a statement showing reasonable constitutional, jurisdictional or other grounds going to the legality of the proceedings we are foreclosed by section 1237.5 from considering the arguments in Ivester’s appellate brief. In such circumstances where the statement is the sine qua non for appellate review the responsibility for its filing or assisting his client in doing so rested with Ivester’s trial counsel. (People v. Santos, supra, 60 Cal.App.3d 372, 376-377, citing People v. Davis (1967) 255 Cal.App.2d 907, 909 [64 Cal.Rptr. 1]; see also People v. Ribero, supra, 4 Cal.3d 55, at p. 65, fn. 6.) In failing to do so where he personally signed the notice of appeal Ivester’s lawyer breached the duty he owed to his client. Whether that breach prejudiced Ivester is a separate question, but one which we must answer. (Strickland v. Washington, supra, 466 U.S. 668, 691-696 [80 L.Ed.2d 674, 695-699].)

The holdings in those cases noted earlier (fn. 6, ante) which dismiss appeals lacking the requisite certificate/statement do not preclude appellate court review in a petition for writ of habeas corpus questioning the effectiveness of counsel. For example, People v. Pinon, supra, 96 Cal.App.3d 904, which made clear the purposes underlying section 1237.5 would be implemented only if there were compliance with its procedures, implicitly invited a habeas corpus petition pointing out ‘there is nothing in the record before us to indicate that defendant sought to procure a certificate of probable cause or that he informed counsel that he wished to attack on appeal the validity of his guilty plea.” (96 Cal.App.3d at p. 909.) Pinon in effect told counsel how to plead the habeas corpus petition. Another illustration is People v. Ballard, supra, 174 Cal.App.3d 982, where the court in dismissing the appeal because of the failure to comply with section 1237.5 frankly stated that its “refusal to discuss the merits of defendant’s appeal may precipitate a collateral attack on his conviction and further expenditure of this court’s resources to consider his application for a writ.” (174 Cal.App.3d at pp. 988-989.)

The acknowledgements in these cases only highlight that dismissal of appeals because of the absence of the section 1237.5 certificate/statement is *338 required only where the record itself fails to reflect whether counsel was ineffective in failing to obtain or file it. Here the failure to file the statement following Ivester’s guilty plea where the record before us shows he wants to argue the issues contained in his brief establishes counsel’s deficient performance. Accordingly, absent a need for an evidentiary hearing, it becomes our responsibility consistent with Ivester’s constitutional rights to determine whether that failure was prejudicial. We can make that determination only by reviewing Ivester’s appellate contentions.

Ivester Was Not Prejudiced

I

Ivester first says the court failed to determine the factual basis for his guilty plea under section 1192.5. At the time his plea was entered the following colloquy occurred between the court and Ivester and his wife, a codefendant.

“The Court: Tell me, Miss Fox, what did you do that makes you think you are guilty of these offenses?

“Fox: I let something happen at my house while I was present.

“The Court: What did you let happen?

“Fox: Processes of a lab.

“The Court: A methamphetamine lab?

“Fox: Yes.

“The Court: Did you know methamphetamine was being processed in your residence?

“[Fox]: Yes.”

“The Court: Mr. Ivester, tell me in your words what you did to violate the law.

“Ivester: Well, I had a methamphetamine lab going in the residence.

“The Court: And were children residing in that house?

“Ivester: Yes.

*339 “The Court: And did you know that there was a substantial risk that the methamphetamine lab could blow up, and that the children were placed in jeopardy or danger to them?

“Ivester: No.

“The Court: You didn’t know that it would blow up? What were you using to cook the methamphetamine with?

“Ivester: I knew the children were in danger from the drug.

“The Court: There is also the possibility of blowing up, isn’t there?

“Ivester: I wouldn’t know." (Italics added.)

The evidence contained in the preliminary hearing transcript clearly established that methamphetamine was being manufactured in Ivester’s residence. The only question was-whether Ivester was merely allowing the manufacturing to occur in violation of Health and Safety Code section 11366.5 or whether he was doing the manufacturing himself. We conclude the record establishes the latter fact.

Ivester did not qualify his response to the court saying that he was merely a landlord or a helpful tenant. He had ample opportunity to do so or file a declaration at a later time clarifying what he describes as the ambiguity in his earlier response. If he had not been engaged in the process of manufacturing it would have been easy enough for him to say so either at the trial court or in a declaration accompanying his petition for habeas corpus. In these circumstances we interpret his statement “I had a methamphetamine lab going in the residence” as a sufficient factual basis for his plea.

II

Ivester also claims he did not understand the nature of the offense to which he was pleading. In asking us to accept his argument, he furnishes nothing other than his assertion to this effect and the inference we are asked to draw from his statement to the court that he did not know that manufacturing methamphetamine created a substantial risk of an explosion. This record is insufficient to support his claim on appeal. If Ivester had a legitimate basis for setting aside his plea because he did not understand the *340 elements of the offense, he should have filed a declaration to that effect in a writ petition attacking his counsel’s competence. 9

Ill

Ivester also argues the court prejudicially erred in failing to advise him of all the penal consequences of his guilty plea, i.e., failing to tell him the possibility of the restitution fine required by Government Code section 13967. (See People v. Oberreuter (1988) 204 Cal.App.3d 884, 888 [251 Cal.Rptr. 522].) Ivester concedes however the court told him he could be required to pay a restitution fine but that the court’s failure to tell him the range of that fine was nonetheless prejudicial error.

Even if we assume the court erred, the error was not prejudicial. Ivester must have known he might be ordered to pay a restitution fine in light of his defense counsel’s memorandum filed with the court recommending Ivester pay a restitution fine of $100 under Government Code section 13967. Again, absent anything to the contrary his counsel would not have recommended the payment of a restitution fine if Ivester were unaware he would be obligated to pay it.

Because Ivester’s appellate arguments would not have resulted in a reversal of his conviction we conclude that his counsel’s failure to file the statement required by section 1237.5 was not prejudicial. We therefore dismiss his appeal.

The Habeas Corpus Petition

In his petition seeking extraordinary relief Ivester argues his guilty plea was induced by a misrepresentation that in his appeal, the appellate court would review the denial of his motion to disclose the informant’s identity. Ivester now understands the denial of a motion to disclose the informant’s identity is not reviewable in an appeal following a guilty plea. (See People v. Coleman (1977) 72 Cal.App.3d 287, 293 [139 CaLRptr. 908].)

Ivester’s declaration in support of his petition states his belief that appellate review of the court’s denial of the motion to discover the identity of the *341 confidential informant “was a factor in [his] agreement to plead guilty in this action.” Significantly, although he describes the incorrect advice as a “factor” he does not state that such advice induced him to enter his plea. (See People v. DeVaughn (1977) 18 Cal.3d 889, 896 [135 Cal.Rptr. 786, 558 P.2d 872].)

In real world terms defendants invariably consider a number of factors before entering into a plea bargain. These considerations will necessarily vary depending upon the defendant and the circumstances of the crime. Sometimes a defendant recognizing the strong prosecution case will prefer to plead guilty to one or more of the charged offenses receiving only an agreed upon sentence. In other cases where the defendant has a better chance of prevailing at trial the guilty plea may result in enhanced benefits including a guilty plea to a lesser offense in exchange for a dismissal of the remaining counts.

Here, Ivester’s declaration fails to give any material weight to the alleged erroneous advice he received. Absent his view on this subject we must presume the factor of appellate review had no particular significance to him and was comparable to the weight he gave each of the several other factors which he undoubtedly considered before entering his plea. In such circumstances we conclude that in spite of the erroneous advice he would have pled guilty to obtain the benefits of his plea bargain. We therefore deny his petition.

Disposition

Judgment affirmed. The petition for writ of habeas corpus is denied.

Work, J., concurred. Benke, J., concurred in the result.