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Phillips v. Super. Ct.

Phillips v. Super. Ct.
05/10/08



Phillips v. Super. Ct.



Filed 4/30/08 Phillips v. Super. Ct. CA2/3



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS





California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION THREE



LAWRENCE PHILLIPS,



Petitioner,



v.



THE SUPERIOR COURT OF LOS ANGELES COUNTY,



Respondent;



THE PEOPLE,



Real Party in Interest.



No. B201592



(Los Angeles County



Super. Ct. No. SA039108)



ORIGINAL PROCEEDINGS in mandate. Bernard J. Kamins, Judge. Petition denied.



Michael P. Judge, Public Defender, and Leslie B. Ringold, Deputy Public Defender, for Petitioner.



No appearance for Respondent.



Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and James William Bilderback II, Deputy Attorneys General, for Real Party in Interest.



On December 13, 2000, Lawrence Phillips (Phillips) pled no contest to inflicting corporal injury upon a cohabitant and making criminal threats in superior court case No. SA039108. On August 23, 2005, Phillips was charged in superior court case No. BA289039 with seven counts of assault with a deadly weapon or by means of force likely to produce great bodily injury. In an effort to avoid use of the SA039108 convictions to impeach him in case No. BA289039, and to preclude use of the prior conviction of making criminal threats to sentence him pursuant to the Three Strikes law, on April 9, 2007, Phillips filed in case No. SA039108 a motion requesting the trial court to vacate the judgment, to allow him to withdraw his plea or, in the alternative, to issue a writ of error coram nobis. Phillips asserted the plea in case No. SA039108 had been coerced. On April 24, 2007, the trial court denied the motion. Phillips filed a notice of appeal from the trial courts order and sought a certificate of probable cause, which the trial court declined to issue. Phillips now seeks a writ of mandate directing the trial court to issue a certificate of probable cause.



We conclude, since Phillips is appealing, not from a final judgment of conviction following entry of a plea (Pen. Code, 1237.5),[1]but from an order made after judgment affecting his substantial rights ( 1237, subd. (b)), no certificate of probable cause is required. Accordingly, we deny the petition for writ of mandate.



PROCEDURAL HISTORY



1. The plea entered in Superior Court Case No. SA039108.



In May 2000, Phillips was charged by complaint with inflicting corporal injury upon a cohabitant ( 273.5, subd. (a)), making criminal threats ( 422), having a concealed firearm in a vehicle, a misdemeanor ( 12025, subd. (a)(1)), carrying a loaded firearm, a misdemeanor ( 12031, subd. (a)(1)), dissuading a witness from reporting a crime ( 136.1, subd. (b)(1)), vandalism, a misdemeanor ( 594, subd. (a)), and false imprisonment by violence ( 236). Bail was set at $130,000 and, on or about June 21, 2000, bail bond No. CSU-00258712 was executed for Phillipss release.



Following a preliminary hearing, Phillips was held to answer to the charges and an information was filed on June 27, 2000. After a number of continuances, the matter was set for trial on December 12, 2000. However, neither Phillips nor his privately retained counsel appeared on that date. As a result, Phillips bail was forfeited and a bench warrant was issued for his arrest.



Phillips had believed that he was to appear on December 12, 2000. However, his counsel, during a telephone conversation held on December 10 or 11, had advised him that December 12 was not the date set for trial to begin. According to counsel, Phillips was to appear on December 18, 2000. Phillips learned of the error when a friend contacted him and informed him that ESPN News was reporting that, because Phillips had failed to appear, a warrant had been issued for his arrest. Phillips, who was living in Las Vegas, Nevada, where he was training for the XFL Football League, then returned to Los Angeles and surrendered to the court on December 13. Phillipss counsel arrived at the courthouse a short time later.



At the December 13, 2000, proceedings, the trial court noted that December 12 had been designated as the trial date, zero of ten for trial. [The trial court] was open [and] ready, if the case could have started. The trial court continued, What happens, he didnt show up for trial, not for some motions or other matters; and I you know, I know the case. I know what day I set it. The problem when you dont show up for trial, it starts the 60 days over again. It is a way to delay your case. Just dont show up. Your case ends up starting from scratch again. The trial court indicated that, unless the case was dispose[d] of, the matter would go back to day zero of 60, trial would be delayed and Phillips would have to start from the beginning by posting bail.



Following discussion off the record between counsel for Phillips and the prosecutor, it was determined Phillips would plead guilty to the first two counts: inflicting corporal injury upon a cohabitant and making criminal threats. In exchange for his plea, Phillips would be granted probation on the condition he serve 180 days in county jail, the time of service to begin in April 2001 to enable Phillips to continue training with the XFL Football League. With regard to the agreement, the trial court stated, The Court would normally, after a plea, never put a case over [for] four months for actual sentencing. There are some extenuating circumstances over the vigorous objection of the prosecutor [sic], so I will make her unhappy, and I am sure Mr. Phillips isnt too happy. I must be doing it fairly. The trial court then advised Phillips of his right to a jury or court trial, his right to confront and cross-examine the witnesses against him, and his privilege against self-incrimination. Phillips indicated that he understood and agreed to waive the rights.



The trial court informed Phillips that one of the charges to which he was pleading guilty, making criminal threats in violation of section 422, amounted to a serious or violent felony within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Accordingly, Phillipss plea to the offense would subject him to the terms of that law should he become involved in another criminal matter. The trial court explained, You know, baseball, three strikes, you are out. Third strike, you could get life in prison. It is really up to you, if you get in any more troubles or problems with the law. It is in your court now, whether or not you violate the law again. You wont have to violate the one strike if you dont get in trouble again. [] If you do, what happens with the one strike, if you get another felony, any penalty you get has to be prison. It has to be doubled. If it is two years, it would have to be four years. It would have to be at 80 percent time, so the major effect of taking the strike, strike one, is that any future penalty is doubled.



After the trial court informed Phillips of further consequences of his plea, including the maximum penalty which could be imposed should he violate probation and various fines he would be required to pay, Phillips pled no contest to inflicting corporal injury upon a cohabitant and making criminal threats. Counsel joined in the pleas pursuant to People v. West, indicating he believed it was in Phillipss best interest[] at [the] time to accept the plea. The trial court did not ask Phillips whether he was freely and voluntarily entering the plea and did not find that there was a factual basis for the plea. ( 1192.5.)[2] After taking the plea, the trial court commented, If I sentence him now, we wont have to worry about any bail issue. He will be on probation. He doesnt have to worry about going to a bondsman again. He is on probation to me. [] I will stay the [jail] time to April. I have agreed to do that. I will stay the beginning of anger management [classes]. The trial court then sentenced Phillips to three years formal probation, one condition of which was to serve 180 days in county jail beginning on April 26, 2001.



Phillips surrendered to the court and was taken into custody on the morning of April 26, 2001. Following service of his time in custody, Phillips violated the terms of his probation on a number of occasions. Probation was revoked, then reinstated, a number of times.



2. Superior Court Case No. BA289039.



On August 23, 2005, a complaint was filed against Phillips in superior court case No. BA289039. On March 15, 2006, an information was filed charging Phillips with seven counts of assault with a deadly weapon or by means of force likely to produce great bodily injury ( 245, subd. (a)(1)). It was further alleged pursuant to sections 667, subdivisions (b)-(i) and 1170.12, subdivisions (a)-(d), the Three Strikes law, that Phillips previously had been convicted of making criminal threats in case No. SA039108.



3. The motion to withdraw the plea, vacate the judgment and for a
writ of error coram nobis in case No. SA039108.



a. The motion.



On April 9, 2007, Phillips, who was then being represented by counsel from the Public Defender Department, made a motion to withdraw his plea, vacate the judgment or, in the alternative, for a writ of error coram nobis in case No. SA039108. Counsel asserted Phillipss plea in that matter had not been knowing, intelligent or voluntary because it was entered as a result of unlawful coercion and in violation of section 1192.5. Further, defense counsel had not been provided with certain statements made by the victim of the crimes which . . . would have been reasonably likely to have materially [a]ffected the outcome in [the] case.



Counsel first noted the trial court had stated that, should the victim in case No. SA039108 fail to appear for trial, as she had for the three prior proceedings, the prosecution could simply rely on her preliminary hearing testimony. Counsel asserted this statement by the trial court created the erroneous impression that the prosecution automatically had the right to use that evidence against Phillips were he to take the matter to trial.



Counsel next argued the trial courts statement that, should Phillips wish to be released pending trial, he would be required to  start from the beginning by [again] posting bail[,]  was coercive. According to counsel, Phillips did not have the financial resources to again post bail. Counsel asserted, Mr. Phillips knew only too well that it would be impossible for him to post bail again, as the [c]ourt made crystal clear he would be required to do if he wanted to fight the case and not remain in custody. Counsel submitted that the record regarding when the original bond was ultimately posted in [case SA039108] . . . clearly confirm[s] Mr. Phillips position. Mr. Phillips was arrested in this case on May 27, 2000. Bail had originally been set at $630,000. On June 1, 200[0], bail was reduced to $130,000. . . . The preliminary hearing was conducted on June 13, 2000, with [Phillips] still in custody. [] [Phillips] was held to answer to counts 1, 2, 3, [4,] 5, 6, and 7 and arraignment was set for June 27, 2000 . . . . According to documents counsel obtained from Aladdin Bail Bonds and from the court file, the bond written on behalf of Mr. Phillips, Bond No. CSU-00268712, was executed on June 21, 2000 and then filed with the Court on June 28, 2000. . . .  A premium of $13,000 in cash was required for this bond. . . .  [T]his requisite $13,000 in cash was provided on June 21, 2000 by a payment of $6,500 from Mitch Frankel, President of Impact Sports, and a second payment of $6,500 provided by [a friend of Phillipss,] Daphne D. Clayton . . . .



b. The hearing.



A hearing was held on the motion on April 9, 10, 23 and 24, 2007. At that proceeding, Mitchell Frankel (Frankel), the president of Impact Sports and Entertainment Management Company, testified that his company had in the past represented Phillips with regard to his career in football. In June of 2000, Frankel was contacted by one of Phillipss relatives regarding the posting of a bail bond so that Phillips could be released from custody pending resolution of a criminal matter he was involved in. It was Frankels understanding that neither Phillips nor members of his family had the financial resources to post the bond. In December of 2000, Phillipss financial situation had not improved. According to Frankel, Phillips was in a bad financial situation at that time. He probably had very little or no money, and given his past and what he had earned over the years prior, we were very privy to that. So my understanding of his situation, he was trying to play ball, get back to playing ball to make some money to live and go on with his life.



Eric Bates (Bates) testified that he had acted as Phillipss counsel for purposes of the proceedings held from June to December of 2000. It was Batess recollection that the proceedings held on December 13, 2000, the day Phillips entered his plea, were more pressured than previous court appearances had been. On December 13, Bates was upset that [his] client had to do something that he and [Bates] felt was not necessary to be done at the time[;] i.e., enter a plea of no contest to two of the felony charges, including one strike. Bates indicated that Phillips was there in that situation of it being after his scheduled court date because of [his (Batess)] miscalendaring. [] . . . [] . . . [I]t wasnt a situation that Mr. Phillips created.



Bates was of the opinion that the atmosphere in the courtroom on December 13, 2000 was the most pressured, coercive situation [he had] ever been in. Bates continued, [T]he problem was here this was a situation that was going forward in a negative way for Mr. Phillips because of his attorney and not because of him. I did not believe the court truly appreciated that and required us to resolve the case right then and there one way or another. Bates explained that he had attempted to inform the court that the mistake regarding the date had been his, not Phillipss. Bates stated, I was trying to let the court know that it was not a situation where Mr. Phillips was trying to ignore his appearance in court. That he did more than most of my clients would have ever done once they found out a problem had occurred. That on his own he came down from out of state . . . . [] So, in my mind, he did everything he should have . . . .  It was my fault for him not being here on his scheduled court date, and I was shocked that it was not being received [by the trial court]. Bates was aware of Phillipss financial situation. Although he had initially agreed to represent Phillips for a fee, when Bates discovered Phillips did not have the money to pay him, he continued to represent Phillips without pay because he felt it was the right thing to do.



From the trial courts comments, Bates understood that Phillips would be remanded and the matter would be set for trial sometime in February of 2001 unless the parties could resolve the case that day. Should the matter not be resolved, Phillips, who did not have the resources to again post bond, would be remanded and would lose the job with the XFL Football League. During the proceedings, Phillips was clearly upset, agitated, angry, confused [and] very, very animated. Finally, Bates indicated that, prior to the December 13, 2000 proceedings, he and the prosecutor had engaged in negotiations regarding a plea agreement. Bates stated that he had been willing to allow Phillips to plead to one of the alleged felonies, as long as it was not a strike.



Phillips testified that, following his arrest in May 2000, he had not had the money to post bail. Phillipss financial situation had not improved by December of 2000 and he, again, did not have sufficient funds to post bail. In December 2000, Phillips was living in Las Vegas, Nevada, and playing football for the Las Vegas Outlaws of the XFL Football League. On December 10 or 11, Phillips contacted his counsel at the time, Bates, to find out what would be occurring at the December 12 hearing. Bates informed Phillips that the court date was not for December 12, but was scheduled for December 18.



When Phillips discovered that he was scheduled to be in court on December 12, he flew from Las Vegas to Los Angeles and reported to the court room on December 13. His counsel, Bates, arrived a short time later. After watching the interaction between Bates and the trial court, Phillips had the feeling the proceedings were not going the way . . . [counsel had] planned. Phillips understood that, unless the case was resolved within the next several minutes, he was to be remanded into custody. Phillips was upset because he was unable to again post bond and, were he to be remanded, he would lose his job with the XFL League.



At the time he entered the plea, Phillips did not know what the legal requirements were for convictions of making criminal threats and infliction of corporal injury on a spouse or cohabitant. Phillips felt nervous and pressured at having to make a decision regarding whether to enter a plea to the offenses after such short notice. When asked whether the fact that his bail had been forfeited and [he was] faced with going into custody for two months versus being released to go right then and there . . . back to Las Vegas to play football was . . . a factor in the decision that [he] made[,] Phillips responded, Yes. It was the whole decision.



At proceedings held on April 24, 2007, the trial court indicated it wished the parties to address the possible belated turning over to the defense a report from the alleged victim saying that . . . she wanted to renege or drop the charges. The court noted that the victim had said,  Everything I said at the prelim[,] that was all true, but, you know, I dont want to prosecute him and he did ask me to leave.  The victim apparently believed that if she had left when Phillips asked her to, the entire altercation would have been avoided. The trial court stated it wished to hear argument regarding whether the material was simply superfluous or was exculpatory and should have been turned over to the defense pursuant to Brady v. Maryland (1963) 373 U.S. 83 (Brady). The court stated, Almost every single domestic violence case I get and I get a lot of them . . . , 90 percent of the victims want to renege so its the usual rather than the exception. So it may or may not be Brady material at all.



Counsel for Phillips asserted that, because the prosecution had failed to provide defense counsel with a statement by the victim in which the victim was acknowledging that she was not completely truthful at the prelim, [defense counsel] would have [had] no way to [] assess either the victims testimony or her testimony at the preliminary hearing, should that have been read into evidence at trial. Counsel indicated that the victim had made the statement to the prosecutor on September 21, 2000, a date well before the date of the December 13 plea.[3]



The prosecutor argued that the material that counsel [was] talking about [was] not exculpatory according to Brady [and was] not material that would have led to a different result should it have been divulged to the defense or if the court had known about it. The prosecutor continued, As the court has said, its not uncommon for victims in cases just like this one to basically have some reservations about coming forward to testify . . . .  What did not happen in the case, . . . is a recantation of the victim of what happened. Shes . . . saying to the court that everything I said in the preliminary hearing and everything that youve seen in the police report was, in fact, true. Those things did happen. My only reservation is about my feelings towards Mr. Phillips . . . .



The trial court determined the victims statement did not amount to exculpatory Brady material. In addition, the trial court expressed concern that, although the victims statement was made in 2000, no one had made a motion to set aside the plea at that time. The court stated, What [Phillips has] done is wait until hes had 45 court appearances. I counted them[,] dealing with probation violations and other matters, to make 45 appearances to then make a motion to set aside the plea that he made in December of 2000.



The trial court denied Phillipss motion to vacate or withdraw his plea and declined to issue a writ of error coram nobis. Although the court indicated it was a close[] case,[4]it found Phillipss plea had been knowingly and intelligently made. The court commented: [T]he real issue is whether the defendant faced enough coercion because of the financial situation and job situation to enter his plea without being . . . mentally free at the time, without any reservation. When you enter a plea it has to be knowingly and intelligently made. Thats the standard . . . .  So was it knowingly? Yes. Was it intelligently made? Luckily, I heard this defendant finally and I felt he was highly intelligent. I was quite pleasantly surprised by his ability to grasp every question [and] make a response. You could tell hes a college graduate or [at] least that level. So I felt that he knowingly and intelligently made a plea.



4. The notice of appeal and request for a certificate of probable cause.



On June 25, 2007, counsel for Phillips filed a notice of appeal from the trial courts April 24, 2007 order. The notice reads: This appeal is based upon the courts order after judgement affecting defendants substantial rights, to wit, the order of the [trial court] denying defendants Motion to Vacate Judgment, Petition for Writ of Error Coram Nobis and Motion to Withdraw Plea. A motion to set aside a judgment of conviction is considered a part of the criminal case and may be appealable by the defendant as an order made after judgment, affecting the substantial rights of the party. [Citation.] No certificate of probable cause is necessary. (The appeal is from the denial of a motion to set aside a judgment. The only statutory requirement for a certificate of probable cause is in Penal Code section 1237.5 which refers only to appeals from a judgment of conviction. [Citation.])



Also on June 25, 2007, counsel for Phillips filed a Notice of Appeal and Request for Certificate of Probable Cause. Although counsel indicated she did not believe that a Certificate of Probable Cause [was] necessary to pursue an appeal in this case[,] . . . because the appeal . . . follows defendants entry of a plea of no contest on December 13, 2000, and defendants Motion to Vacate Judgment, Petition for Writ of Error Coram Nobis and Motion to Withdraw [the] Plea concern and attack the constitutional and statutory validity of that plea, out of an abundance of caution and in order to preserve all issues for review, defendant is hereby also filing this Notice of Appeal pursuant to Penal Code Section 1237.5 and is requesting that the court issue a Certificate of Probable Cause.



On June 27, 2007, the trial court summarily denied Phillipss request for a certificate of probable cause.



5. The petition for writ of mandate.



Following the trial courts denial of his request, on August 27, 2007, Phillips filed in this court a petition for writ of mandate asking this court to direct the trial court to vacate its order denying his request for a certificate of probable cause and to instead issue such a certificate. (See Lara v. Superior Court (1982) 133 Cal.App.3d 436, 438 [A petition for writ of mandate is the proper vehicle for challenging the denial of a certificate of probable cause.].) This court summarily denied the petition on September 19, 2007.



Phillipss counsel filed a petition for review in the California Supreme Court on October 4, 2007. The Supreme Court granted review and transferred the matter to this court with directions to issue an alternative writ requiring respondent to show cause, when the matter is ordered on calendar, why a certificate of probable cause, if required, should not issue for the appeal in People v. Phillips, B200624.[5] Accordingly, this court directed [the parties] to SHOW CAUSE before this court . . . why a writ of mandate should or should not issue.



THE ISSUE



Is Phillips required to obtain a certificate of probable cause to appeal from the trial courts order denying his motion for a writ of error coram nobis and to vacate or withdraw his December 2000 plea and, if so, did the trial court err in denying his request for such a certificate?



DISCUSSION



1. Rules regarding appealable judgments and orders.



 [A]n order is not appealable unless declared to be so by the Constitution or by statute. [Citations.] [Citation.] Stated simply, a criminal appeal by the defendant may be taken only from a final judgment of conviction [citations] or from any order made after judgment, affecting the substantial rights of the party [citations]. (People v. Gallardo (2000) 77 Cal.App.4th 971, 980.)



Section 1237 provides in pertinent part: An appeal may be taken by the defendant: [] (a) From a final judgment of conviction except as provided in Section 1237.1 and Section 1237.5. A sentence [or] an order granting probation . . . shall be deemed to be a final judgment within the meaning of this section. . . .  [] (b) From any order made after judgment, affecting the substantial rights of the party. Section 1237.5 provides in relevant part: No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . . 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. [] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.



California Rules of Court, rules 8.304 and 8.308 are applicable. Rule 8.304 provides in relevant part: (a) Notice of appeal [] (1) To appeal from a judgment or an appealable order of the superior court in a felony caseother than a judgment imposing a sentence of deaththe defendant or the People must file a notice of appeal in that superior court. To appeal after a plea of guilty or nolo contendere or after an admission of probation violation, the defendant must also comply with (b). [] . . . [] (b) Appeal after plea of guilty or nolo contendere or after admission of probation violation [] (1) Except as provided in (4), [which pertains to denial of a motion to suppress evidence under section 1538.5 or grounds that arose after entry of the plea,] to appeal from a superior court judgment after a plea of guilty or nolo contendere or after an admission of probation violation, the defendant must file in that superior court with the notice of appeal required by (a)the statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause. [] (2) Within 20 days after the defendant files a statement under (1), the superior court must sign and file either a certificate of probable cause or an order denying the certificate.



California Rules of Court, rule 8.308. provides in relevant part: (a) Normal time [] Except as provided in (b)[, which pertains to cross appeals,] or as otherwise provided by law, a notice of appeal and any statement required by Penal Code section 1237.5 must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. Except as provided in rule 8.66, [which pertains to times of public emergency,] no court may extend the time to file a notice of appeal.



2. People v. Chew.



In People v. Chew (1971) 16 Cal.App.3d 254 (Chew), the defendant entered a plea of guilty to possession of a narcotic in 1965. Upon petition by the district attorney, Chew was committed to the California Rehabilitation Center. After being released, then returned to the Center on a number of occasions, in 1970 the trial court sentenced Chew to state prison based on his 1965 plea. Chew did not make a motion in the trial court at any time for leave to withdraw the guilty plea entered in 1965 and on direct appeal from the judgment entered in 1970, Chew did not challenge the validity of the 1965 plea; his sole claim of error . . . [was] that the trial court did not properly advise and arraign him prior to pronouncing judgment in 1970. (Id. at p. 256.) However, while his appeal was pending, Chew filed in the appellate court a motion for a writ error coram nobis in which he unmistakably attacked the validity of the 1965 plea upon grounds that he had a valid defense to the original charge but could not make it known due to his inability to speak English adequately and, generally, that he was falsely induced to enter the plea by reason of ignorance and misunderstanding on his part and misrepresentations made to him by counsel. (Id. at pp. 256-257.)



The appellate court determined that, since Chew had not obtained a certificate of probable cause as required by section 1237.5, the court was precluded from considering Chews ancillary coram nobis attack on the plea. Relying on statements made in People v. Ribero (1971) 4 Cal.3d 55, 61, 63-64, the Chew court indicated that  [i]f a defendant challenges the validity of his [guilty] plea by way of a motion to withdraw the plea, he cannot avoid the requirements of section 1237.5 by labeling the denial of the motion as an error in a proceeding subsequent to the plea [citation] and, more pertinent here, that  . . . since . . . [defendant] . . . is challenging the validity of his guilty plea, he is required to comply with section 1237.5. (Chew, supra, 16 Cal.App.3d at p. 257.) The court continued, As we interpret the first-quoted statement, it means that a defendant convicted upon a guilty plea cannot challenge its validity, when he has taken an appeal without complying with section 1237.5, by labeling the challenge as a coram nobis point, in this court, while the appeal is pending here; the second-quoted Ribero statement supports this conclusion categorically. As defendant did not comply with section 1237.5 in the present case, he cannot attack his 1965 guilty plea in a coram nobis proceeding following his direct appeal. His coram nobis petition must accordingly be dismissed upon the courts own motion[.] (Chew, at pp. 257-258.)



3. People v. Kraus.



In filing his initial notice of appeal from the trial courts order denying his motion to vacate or withdraw his plea and declining to issue a writ of error coram nobis, Phillips relied on the courts decision in People v. Kraus (1975) 47 Cal.App.3d 568 (Kraus). In Kraus, the trial court sentenced the defendant to state prison after he pled guilty to two counts of section 288a. No appeal was taken from that judgment. Approximately one month after sentencing, a new attorney of record filed [in the trial court] on behalf of defendant a written motion to vacate and set aside the judgment of conviction upon a plea of guilty and for a writ of error coram nobis. The notice specified 15 grounds of the motion, the general tenor of which was that (a) defendant was in a disturbed mental state and unable to understand the nature and consequences of his plea, (b) counsel had not represented defendant properly, (c) the probation report and one of the psychiatric reports contained misstatements, and (d) the sentence was unduly severe. (Kraus, at p. 571.) Several days later, Kraus filed a declaration asserting that at the time he pled guilty he  was in a state of mental haze, tension, anxiety and confusion and unable to think clearly or understand the possible effects and consequences of his plea of guilty. The declaration concluded with a request that the court grant his petition as a petition for writ of error coram nobis, and permit him to withdraw his guilty plea. (Id. at p. 572.)



Following a hearing on the matter, the trial court denied the motion. Approximately six weeks later, the defendant timely filed a notice of appeal from the order (1) denying defendants motion to withdraw [his] plea of guilty and to vacate judgment; (2) denying defendants petition for writ of error coram nobis; (3) and denying defendants application for certificate of probable cause.  (Kraus, supra, 47 Cal.3d at p. 572.)



The People made a motion to dismiss the appeal, asserting the order constituted the denial of a motion to withdraw a guilty plea and that there was no requisite certificate of probable cause. The appellate court denied the Peoples motion, indicating that [t]he appeal [was] from the denial of a motion to set aside a judgment. The only statutory requirement for a certificate of probable cause is in Penal Code section 1237.5 which refers only to appeals from a judgment of conviction.  (Kraus, supra, 47 Cal.App.3d at p. 573.) The court commented that, in Krauss case, an appeal from the judgment, if taken and perfected in accordance with the provisions of . . . sections 1237 and 1237.5 . . . would have been an exercise in futility. Appeals are heard and decided upon the record made in the trial court leading up to the order or judgment appealed from. [Citation.] The matters urged by defendant as grounds for setting aside his conviction do not appear in the record made in the trial court prior to judgment. Defendant is relying wholly upon matters raised and submitted to the court after judgment. The record made prior to judgment contains no arguable ground of reversal, as defendants counsel doubtless recognized when he prepared his attack by way of a post-judgment motion, supported by declarations alleging matters not theretofore submitted to the court. (Kraus, at p. 573.)



Noting that  [a] petition for a writ of coram nobis is the equivalent of a motion to vacate a judgment[,]  the court stated that [s]uch a motion to set aside a judgment of conviction is considered a part of the criminal case, and an order of the trial court denying such a motion may be appealable by the defendant under Penal Code section 1237, subdivision 2 . . . , as an order made after judgment, affecting the substantial rights of the party. [Citations.] (Kraus, supra, 47 Cal.App.3d at p. 573.) The court concluded that, [a]lthough the grounds of post-judgment relief by coram nobis or motion to vacate are strictly limited, it is possible for defendant, upon a proper showing, to employ such a motion to attack a judgment based upon a plea of guilty, and, if the ruling is adverse to appeal the order of the trial court. (Id. at p. 574.) Citing People v. Golden (1966) 245 Cal.App.2d 512, the Kraus court pointed out that Penal Code section 1237.5 placed a limitation upon judgment appeals but not on appeals from the denial of coram nobis. . . .  During the . . . years since the enactment of section 1237.5, the Courts of Appeal have entertained a considerable number of appeals from superior court orders denying motions to vacate judgments based upon guilty pleas, without any suggestion that a certificate of probable cause was required. (Kraus, at p. 574., fn. omitted.)



With regard to the courts decision in Chew, the Kraus court indicated the Chew court did not have before it the issue presented [in Krauss case]. (Kraus, supra, 47 Cal.App.3d at p. 575.) According to Kraus, the Chew court held that Penal Code section 1237.5 was not applicable to the appeal because the purpose of the appeal was to challenge proceedings conducted subsequent to the guilty plea. The court also concluded that Chew was not entitled to file an original coram nobis proceeding in the appellate court because he had not sought a certificate of probable cause in the trial court. . . .  The coram nobis proceeding was therefore dismissed. (Kraus, at p. 576.) The Kraus court indicated it need not consider whether the Chew opinion was correct in holding that Penal Code section 1237.5 is a limitation upon the power of an appellate court to entertain an original proceeding to attack a judgment based upon a guilty plea. For [its] purpose it [was] sufficient to point out that the Chew case did not involve an appeal from an order of the superior court denying coram nobis. (Kraus, at p. 576.)



4. Case law since Chew and Kraus.



Since the courts decisions in Chew and Kraus, a number of courts have considered the application of section 1237.5 to cases where the essential attack is on the validity of [the] plea. (People v. Manriquez (1993) 18 Cal.App.4th 1167, 1170.) For example, in Manriquez, the defendant entered a guilty plea, filed a notice of appeal and sought a certificate of probable cause. When the trial court denied his request for a certificate, Manriquez, concurrently with the filing of his opening brief on appeal, sought from the appellate court a writ of mandamus directing the trial court to issue a certificate of probable cause. In its discussion of section 1237.5, the Manriquez court stated that, [a]lthough the requirements of the statute do not generally bar review of proceedings occurring subsequent to the plea (e.g., an attack on sentencing . . . ), a defendant may not avoid its effect by strategic maneuverings. Thus, where his essential attack is on the validity of his plea, he is subject to section 1237.5 even if he raises the question after the plea, by the vehicle of a motion to withdraw. (Ibid.; see also People v. Castelan (1995) 32 Cal.App.4th 1185, 1187 [Because defendants essential attack is on the validity of his plea, he is subject to . . . section 1237.5 . . . . ]; People v. Cotton (1991) 230 Cal.App.3d 1072, 1079 [  If a defendant challenges the validity of his plea by way of a motion to withdraw the plea, he cannot avoid the requirement of . . . section 1237.5 by labeling the denial of the motion as an error in a proceeding subsequent to the plea.  ]; People v. Arwood (1985) 165 Cal.App.3d 167, 172 [ In determining the applicability of section 1237.5, the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made. . . .  If a defendant challenges the validity of his plea by way of a motion to withdraw the plea, he cannot avoid the requirements of section 1237.5 . . .  ].)



In People v. Mendez (1999) 19 Cal.4th 1084, 1088, the court concluded that [a] defendant who has pleaded guilty or nolo contendere to a charge in the superior court, and who seeks to take an appeal from a judgment of conviction entered thereon, may not obtain review of so-called certificate issues, that is, questions going to the legality of the proceedings, including the validity of his plea, unless he has complied with section 1237.5 of the Penal Code and the first paragraph of [former] rule 31(d)[[6]] of the California Rules of Courtwhich require him to file in the superior court a statement of certificate grounds as an intended notice of appeal within 60 days after rendition of judgment, and to obtain from the superior court a certificate of probable cause for the appeal within 20 days after filing of the statement and, hence, within a maximum of 80 days after rendition of judgment. (Fns. omitted.) Moreover, the Mendez court determined the provisions of section 1237.5 should be applied in a strict manner. (Mendez, at p. 1098.) The court stated that [i]n enacting section 1237.5, the Legislature evidently sought to promote judicial economy in the appellate system as a whole, for it established a mechanism that did not invite consideration of the peculiar facts of the individual appeal. The provision lays down a condition precedent to the taking of an appeal within its scope. [Citation.] It is a general legislative command to defendants. [Citation.] It is not an authorization for ad hoc dispensations from such a command by [the] courts. [Citation.] Indeed, it effectively precludes dispensations of this sort, which are squarely contrary to its terms [citations]. (Mendez, at p. 1098.) The court concluded that a defendant may not obtain review of certificate issues unless he has complied with section 1237.5 and [former] rule 31(d), first paragraph, fully, and, specifically, in a timely fashionthat is to say, unless he has done what they require, how they require, and when they require. Plainly, he has not complied with them fully unless he has complied with them in a timely fashion. For, as indicated their demands extend beyond what and how to when. If he has complied only substantially, he has not complied sufficiently; and if he has not complied sufficiently, he has not complied at all. [Citation.] (Mendez, at p. 1099, italics in original; see In re Chavez (2003) 30 Cal.4th 643, 651 [In an appeal raising so-called certificate issuesthe certificate of probable cause must be obtained regardless of other procedural challenges being made].)



There are, however, exceptions to the general rule that one may not circumvent the requirements of section 1237.5 by challenging the validity of a plea by way of a motion to vacate or petition for writ of error coram nobis. In People v. Gallardo, supra, 77 Cal.App.4th 971, the court first determined that [a] ruling denying a motion to vacate judgment would qualify semantically as an order after judgment affecting substantial rights, but such an order ordinarily is not appealable when the appeal would merely bypass or duplicate appeal from the judgment itself. [Citation.] In such a situation appeal from the judgment is an adequate remedy; allowance of an appeal from the order denying the motion to vacate would virtually give defendant two appeals from the same ruling and, since there is no time limited [sic] within which the motion may be made, would in effect indefinitely extend the time for appeal from the judgment. [Citation.] [] [The court then indicated that] [s]everal exceptions have modified this general prohibition, however, including a narrow exception when the record on appeal would not have shown the error . . . . (Id. at pp. 980-981, fn. omitted; see People v. Totari (2002) 28 Cal.4th 876, 882; Kraus, supra, 47 Cal.App.3d at p. 573.)



5. The present case.



We conclude that Phillipss case fits within the narrow exception to the general rule that appeal from the judgment is an adequate remedy. Phillipss case most closely resembles the situation presented in Kraus, with the exception that Kraus sought to vacate his plea several weeks after sentencing while Phillips sought to vacate his plea several years after judgment was entered. However, as in Kraus, no appeal was taken from the judgment. Instead, Phillips filed a motion to vacate or withdraw his plea and a petition for writ of error coram nobis in the trial court and he is now appealing from the trial courts order denying that motion and petition. As in Kraus, appeal from the judgment of conviction would have been an exercise in futility. The record on appeal would not have shown the error from which Phillips is seeking relief. It was only in his motion to vacate the judgment and petition for writ of error coram nobis, and at the hearing held on that motion, that evidence indicating the allegedly coercive nature of the plea proceedings was revealed. (See People v. Gallardo, supra, 77 Cal.App.4th at p. 981 [[T]he record on appeal would not have shown the error . . . .]; Kraus, supra, 47 Cal.App.3d at p. 573 [The record made prior to judgment contain[ed] no arguable ground of reversal . . .].)



Although the issues in Phillipss case involve the validity of his plea, based on the record before us, we conclude his appeal is not from the judgment of conviction which resulted from entry of the plea, but from the trial courts order denying his motion to vacate or withdraw his plea and denying his petition for a writ of error coram nobis. In short, Phillips is appealing from an order made after judgment, affecting the substantial rights of the part[ies]. ( 1237, subd. (b).) He is not appealing from a judgment of conviction upon a plea of guilty or nolo contendere. ( 1237.5.) Accordingly, a certificate of probable cause is not required.



DISPOSITION



The petition for writ of mandate is denied.



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



CROSKEY, Acting P. J.



We concur:



KITCHING, J.



ALDRICH, J.



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[1] All further statutory references are to the Penal Code unless otherwise indicated.



[2] Section 1192.5 requires that the trial court cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.



[3] The victim also wrote a letter to the trial court indicating that, during the argument with Phillips which resulted in the charges alleged in case No. SA039108, she somehow went to the kitchen and picked up a small carving-type knife and threw it at him. She further stated that she did not want Phillips to have to go to jail because he had wanted her to leave. The letter, however, is dated February 12, 2001, almost two months after Phillips entered his plea.



[4] The reporters transcript of the proceeding indicates the trial court stated the case was closed rather than close. However, in her petition, counsel for Phillips indicates she discussed this discrepancy with the district attorney who represented the real party in interest during the proceedings. Counsel states the district attorney agrees and stipulates that at this point in the proceeding the court stated that this was a close case, did not state that this was a closed case and that the transcript of the proceedings which reports the word closed is in error. (Underlining in original.)



[5] Pursuant to Phillipss request, we hereby take judicial notice of the record on appeal filed in this court on September 12, 2007, in case No. B200624. (Evid. Code,  452, subd. (d), & 459.)



[6] California Rules of Court, rules 8.304 and 8.308 have replaced former rule 31(d). As previously stated, the rules set forth various requirements and time limits for the filing of a notice of appeal following entry of a plea of guilty or nolo contendere.





Description On December 13, 2000, Lawrence Phillips (Phillips) pled no contest to inflicting corporal injury upon a cohabitant and making criminal threats in superior court case No. SA039108. On August 23, 2005, Phillips was charged in superior court case No. BA289039 with seven counts of assault with a deadly weapon or by means of force likely to produce great bodily injury. In an effort to avoid use of the SA039108 convictions to impeach him in case No. BA289039, and to preclude use of the prior conviction of making criminal threats to sentence him pursuant to the Three Strikes law, on April 9, 2007, Phillips filed in case No. SA039108 a motion requesting the trial court to vacate the judgment, to allow him to withdraw his plea or, in the alternative, to issue a writ of error coram nobis. Phillips asserted the plea in case No. SA039108 had been coerced. On April 24, 2007, the trial court denied the motion. Phillips filed a notice of appeal from the trial courts order and sought a certificate of probable cause, which the trial court declined to issue. Phillips now seeks a writ of mandate directing the trial court to issue a certificate of probable cause.
Court conclude, since Phillips is appealing, not from a final judgment of conviction following entry of a plea (Pen. Code, 1237.5),[1]but from an order made after judgment affecting his substantial rights ( 1237, subd. (b)), no certificate of probable cause is required. Accordingly, Court deny the petition for writ of mandate.

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