Supreme Court of California Justia
Citation 47 Cal. 4th 668, 218 P.3d 972, 101 Cal. Rptr. 3d 332

People v. Johnson

Filed 11/23/09

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S166894
v.
Ct.App. 6 H031095
TIMOTHY JOHNSON,
Santa Clara County
Defendant and Appellant.
Super. Ct. No. CC619063

We granted review to resolve a conflict among appellate court decisions
addressing the issue whether a defendant who desires to appeal from a criminal
judgment on the ground that counsel rendered ineffective assistance regarding the
defendant‘s request to withdraw a guilty or no contest plea first must obtain a
certificate of probable cause. The Court of Appeal below, concluding that a
certificate of probable cause was required, dismissed defendant‘s appeal. We
affirm the judgment rendered by that court.
I.
On September 13, 2006, pursuant to a plea agreement, defendant Timothy
Johnson, represented by counsel, waived his right to a preliminary hearing and
entered a no contest plea to two counts of forcible oral copulation (Pen. Code
1


§ 288a, subd. (c)(2))1 and one count of lewd conduct committed upon a child
under the age of 14 years (§ 288, subd. (a)). In exchange, the prosecution agreed
to a sentence of 19 years and to the dismissal of five additional counts.
Defendant subsequently indicated that he wished to change his plea and, on
October 12, 2006, the trial court conducted a hearing pursuant to People v. Smith
(1993) 6 Cal.4th 684, 695-696, to determine whether substitute counsel should be
appointed to investigate potential grounds for a motion to withdraw defendant‘s
plea, based upon possible ineffective assistance of counsel.2 At the hearing,
defendant stated that he was not guilty of the charges but that he had entered into
the plea agreement because he was frightened by the prospect of a possible life
term. Defendant reported that the first attorney who represented him in these
proceedings advised him not to enter into the plea agreement. That attorney was
replaced by the public defender, but defendant informed the trial court that he had
not had the opportunity to discuss the case with the deputy public defender
assigned to him until shortly before the time set for the preliminary hearing, when

1
All further statutory references are to the Penal Code unless otherwise
indicated.
2
In People v. Smith, the defendant sought to withdraw his plea and, after that
motion was denied, moved to substitute counsel pursuant to People v. Marsden
(1970) 2 Cal.3d 118 (Marsden). We held that in ruling on a postconviction
Marsden motion, the trial court must apply the same standard it would apply in
ruling on a preconviction Marsden motion: substitute counsel should be appointed
when, ―in the exercise of its discretion, the court finds that the defendant has
shown that a failure to replace the appointed attorney would substantially impair
the right to assistance of counsel [citation], or, stated slightly differently, if the
record shows that the first appointed attorney is not providing adequate
representation or that the defendant and the attorney have become embroiled in
such an irreconcilable conflict that ineffective representation is likely to result
[citation].‖ (People v. Smith, supra, 6 Cal.4th. at p. 696.)
2


counsel told him that it was ―maybe‖ in his best interest to accept the plea
agreement providing for a sentence of 19 years.
The deputy public defender explained to the trial court the circumstances
related to defendant‘s acceptance of the plea agreement. Counsel stated that prior
to the date set for the preliminary hearing, he undertook an assessment of the
evidence. When he met with defendant on the date set for the preliminary hearing,
it was his opinion that the evidence was quite strong and that defendant‘s
maximum exposure was to a sentence of approximately 45 years in prison. After
determining that the 19-year sentence previously offered by the district attorney
still was available but would be withdrawn if the preliminary hearing went
forward, counsel advised defendant of counsel‘s belief that it was in defendant‘s
best interest to accept the offer. According to counsel, defendant stated, ―If that‘s
your opinion, then that‘s what I will do.‖ After hearing the deputy public
defender‘s explanation, the court concluded there was no ―colorable claim‖ of
ineffective assistance of counsel that would warrant removal of counsel, and
ordered that the public defender remain as attorney of record.
The court then asked defendant why he wished to set aside his plea.
Defendant reiterated that he was ―scared into it‖ and stated he was not guilty of the
charges. When the trial court inquired of the district attorney concerning evidence
supporting the charges, the prosecutor referred to the statements of the two alleged
victims and represented that an acquaintance of defendant‘s could testify to
incriminating statements made by defendant regarding one of the alleged victims,
his stepdaughter. Defense counsel made no comment during this discussion and
answered ―no‖ when the court inquired whether he ―want[ed] to say anything
further.‖ The court denied defendant‘s motion to set aside his plea.
On October 27, 2006, defendant was sentenced to the agreed-upon term of
19 years: the upper term of eight years on the count of committing a lewd act
3
upon a child, the upper term of eight years on one count of forcible oral
copulation, and the lower term of three years on the second count of forcible oral
copulation, with all terms to be served consecutively.
Defendant filed a notice of appeal and a request for a certificate of probable
cause. The notice stated that the appeal challenged the validity of the plea. The
request for a certificate of probable cause related that the basis for the appeal was
that ―Mr. Johnson‘s waiver of his fundamental constitutional rights was not made
knowingly, intelligently, or voluntarily. Furthermore, the court abused its
discretion in denying Mr. Johnson‘s motion to withdraw his guilty plea.‖ The trial
court denied the request for a certificate of probable cause and notified defendant
that his notice of appeal was deemed ―not operative.‖ Subsequently, defendant
filed an amended notice of appeal, which stated that the ―appeal is based on the
sentence and other matters occurring after the plea and does not challenge the
validity of the plea.‖
Appellate counsel was appointed and the record was prepared. In the Court
of Appeal, defendant claimed he was deprived of his right to the effective
assistance of counsel at the October 12, 2006, hearing, because counsel made no
attempt to support defendant‘s motion to withdraw his plea. Defendant contended
on appeal that the matter should be remanded for the purpose of affording his
attorney an opportunity to investigate, prepare, and present a motion for
withdrawal of the plea, relying upon People v. Brown (1986) 179 Cal.App. 3d 207,
215-217 (Brown). In Brown, defense counsel refused to present a motion to
withdraw the defendant‘s guilty plea, and the appellate court reversed the
judgment and remanded to permit the defendant, with the assistance of counsel, to
make a motion to withdraw. In that case, however, the appellate court required a
certificate of probable cause, and one was issued. (Id. at p. 210, fn. 1.)
4
In the present matter, the appellate court dismissed defendant‘s appeal,
concluding that a certificate of probable cause was required under section 1237.5.
In doing so, it followed the decision in People v. Emery (2006) 140 Cal.App.4th
560, 565 (Emery), in which the Court of Appeal held that a certificate of probable
cause is a prerequisite to an appeal challenging the trial court‘s denial of a
continuance sought by defense counsel to investigate potential grounds for
withdrawal of the defendant‘s guilty plea. The appellate court in the present
matter attempted to distinguish the decision rendered by another Court of Appeal
in People v. Osorio (1987) 194 Cal.App.3d 183, 188-189 (Osorio), an opinion
with which Emery explicitly disagreed. (Emery, supra, 140 Cal.App.4th at
p. 565.) Osorio held that a certificate of probable cause was not a prerequisite to
an appeal based upon a claim that defense counsel had rendered ineffective
assistance in refusing to file a motion to withdraw the defendant‘s guilty plea.
We granted review in the present case to resolve the conflict between the
decisions in Osorio and Emery.
II.
Section 1237.5 states broadly that ―[n]o 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.‖
(§ 1237.5, italics added.) ―The purpose and effect of section 1237.5 . . . are . . . to
create a mechanism for trial court determination of whether an appeal raises any
nonfrivolous cognizable issue, i.e., any nonfrivolous issue going to the legality of
the proceedings. Before the enactment of section 1237.5, the mere filing of a
5
notice of appeal required preparation of a record and, in many cases, appointment
of counsel; only after expenditure of those resources would an appellate court
determine whether the appeal raised nonfrivolous issues that fell within the narrow
bounds of cognizability. Section 1237.5 was intended to remedy the unnecessary
expenditure of judicial resources by preventing the prosecution of frivolous
appeals challenging convictions on a plea of guilty.‖ (People v. Hoffard (1995) 10
Cal.4th 1170, 1179 (Hoffard).)
―Section 1237.5 does not limit the scope of review of the denial of a motion
to withdraw a plea of guilty when that error is properly before the court on appeal.
It merely sets forth a procedure for precluding frivolous appeals by requiring the
defendant to set forth grounds for appeal and, if he does so, by requiring the trial
court to rule on the issue of probable cause.‖ (People v. Ribero (1971) 4 Cal.3d
55, 62 (Ribero).) The trial court must issue the certificate if the defendant‘s
statement under section 1237.5 presents ―any cognizable issue for appeal which is
not clearly frivolous and vexatious . . . .‖ (People v. Holland (1978) 23 Cal.3d 77,
84.) The defendant‘s statement need not list every potential issue; if the trial court
issues the certificate based on even a single nonfrivolous claim, the defendant may
raise all of his or her claims on appeal — those that require a certificate as well as
those that do not — even if they were not identified in the statement filed with the
trial court. (Hoffard, supra, 10 Cal.4th at pp. 1177-1180.) If the trial court
wrongfully refuses to issue a certificate, the defendant may seek a writ of mandate
from the appellate court. (In re Brown (1973) 9 Cal.3d 679, 683.)
Despite the broad language of section 1237.5 — which, as noted, addresses
any appeal ―from a judgment of conviction upon a plea of guilty or nolo
contendere‖ — we have long recognized two exceptions to its requirement of a
certificate of probable cause. First, a defendant may appeal from a ruling
involving a search and seizure issue without obtaining a certificate, because an
6
appeal from such a ruling explicitly is authorized by section 1538.5
―notwithstanding the fact that the judgment of conviction is predicated upon a plea
of guilty.‖ (§ 1538.5, subd. (m); see People v. Kaanehe (1977) 19 Cal.3d 1, 8.)
Second, a defendant is ―not required to comply with the provisions of section
1237.5 where . . . he is not attempting to challenge the validity of his plea of guilty
but is asserting only that errors occurred in the subsequent adversary hearings
conducted by the trial court for the purpose of determining the degree of the crime
and the penalty to be imposed.‖ (People v. Ward (1967) 66 Cal.2d 571, 574
(Ward).)3
We explained in Ward that ―[i]n spite of the fact that section 1237.5 refers
generally to an appeal ‗from a judgment of conviction upon a plea of guilty‘ it
seems clear that the section was intended to apply only to a situation in which a
defendant claims that his plea of guilty was invalid.‖ (Ward, supra, 66 Cal.2d at
p. 574.) We recognized that historically, even before the enactment of section
1237.5‘s requirement of a certificate of probable cause, limitations had been
placed on the grounds upon which a defendant could attack a guilty plea on
appeal. (Id. at p. 575.) As we observed in Ward, ―When a defendant pleads guilty
to a crime . . . no trial is held on the question of guilt and there are no controverted
issues, since he admits every element of the crime, and the plea necessarily results
in a judgment of conviction.‖ (Ibid.)

3
The requirements of section 1237.5 are implemented by California Rules of
Court, rule 8.304(b), which provides that an appeal from a judgment after a plea of
guilty or nolo contendere may proceed without a certificate if the notice of appeal
states that the appeal is based on the denial of a motion to suppress evidence under
section 1538.5 or on ―[g]rounds that arose after entry of the plea and do not affect
the plea‘s validity.‖ (Cal. Rules of Court, rule 8.304(b)(4)(B).)

7


When a defendant has entered a plea of guilty or no contest, the bases for
an appeal from the resulting conviction are limited and section 1237.5 serves to
prevent frivolous appeals. ―There is no justification, however, for applying the
section to the altogether distinct procedures followed where a defendant asserts
that errors occurred in the hearing held, after his plea was entered, on the degree
of the crime and the penalty to be imposed. So far as we have been able to
determine, the right of an aggrieved defendant to appeal from a court‘s
determination on these issues has never been questioned [citations] albeit the right
to challenge a guilty plea on appeal has always been circumscribed.‖ (Ward,
supra, 66 Cal.2d at p. 575.) ―The primary purpose of [section 1237.5], to prevent
the taking of frivolous appeals based on the asserted invalidity of pleas of guilty,
must not be confused with the entirely separate and settled procedure relating to
the determination of asserted errors occurring in subsequent hearings to ascertain
the degree of a crime and the penalty to be imposed.‖ (Ward, supra, at pp. 576-
577.) 4
California‘s determinate sentencing law provides for a sentencing hearing
in which disputed issues may be litigated. (§ 1170, subd. (b).) Thus, except when
sentence is imposed pursuant to a plea agreement, the potential grounds for claims
of error in sentencing are the same whether the defendant has pleaded guilty or
whether he or she has pleaded not guilty and been found guilty after a trial. In
other words, at least in the absence of a plea agreement affecting the sentence, the
circumstance that a defendant has pleaded guilty to a crime does not signify that

4
Even if the appeal goes forward without a certificate of probable cause,
based upon claims that do not require one, the defendant may not raise additional
claims that do require a certificate. (People v. Mendez (1999) 19 Cal.4th 1084,
1104; People v. Kaanehe, supra, 19 Cal.3d at p. 9.)
8


the appellate issues related to sentencing will be any more circumscribed than they
are in a case in which the defendant has pleaded not guilty. Consequently, the
rationale behind section 1237.5 is inapplicable when an appeal relates only to
sentencing issues.
Even when a defendant purports to challenge only the sentence imposed, a
certificate of probable cause is required if the challenge goes to an aspect of the
sentence to which the defendant agreed as an integral part of a plea agreement.
(See, e.g., People v. Cuevas (2008) 44 Cal.4th 374, 377 [certificate required for
claim that the sentence imposed, which defendant was advised was the maximum
possible sentence for the remaining charges after additional charges were
dismissed pursuant to a plea agreement, violates the multiple punishment
prohibition of section 654]; People v. Shelton (2006) 37 Cal.4th 759, 763
[certificate required for claim that the sentence imposed, whose length equaled the
agreed-upon ―lid,‖ violates the multiple punishment prohibition of section 654];
People v. Panizzon (1996) 13 Cal.4th 68, 73 [certificate required for claim that
imposition of sentence to which defendant agreed pursuant to plea agreement
constituted cruel and unusual punishment].) The rationale for the exception to the
certificate requirement recognized in Ward does not apply in such cases because,
as a consequence of the plea agreement, the validity of an agreed-upon aspect of
the sentence is not in contention at the sentencing hearing. Such an agreed-upon
aspect of the sentence cannot be challenged without undermining the plea
agreement itself. Consequently, an attack upon an integral part of the plea
agreement ―is, in substance, a challenge to the validity of the plea . . . .‖ (People
v. Panizzon, supra, 13 Cal.4th at p. 73.)5

5
On the other hand, if a defendant claims on appeal that the sentence
imposed violated a plea agreement, no certificate of probable cause is required
(footnote continued on next page)
9


A defendant must obtain a certificate of probable cause in order to appeal
from the denial of a motion to withdraw a guilty plea, even though such a motion
involves a proceeding that occurs after the guilty plea. (Ribero, supra, 4 Cal.3d
55.) ―On application of the defendant at any time before judgment . . . [the trial]
court may . . . for a good cause shown, permit the plea of guilty to be withdrawn
and a plea of not guilty substituted.‖ (§ 1018.) ―Mistake, ignorance or any other
factor overcoming the exercise of free judgment is good cause for withdrawal of a
guilty plea.‖ (People v. Cruz (1974) 12 Cal.3d 562, 566.) In Ribero, the
defendant moved to withdraw his plea on the grounds that he was under the
influence of drugs when he entered it and was not fully aware of what he was
doing. The trial court denied the motion, and the defendant attempted to appeal
from the ruling. In Ribero, we rejected the defendant‘s argument that a certificate

(footnote continued from previous page)
even though the result of a successful appeal could be the withdrawal of the
defendant‘s plea. (See People v. Kaanehe, supra, 19 Cal.3d 1, 8 [no certificate
required for the defendant‘s appeal from a trial court‘s denial of his motion to
withdraw plea based upon district attorney‘s violation of a plea agreement that
required the district attorney to refrain from making any sentencing
recommendation, but certificate required for challenges to the alleged failure of
the trial court to warn the defendant of the effect of a guilty plea on his right of
appeal and on the refusal of the trial court to grant a continuance — which ―are
clearly matters occurring before the entry of the plea and affecting the validity of
the plea. . . . The determinative factor is when the claims upon which the motion
was based arose and not when the motion to withdraw was denied‖]; In re Harrell
(1970) 2 Cal.3d 675, 705-706 [section 1237.5 held not to apply where the
defendant claimed on appeal that his motion to withdraw his guilty plea was
improperly denied, the sentence imposed resulted from violation of the plea
agreement, and the defendant had not been provided sufficient time to study the
probation report prior to sentencing].) When the appeal is based upon violation of
the plea agreement at sentencing, it is based upon alleged improprieties in the
sentencing proceedings, and not upon any alleged invalidity of the guilty plea at
the time it was entered.
10


of probable cause was not required because the motion to withdraw the plea took
place in a proceeding conducted subsequent to entry of the guilty plea. Although
Ward, supra, also involved a proceeding subsequent to entry of the plea, the
―determinative factor‖ in that case was ―the substance of the error being
challenged, not the time at which the hearing was conducted.‖ (Ribero, supra, 4
Cal.3d at p. 63.) We concluded that a contrary holding would ―invite such
motions [to withdraw the plea] as a matter of course, and would be wholly
contrary to the purpose of section 1237.5.‖ (Id. at p. 64.)
In the present case, defendant‘s claim that he was denied his right to the
assistance of counsel at the hearing on his motion to withdraw his plea plainly
does not come within the exception to the certificate requirement we previously
have recognized for claims arising from the ―adversary hearings conducted by the
trial court for the purpose of determining the degree of the crime and the penalty
to be imposed.‖ (Ward, supra, 66 Cal.2d at p. 574.) Under Ribero, it is clear that
if defendant‘s claim were that the trial court abused its discretion in denying his
motion to withdraw the plea, a certificate of probable cause would be required.
Defendant contends, however, that a different rule should apply in the
present case, because he does not directly challenge the trial court‘s ruling on his
motion to withdraw the plea; the remedy he seeks in the appellate court is not
withdrawal of the plea but a remand for a new hearing on his motion to withdraw
the plea. Defendant urges us to adopt the rule of Osorio, supra, 194 Cal.App.3d
183. In Osorio, the defendant pleaded guilty to one count charging the sale or
transportation of heroin (Health & Saf. Code, § 11352), in exchange for dismissal
of three additional counts. When the court inquired concerning the factual basis
for the plea, the prosecutor indicated there had been a sale of heroin to undercover
officers, while defense counsel stated the transaction involved transporting and
furnishing drugs, but not a sale. At the sentencing hearing, the court noted that the
11
probation report described a sale and indicated that the defendant was the principal
seller. The defendant objected to the probation report‘s description of the offense
and stated that he wanted to withdraw his plea. The trial court deferred sentencing
to enable the defendant and his counsel to decide whether to file a motion to
withdraw the plea. Counsel subsequently indicated he would not submit a motion,
although the defendant still requested that such a motion be filed. The court then
sentenced the defendant to the upper term. (Osorio, supra, 194 Cal.App.3d at
p. 186.)
On appeal, the defendant in Osorio claimed he was entitled to a remand to
enable his attorney to prepare and present a motion to withdraw the plea. The
Court of Appeal held that a certificate of probable cause was not required. The
appellate court reasoned that in a case in which the motion to withdraw the plea is
based upon events alleged to have occurred before the plea itself was entered —
for example, an allegation that the plea was not knowingly and intelligently
entered — an appeal from a denial of the motion to withdraw ―is tantamount to an
attack on the validity of the plea itself. An appellant must therefore comply with
the requirements of section 1237.5.‖ (Osorio, supra, 194 Cal.App.3d at p. 187.)
―On the other hand, if the motion to withdraw the plea is based upon activities
occurring after the plea, such as an alleged failure to sentence in accordance with a
plea bargain, then no probable cause certificate is required for an appeal from
denial of the order. [Citation.] In the latter circumstances, the appellate court is
not called upon to pass on the validity of the plea itself.‖ (Ibid.) Because the
appeal in Osorio attacked only the failure of counsel to file a motion to withdraw
the plea, the appellate court stated, ―The relief requested does not require that we
pass upon the validity of the plea.‖ (Ibid.) Accordingly, the appellate court
concluded, ―the appeal addresses only the events occurring after the plea and the
requirements of section 1237.5 are not applicable.‖ (Ibid.; see also People v.
12
Makabali (1993) 14 Cal.App.4th 847, 851 [citing Osorio for the proposition that
no certificate is required in order to appeal the issue of trial counsel‘s failure to file
a motion to withdraw a plea as requested by the defendant].)
The Court of Appeal in Emery, supra, 140 Cal.App.4th 560, 565, disagreed
with Osorio. In Emery, the court held that a certificate of probable cause was a
prerequisite to an appeal challenging the trial court‘s denial of a continuance that
had been sought to investigate a potential motion to withdraw the defendant‘s
guilty plea. The court in Emery concluded that the defendant‘s challenge to the
trial court‘s denial of a continuance was ―in substance a challenge to the validity
of the plea.‖ (Emery, 140 Cal.App.4th at p. 562.) Emery criticized Osorio on the
ground that the claim of error in that case ―was dependent upon the validity of the
guilty plea‖ and was, in substance, an attack on the plea itself. (Id. at p. 565.)
We agree with Emery and disapprove People v. Osorio, supra, 194
Cal.App.3d 183. To the extent that Osorio relied upon the circumstance that the
defendant‘s claim was ―based upon activities occurring after the plea‖ (Osorio,
supra, 194 Cal.App.4th at p. 187), that case is inconsistent with Ribero, in which
we concluded that the determinative factor is ―the substance of the error being
challenged, not the time at which the hearing was conducted.‖ (Ribero, supra, 4
Cal.3d at p. 63.) More fundamentally, we disagree with Osorio‘s conclusion that
the applicability of section 1237.5‘s certificate requirement depends upon whether
―[t]he relief requested . . . require[s] that we pass upon the validity of the plea.‖
(Osorio, supra, 194 Cal.App.4th at p. 187.) The rule established in Osorio would
require courts to draw a distinction between appeals that challenge directly the
merits of a trial court‘s ruling on a motion to withdraw the plea (as occurred in
Ribero) and appeals that allege defects in the proceedings involved in the motion
to withdraw the plea (as in the present case, Emery, and Osorio). Under the
rationale of Osorio, appeals of the former type would require a certificate because
13
they could result in an appellate decision requiring that the motion to withdraw the
plea be granted, whereas claims of the latter type would not require a certificate
because they would result only in a remand to the trial court for further
proceedings on the motion to withdraw the plea.
The distinction required by Osorio finds no support in the language of the
statute, which, as noted above, provides broadly that ―[n]o appeal shall be taken
by the defendant from a judgment upon a plea of guilty or nolo contendere‖ in the
absence of a certificate of probable cause. (§ 1237.5, italics added.) The historical
and policy reasons that have caused us to conclude that, despite section 1237.5‘s
broad language, the Legislature did not intend to require a certificate for appeals
arising out of alleged errors in sentencing proceedings, are inapplicable to appeals
based upon alleged defects in the proceedings conducted on a motion to withdraw
a guilty or no contest plea. ―The primary purpose of [section 1237.5 is] to prevent
the taking of frivolous appeals based on the asserted invalidity of pleas of guilty,‖
thereby avoiding the unnecessary expenditure of resources. (Ward, supra, 66
Cal.2d at pp. 576-577.) Whether the appeal seeks a ruling by the appellate court
that the guilty plea was invalid, or merely seeks an order for further proceedings
aimed at obtaining a ruling by the trial court that the plea was invalid, the primary
purpose of section 1237.5 is met by requiring a certificate of probable cause for an
appeal whose purpose is, ultimately, to invalidate a plea of guilty or no contest.
Adoption of the Osorio rule would undermine both section 1237.5‘s
purpose of avoiding the cost of frivolous appeals and our holding in Ribero that an
appeal of a denial of a motion to withdraw a guilty plea requires a certificate of
probable cause. Under the rule set forth in Osario, in any case in which a
defendant‘s motion to withdraw the plea was denied because there was no
nonfrivolous issue, the defendant nevertheless could pursue an appeal without a
certificate as long as the issues were framed so as to request a remand for further
14
proceedings, rather than a reversal of the trial court‘s ruling. As we stated in
Ribero, however, ―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
by labeling the denial of the motion as an error in a proceeding subsequent to the
plea.‖ (Ribero, supra, 4 Cal.3d at pp. 63-64.) Likewise, a defendant should not be
able to avoid the requirements of section 1237.5 and pursue a frivolous appeal by
labeling counsel‘s conduct at the hearing as an error in a proceeding conducted
subsequent to the plea.
Basing the certificate requirement on whether or not the appellate court
must directly address the validity of the defendant‘s plea would complicate the
process for determining whether a certificate is required or warranted, to the
detriment of a defendant‘s right to appeal. Section 1237.5 does not impede a
defendant‘s right to appeal any nonfrivolous issue unless either the defendant errs
in failing to seek a certificate or the trial court errs in refusing to issue one. The
frequency of such errors likely would increase if we were to adopt the rule
proposed by defendant. A defendant seeking to appeal after denial of a motion to
withdraw would have to closely examine the potential appellate issues to
determine whether the appropriate remedy for each would be a remand for further
proceedings or a reversal of the trial court‘s ruling. If the defendant erred in
assessing the appropriate remedy and pursued the appeal without seeking a
certificate, the appeal ultimately would be dismissed. (See People v. Kaanehe,
supra, 19 Cal.3d at p. 9.) If the trial court failed to issue a certificate based upon
its erroneous conclusion that the issues raised by the defendant did not require one,
an appeal could proceed only on the non-certificate issues. On the other hand,
requiring a certificate for all issues related to a motion to withdraw a plea would
reduce the likelihood that the opportunity to appeal might be lost due to erroneous
failures (by the court or by counsel) to correctly determine which issues require a
15
certificate. Furthermore, as noted above, the identification of even one
nonfrivolous issue in the defendant‘s request would warrant the issuance of a
certificate — a circumstance that would permit the defendant to proceed with an
appeal in which all issues could be raised. (See People v. Hoffard, supra, 10
Cal.4th at pp. 1176-1180.)
Finally, the circumstance that the appeal in the present case is based upon
trial counsel‘s alleged refusal to assist defendant in moving to withdraw his plea
does not warrant creation of a new exception to the certificate requirement.
Defendant contends that we should draw a distinction between the type of claim
raised in the present case and in Brown, supra, 179 Cal.App. 3d 207 — that
counsel refused entirely to represent the defendant on the motion to withdraw the
plea — and a claim that counsel who did present such a motion provided
ineffective assistance. Defendant concedes that a certificate is required in the
latter type of case. In that situation, as with most ineffective-assistance-of-counsel
claims, a defendant would have to show not only that counsel‘s performance fell
below an objective standard of reasonableness under prevailing professional
norms, but also would have to show prejudice. (Strickland v. Washington (1984)
466 U.S. 668, 694.) In order to determine whether counsel‘s alleged inadequacy
in presenting the motion was prejudicial, the appellate court would have to address
the merits of the motion to withdraw. Consequently, as defendant concedes, a
certificate would be required.
In contrast, defendant argues, when counsel violates a duty to present the
withdrawal motion on a defendant‘s behalf, a remand is required without regard to
prejudice and the appellate court need not reach the merits of the motion to
withdraw. In Brown, for example, the defendant sought to withdraw his no contest
plea, but counsel informed the trial court that she would not make the motion on
her client‘s behalf, stating that she did not believe there was a legal basis for it.
16
(Brown, supra, 179 Cal.App.3d at p. 211.) The trial court permitted defendant to
state his reasons for wanting to withdraw the plea, and then denied his motion.
The appellate court in Brown concluded that the decision to seek to withdraw a
plea is a personal one that the defendant is entitled to make and that, even if
counsel believes it is not in the client‘s best interest, the attorney must make the
motion if the client insists upon it unless, in counsel‘s opinion, the motion ―is
frivolous or when to do so would compromise accepted ethical standards.‖ (Id. at
p. 216.) The court reversed and remanded for the limited purpose of permitting
the defendant to make a motion to withdraw the plea, with the assistance of
counsel, and did so without addressing whether counsel‘s failure to argue the
motion was prejudicial.
Assuming, without deciding, that the holding of Brown is correct and that
no showing of prejudice is required to support a claim based upon counsel‘s
refusal to present a defendant‘s withdrawal motion, defendant does not explain
why it is inappropriate to require that such a claim be submitted to the trial court in
the first instance for a determination of whether it is frivolous. Defendant
contends that in situations in which counsel does not participate in the motion to
withdraw the plea, the trial court not only is ―deprived of a more informed
discretion in ruling on the motion for withdrawal,‖ but is also ―similarly
disadvantaged when later faced with the decision whether to issue the certificate of
probable cause. . . . [S]uch a procedure obstructs rather than promotes the
principles underlying the certificate requirements, for rather than screening out
only the wholly frivolous appeals, some cases will be weeded out not because they
are devoid of merit but because of the utter lack of advocacy in the proceedings.‖
When, as in the present case, the claim is not that the motion should have been
granted but that there was an ―utter lack of advocacy‖ in the presentation of the
motion, the trial court is not disadvantaged in determining whether that lack of
17
advocacy provides the basis for a nonfrivolous claim on appeal.6 Furthermore, the
trial court need decide only whether the case presents ―any cognizable issue which
is not clearly frivolous and vexatious.‖ (People v. Holland, supra, 23 Cal.3d at
p. 84.) It is not required to resolve the claim on the merits.
Additionally, even in a case in which the defendant seeks to withdraw the
plea and counsel does not assist the defendant in presenting the motion, factual
issues may exist as to whether counsel failed to participate in the motion for some
allegedly invalid reason or instead refused for a valid reason, such as the lack of
nonfrivolous grounds. Generally, if it cannot be determined from the record
whether counsel had a reasonable strategic basis for acting or failing to act in the
manner challenged, a claim of ineffective assistance ―is more appropriately
decided in a habeas corpus proceeding.‖ (People v. Mendoza Tello (1997) 15
Cal.4th 264, 266-267 [claim that trial counsel rendered ineffective assistance in
failing to make a motion to suppress evidence was not suitable for resolution on
appeal, because the record did not show the reasons for counsel‘s failure to do
so].) If all appeals alleging that the defendant was deprived of effective
representation on a motion to withdraw his or her plea were permitted to go
forward without a certificate, many frivolous appeals likely would result.
Requiring the trial court, which is familiar with the record, to determine in the first

6
To the extent it might be argued that it is unreasonable to expect trial
counsel to file a statement under section 1237.5 based upon counsel‘s own
inadequate representation, such concerns do not warrant creating an exception to
the certificate requirement. If the defendant seeks to appeal after a guilty or no
contest plea, trial counsel has the duty to assist the defendant in preparing and
filing the required statement of grounds. (Ribero, supra, 4 Cal.3d at p. 66.) Trial
counsel has options other than alleging his or her own error or incompetence,
however; counsel may either ―file the 1237.5 statement, instruct defendant how to
file it, or secure other counsel for him.‖ (Id. at p. 65.)
18


instance whether a nonfrivolous claim exists serves the purposes of section 1237.5
without interfering with a defendant‘s right to pursue a nonfrivolous appeal.
III.
For the reasons stated above, the decision of the Court of Appeal is
affirmed.
GEORGE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

19



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Johnson
__________________________________________________________________________________

Unpublished Opinion

XXX NP opn. filed 8/13/08 – 6th Dist.
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.

S166894
Date Filed: November 23, 2009
__________________________________________________________________________________

Court:

Superior
County: Santa Clara
Judge: Rodney J. Stafford

__________________________________________________________________________________

Attorneys for Appellant:

Vicki I. Firstman, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A.
Engler, Assistant Attorney General, Laurence K. Sullivan and René A. Chacón, Deputy Attorneys General,
for Plaintiff and Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Vicki I. Firstman
100 N. Winchester Boulevard, Suite 310
Santa Clara, CA 95050
(408) 241-6171

René A. Chacón
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5957


Petition for review after the Court of Appeal dismissed an appeal from a judgment of conviction of criminal offenses. This case presents the following issue: Is a certificate of probable cause a prerequisite to an appeal claiming ineffective assistance of counsel for failure to assist a client in a motion to withdraw a plea?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 11/23/200947 Cal. 4th 668, 218 P.3d 972, 101 Cal. Rptr. 3d 332S166894Review - Criminal Appealsubmitted/opinion due

Parties
1The People (Plaintiff and Respondent)
Represented by Rene A. Chacon
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

2Johnson, Timothy (Defendant and Appellant)
Correctional Training Facility
P.O. Box 686
Soledad, CA 93960

Represented by Vicki I. Firstman
Sixth District Appellate Program
100 N. Winchester Boulevard, Suite 310
Santa Clara, CA


Opinion Authors
OpinionChief Justice Ronald M. George

Dockets
Sep 22 2008Petition for review filed
  Timothy Johnson, appellant by Vicki I. Firstman, counsel
Sep 22 2008Record requested
 
Sep 23 2008Received Court of Appeal record
  one file folder/briefs/transcripts
Nov 19 2008Petition for review granted (criminal case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Moreno, and Corrigan, JJ.
Dec 12 2008Counsel appointment order filed
  Upon request of appellant for appointment of counsel, the Sixth District Appellate Program is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Jan 12 2009Request for extension of time filed
  Appellant, Timothy Johnson, is asking for an additional 30 days (to Feb. 10, 2009 ) to file the opening brief on the merits. by counsel, Vicki Firstman.
Jan 14 2009Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including February 10, 2009.
Feb 10 2009Request for extension of time filed
  for appellant to file the opening brief on the merits, to 3-13-09
Feb 20 2009Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including March 12, 2009. No further extensions of time are contemplated.
Mar 13 2009Opening brief on the merits filed
  Timothy Johnson, appellant - CRC 8.25(b), by Vicki I. Firstman, Counsel
Apr 3 2009Request for extension of time filed
  for respondent to file the answer brief on the merits, to May 13.
Apr 14 2009Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent's answer brief on the merits is extended to and including May 13, 2009.
Apr 23 2009Compensation awarded counsel
  Atty Firstman - Sixth District Appellate Program
May 7 2009Answer brief on the merits filed
Plaintiff and Respondent: The PeopleAttorney: Rene A. Chacon  
May 27 2009Request for extension of time filed
  Appellant request a 30-day extension to and including June 26, 2009 to file appellant's reply brief on the merits.
Jun 1 2009Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's reply brief on the merits is hereby extended to and including June 26, 2009. No further extension of time will be granted.
Jun 29 2009Reply brief filed (case fully briefed)
Plaintiff and Respondent: The PeopleAttorney: Rene A. Chacon   Timothy Johnson, Appellant crc 8.25(b) by Vicki I. Firstman, counsel
Sep 2 2009Case ordered on calendar
  To be argued Tuesday, October 6, 2009, 1:30 p.m., Los Angeles, California.
Oct 6 2009Cause argued and submitted
 
Nov 20 2009Notice of forthcoming opinion posted
  Opinion to be filed Monday, November 23, 2009 @ 10am.

Briefs
Mar 13 2009Opening brief on the merits filed
 
May 7 2009Answer brief on the merits filed
Plaintiff and Respondent: The PeopleAttorney: Rene A. Chacon  
Jun 29 2009Reply brief filed (case fully briefed)
Plaintiff and Respondent: The PeopleAttorney: Rene A. Chacon  
Brief Downloads
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Johnson - People Brief.pdf (126541 bytes) - Plaintiff-Respondent Brief
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OBOTM - Defendant.doc (99840 bytes)
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OBOTM TABLE - Defendant.doc (47104 bytes)
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RBOTM - Defendant.doc (87040 bytes)
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RBOTM TABLE - Defendant.doc (44032 bytes)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 27, 2010
Annotated by ebfua

ISSUE: If a defendant wants to appeal a criminal judgment on the ground that her lawyer gave ineffective assistance with her request to withdraw a guilty or no contest plea, does she have to obtain a certificate of probable cause first?

DEFINITION(S):
- Certificate of probable cause: A court-issued document indicating the court has ruled that an appeal from a criminal judgment is non-frivolous.
- Guilty plea: When a defendant pleads guilty, she admits to every element of the crime. There is no trial on the question of guilt. The plea results in a judgment of conviction.

KEY STATUTE(S)/PRECEDENT(S):
- California Penal Code § 1237.5: A defendant cannot appeal a judgment of conviction after pleading guilty or no contest unless (a) she has filed with the trial court a written statement, executed under oath or penalty of perjury, showing reasonable legal grounds for the appeal, and (b) the trial court has executed and filed a certificate of probable cause for the appeal.
- People v. Emery, 140 Cal.App.4th 560, 565 (2006) (holding that a certificate of probable cause is a prerequisite to an appeal challenging a trial court’s denial of a continuance sought by the defendant to investigate potential grounds for withdrawing a guilty plea)
- People v. Osorio, 194 Cal.App.3d 183, 188-89 (1987) (holding that a certificate of probable cause is not a prerequisite to an appeal based on a claim that defendant counsel rendered ineffective assistance in refusing to file a motion to withdraw a guilty plea)
- People v. Ribero, 4 Cal.3d 55, 62 (1971) (holding that an appeal from a denial of a motion to withdraw a guilty plea requires a certificate of probable cause).

FACTS:
Mr. Johnson was charged with two counts of forcible oral copulation, one count of lewd conduct committed upon a child under 14, and five additional crimes. His lawyer told him that a likely sentence given the evidence and absent a guilty plea would be 45 years in prison. Accepting the guilty plea, on the other hand, would result in the prosecution dropping the five additional counts. The plea would also result in a 19 year sentence. Johnson accepted the plea agreement.

Johnson then moved to withdraw his guilty plea claiming that he was not guilty and that his lawyer “scared” him into the plea.

PROCEDURAL HISTORY:
The trial court heard the prosecution’s evidence and denied Johnson’s motion. Johnson’s lawyer took no action during these proceedings.

Johnson then filed a notice of appeal and a request for a certificate of probable cause. He was forced to amend his notice of appeal. His request for a certificate of probable cause was denied.

On appeal, Johnson claimed that he was deprived of his right to the effective assistance of counsel because his lawyer made no attempt to support his motion to withdraw his guilty plea. The appellate court dismissed the appeal, concluding that a certificate of probable cause was required under California Penal Code § 1237.5. The appellate court followed the opinion of People v. Emery. It attempted to distinguish Emery from People v. Osorio, a case with an opposite holding with which Emery explicitly disagreed.

This court granted review to resolve the conflict between Emery and Osorio. This court would also decide whether to grant Johnson’s request for a remand for a new hearing on his motion to withdraw his guilty plea.

HOLDING: A defendant must first obtain a certificate of probable cause if she wants to appeal a criminal judgment on the ground that her lawyer gave ineffective assistance with her request to withdraw a guilty or no contest plea.

REASONING:
Section 1237.5 is a cost-saving statute that bars frivolous appeals before they consume court time and resources. The statute achieves this by requiring the defendant to state the grounds for her appeal and by requiring the trial court, which is familiar with the record, to determine whether the appeal contains any non-frivolous claims.

There are two exceptions to the requirement of a certificate of probable cause: (1) where a defendant appeals from a ruling involving a search and seizure; and (2) where a defendant is not challenging the validity of her guilty plea, but only asserting that errors occurred in subsequent court hearings regarding the degree of the crime and penalty to be imposed.

Here, while Johnson is not challenging the validity of his guilty plea, but rather his lawyers’ failure to assist in withdrawing that plea, his appeal does not fall under either of these exceptions.

Requiring certification does not interfere with a defendant’s ability to pursue a non-frivolous appeal. The identification of even one non-frivolous issue in an appeal warrants its certification.

Osorio is inconsistent with § 1237.5’s cost-saving purpose and this court’s ruling in Ribero.

RULING: Appellate court ruling, which dismissed Mr. Johnson’s appeal because he did not obtain a certificate of probable cause from the trial court, affirmed.

Annotation by Emmanuel Fua

TAGS: certificate of probable cause, frivolous appeal, ineffective assistance of counsel, non-frivolous appeal, section 1237.5, withdrawing a guilty plea, withdrawing a no contest plea