Opinion
NOT TO BE PUBLISHED
Superior Court County Ct. No. BA296428 of Los Angeles, Anita H. Dymant, Judge
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, David Zarmi, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Daniel Childress appeals from the judgment following his no contest plea to first degree burglary (Pen. Code, §§ 459, 460), and admission that he had one prior strike conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and three prior serious felonies within the meaning of section 667, subdivision (a)(1). Pursuant to a negotiated plea, he was sentenced to 27 years in state prison. Childress contends that he received ineffective assistance of counsel when his trial attorney failed to obtain a certificate of probable cause to perfect an appeal of his sentence. We dismiss the appeal.
All statutory references are to the Penal Code unless otherwise stated.
The facts are taken from the preliminary hearing transcript.
Childress entered a store which also served as the living quarters of proprietor Bruce Baker. Baker saw Childress inside the building and called 911. Childress walked around the premises, and then got into Baker's car where he was apprehended by the police. Childress had taken three computers, a wallet and a camera from the premises.
Childress was charged with first degree burglary and grand theft of an automobile (§ 487, subd. (d)(1)), and it was alleged that he had suffered four prior strike convictions, and three prior serious felonies. In a plea bargain, he pleaded no contest to the burglary and admitted one prior strike and three prior serious felonies. The auto theft charge was dismissed. The trial court sentenced Childress to 27 years in state prison, consisting of the six year upper term for burglary, doubled under the Three Strikes law, and three, 5-year enhancements for the prior serious felonies.
After his plea and before sentencing, Childress obtained new appointed counsel and moved to withdraw his plea. The trial court denied the motion. Thereafter, Childress, acting in propria persona, filed an appeal without requesting or obtaining a certificate of probable cause.
The sole ground for Childress's motion to withdraw his plea was that he unwittingly admitted a five-year enhancement for a juvenile adjudication that did not qualify as a serious felony. Therefore, at most his sentence would have been reduced from 27 to 22 years and, if allowed to withdraw his plea, Childress would be subject to a possible sentence after trial of 35 years to life if convicted of both charged offenses.
DISCUSSION
Childress contends that his counsel provided ineffective assistance of counsel by failing to obtain or assist him in obtaining the certificate of probable cause necessary to perfect an appeal of the judgment. We disagree.
As Childress concedes, a certificate of probable cause was required to perfect his appeal. "When a defendant has pleaded guilty . . . to a criminal charge, the defendant may not appeal the judgment of conviction on issues 'going to the legality of the proceedings' unless, within 60 days of rendition of the judgment, he or she files with the trial court a written statement executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds for appeal and, within 20 days after that filing, the trial court executes and files a certificate of probable cause for appeal." (In re Chavez (2003) 30 Cal.4th 643, 646, quoting § 1237.5.) All issues going to the validity of a plea require compliance with section 1237.5. (People v. Panizzon (1996) 13 Cal.4th 68, 76.) Acertificate is required to pursue an appeal regarding the denial of a motion to withdraw plea, because such a challenge is in substance an attack on the validity of the plea. (In re Chavez, supra, at p. 651.)
Childress seeks to avoid the consequences of his failure to request or obtain a certificate by contending that his trial counsel was obligated to assure that a certificate was obtained and his failure to do so constituted ineffective assistance of counsel. We acknowledge that the Sixth Amendment right to effective assistance of counsel can be violated by counsel's failure to perfect an appeal. (Roe v. Flores-Ortega (2000) 528 U.S. 470, 476-477.) Under some circumstances, trial attorneys have a duty to consult with the defendant about the possibility of an appeal and file a notice of appeal. (§ 1240.1; People v. Scott (1998) 64 Cal.App.4th 550, 563-564.) The assertion of ineffective assistance, however, cannot be used to circumvent the certificate requirements of section 1237.5.
Our Supreme Court has addressed attempts to avoid the consequences of failure to comply with certificate requirements and expressly and unequivocally held that section 1237.5 must be strictly construed. (People v. Mendez (1999) 19 Cal.4th 1084, 1089.) The Supreme Court instructed the courts of appeal to abandon the practice of considering the merits of an appeal which does not comply with certificate requirements based on extraordinary circumstances or the benefits of avoiding a petition for writ of habeas corpus. (Id., at pp. 1097-1099; see also People v. Panizzon, supra, 13 Cal.4th at p. 89, fn. 15.)
Childress argues that we should ignore the instructions set forth in Mendez and consider his ineffective assistance of counsel claim because the court did so in the case of People v. Ivester (1991) 235 Cal.App.3d 328.Although Mendez does not specifically disapprove or criticize Ivester, Ivester adopted the approach expressly rejected by Mendez. In Ivester, the court noted that some courts strictly interpret section 1237.5 while others were willing to reach the merits of a claim despite failure to comply with certificate requirements. (Id., at pp. 335-336.) By expressly opting for the latter approach, Ivester is inconsistent with the reasoning of Mendez.
In addition, the facts of the instant case are distinguishable from Ivester. In Ivester, the court concluded that ineffective assistance by counsel in failing to comply with certificate requirements was readily apparent from the appellate record. (People v. Ivester, supra, 235 Cal.App.3d at pp. 337-338.) An ineffective assistance of counsel claim can be made on direct appeal when counsel's deficient performance is clear from the record or there could be no satisfactory explanation for counsel's actions. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; People v. Pope (1979) 23 Cal.3d 412, 426.)
Here, deficient performance by counsel is not readily apparent from the appellate record. Arguably, there could be no satisfactory explanation for an attorney to file a notice of appeal without requesting a certificate of probable cause when such a certificate is required. But, the record indicates defendant filed the notice of appeal "in propria persona," and is otherwise silent on the entire matter. There is nothing in the record indicating that Childress requested assistance from his counsel, or that counsel failed to offer assistance with or without a request. Childress cannot and does not assert that his trial counsel failed to confer with him regarding the certificate of probable cause, or failed to advise him that a certificate of probable cause would be required, or that Childress himself was unaware of the certificate requirement. It is inappropriate for an appellate court to speculate about counsel's performance when the record on appeal does not illuminate the basis for the attorney's challenged acts or omissions. (People v. Silvey (1997) 58 Cal.App.4th 1320, 1329.)
Faced with a silent record, Childress claims "it is reasonable to infer" that counsel did not properly advise him regarding an appeal, and that the trial court's statement that he should seek counsel's advice required counsel to personally obtain a certificate of probable cause. We see nothing in the record that requires this court to make any inference regarding the communications between attorney and client, or for us to construe an advisement by the court as an order that counsel take certain action. In essence, the record shows that a required certificate of probable cause was not obtained, but sheds no light on the reason for that inaction. To consider an ineffective assistance claim under these circumstances would allow an appellant to circumvent section 1237.5 on direct appeal in virtually every case after a guilty or no contest plea and thereby effectively nullify the statute.
The appeal is dismissed.
We concur: GILBERT, P.J., YEGAN, J.