P. v. Perez 3/7/07 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C051800

Case Date: 06/13/2007

Preview:Filed 3/7/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, Plaintiff and Respondent, v. GABRIEL PEREZ, Defendant and Appellant. C051800 (Super. Ct. No. 04F09167)

APPEAL from a judgment of the Superior Court of Sacramento County, Allen H. Sumner, Judge. Affirmed. Patricia L. Watkins, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, J. Robert Jibson and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.

This case demonstrates why it is important for the Judicial Council of California to be careful and to pay attention to detail when it promulgates or amends rules of court. In amending a rule

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regarding the filing in the trial court of a statement of reasonable grounds for appeal following a plea of guilty or nolo contendere in a criminal case, the Judicial Council deleted the rule's express time limit for compliance. Apparently it believed that continuing

to include the deadline in the amended rule was unnecessary because other rules, although not directly on point, can be interpreted to compel compliance with the time limit. Unfortunately, the deletion,

which itself was unnecessary, created an ambiguity that we now must sort out. Penal Code section 1237.5, subdivision (a) provides that when a defendant in a criminal proceeding pleads guilty or nolo contendere and then chooses to appeal, the defendant must in some instances file in the superior court a written statement under penalty of perjury "showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings." We will refer to this (Further

statement as a statement of reasonable grounds for appeal. section references are to the Penal Code.)

For years, former rule 31(d) of the California Rules of Court required such a defendant to file the written statement of reasonable grounds for appeal "within 60 days after the judgment is rendered." As we will explain, by amending this rule to, among other things, delete its express time limit for compliance, the Judicial Council did not intend to abrogate the 60-day deadline, a requirement that remains elsewhere in the rules of court. Nevertheless, for reasons that follow, we conclude that a Court of Appeal may grant a motion for the "constructive filing" in the superior court of a late statement of reasonable grounds for appeal, 2

provided the defendant makes a showing of good cause for that relief. In this case, Gabriel Perez (defendant) has filed such a motion. However, because his proposed statement of reasonable grounds for appeal is designed to raise an issue that is "`clearly frivolous,'" we will deny the motion (see In re Brown (1973) 9 Cal.3d 679, 683, fn. 5), thereby precluding him from raising the issue on appeal. We also reject defendant's claim that the trial court violated his right to have a jury determine that facts upon which the court relied to impose the upper term for his crime. The contention fails

because the court cited defendant's many serious prior convictions as a basis, standing alone, for the upper term. The United States

Supreme Court has emphasized that this aggravating factor need not be submitted to a jury before a trial court can use it to impose a greater term. Because one valid aggravating factor was sufficient

to expose defendant to the upper term, the court's reliance on other factors was harmless. Thus, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND Defendant was charged with inflicting corporal injury on the mother of his child, resulting in a traumatic condition, and with various enhancements and prior felony conviction allegations. At trial, after the first day of the jury selection process, defense counsel reported that defendant said he was having visual hallucinations--he was "seeing aliens." "I'm seeing like they have four eyes. Defendant explained,

They would have another The following morning,

face on the side of their face like here."

defense counsel informed the trial court that although she was having no difficulty communicating with defendant, she believed 3

that because he had reported seeing aliens, it was counsel's duty to ask the court to declare a doubt regarding defendant's mental competence to stand trial on the criminal charges. The trial court questioned defendant extensively about his ability to understand the nature of the proceedings and to assist defense counsel. Defendant said he was "doing okay," explaining

he believed the hallucinations he experienced the day before were due to the stress of the proceedings. In response to questioning,

he said he knew they had been picking a jury and he had understood the answers given by the prospective jurors. He accurately described

the charges against him and said he was able to talk with his attorney, and he accurately described the roles of his counsel, the prosecutor, the jury, and the trial judge. Stating it had no doubt that defendant was mentally competent to stand trial, the court declined to order a competency hearing. It emphasized that defendant understood the nature and purpose of the proceedings, his status in relation to the proceedings, and the roles of the participants in the trial proceedings, and that he was able to assist his counsel in conducting a defense. It based its

decision not only on defendant's responses to the court's questions, but also on the court's observations of defendant's conversations with his attorney and with escort officers during breaks. That same day, after the jury was selected but prior to the examination of witnesses, defense counsel and the prosecutor told the court that they had reached a plea agreement as to some of the charges. Defendant then pled no contest to inflicting corporal

injury on the mother of his child, resulting in a traumatic condition 4

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