Friday, October 26, 2018
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Court of Appeal:
Error in Accepting Plea After Doubt Raised As to Competency Can’t Be Reviewed
Says Judge’s Denial of Certificate of Probable Cause Requires Dismissal of Appeal Despite Due Process Violation
By a MetNews Staff Writer
The Court of Appeal for this district yesterday dismissed the appeal by a man who pled guilty to a felony assault, holding that although the judge acted in excess of jurisdiction by not holding a competency hearing after the issue of the defendant’s mental health was raised, the defect could not be considered absent a certificate of probable cause.
Writing for Div. Four, Justice Audrey Collins said:
“This case presents a challenging question: Where the parties agree there was a prejudicial error below, and the trial court acted in excess of its jurisdiction by entering judgment, must this court nonetheless dismiss the appeal because the defendant has not obtained a certificate of probable cause required by Penal Code section 1237.5?”
That section provides:
“No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, 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.”
Error Conceded
The Office of Attorney General conceded that Los Angeles Superior Court Judge Laura Priver erred in accepting a negotiated guilty plea after another judge had declared doubt as to defendant John Firestone-Kelly’s competency. The judge suspended all proceedings pursuant to Penal Code §1368(c).
“Once the trial court has declared a doubt as to a defendant’s competency and suspended proceedings, the trial court is required to hold a competency hearing; this requirement may not be waived,” Collins wrote. “Any further proceedings, other than a competency hearing, are in excess of the court’s jurisdiction.”
Despite the error, the Attorney General’s Office argued, the conviction was voidable rather than being void, and the absence of a certificate of probable cause precluded review. The defendant maintained that in light of the clear violation of his due-process rights, no certificate was needed.
Conflict Noted
The case, Collins said, “Thus, this case presents a conflict.” She quoted the California Supreme Court’s 1999 decision in People v. Welch as saying:
“[W]here...a full competence hearing is required but the trial court fails to hold one, the judgment must be reversed.”
The jurist continued:
“On the other hand, section 1237.5 dictates that a challenge to the validity of a plea cannot be addressed without a certificate of probable cause, requiring the appeal to be dismissed. We find that section 1237.5, and the case law interpreting it, leave no room for exceptions to the certificate requirement. The appeal is therefore dismissed.”
She went on to note:
“The Attorney General correctly points out that California authority universally holds that in the absence of a certificate of probable cause, the validity of a guilty or no contest plea cannot be challenged.”
Firestone-Kelly, acting in pro per, had sought a certificate of probable cause, which Priver denied. However, he did not point to the competency issue.
Collins made clear that if such a certificate had been issued, there would be a reversal, declaring:
“Here, the trial court did not follow the procedures required by [Penal Code] sections 1368 and 1369. Although the first court declared a doubt as to defendant’s competence and suspended proceedings pursuant to section 1368, the second trial court never held a hearing as required by section 1369. This was a due process violation and constitutes reversible error.”
Div. One of the First District Court of Appeal pointed out in an April 25 opinion that a defendant who is denied a certificate of probable cause has the remedy of petitioning for a writ of mandate “or, depending on the issue, seeking a writ of habeas corpus.”
A 1984 Third District Court of Appeal opinion said that where a certificate is not obtained, “in rare cases, because of the jurisdictional challenge involved and the inherent and incurable defect in the prosecution, an appellate court may appropriately treat a barred appeal as a petition for writ of habeas corpus.” However, Collins said, “the Supreme Court later criticized such practices” in its 1999 opinion in People v. Mendez.
Firestone-Kelly, 30, has various prior convictions, mostly in Orange County, for such offenses as breach of the peace, trespass, and disorderly conduct.
The present case stemmed from two incidents in 2016: he entered a business, shouting and cursing and threatened to kill a woman he did not know; on the other occasion, he was attempting to punch bystanders, without apparent reason.
The case is People v. Firestone-Kelly, B281436.
Copyright 2018, Metropolitan News Company