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People v. Marlin11/30/2004
ctical decisions in [defendant's] case." The trial judge also said he found no grounds for relieving defendant's attorney as counsel or for allowing defendant to withdraw his plea. The trial court confirmed defendant's attorney was not moving to withdraw the plea.
The parties returned to the courtroom and proceeded with sentencing.
On February 3, 2003, the parties returned to court to correct a clerical error in the sentencing. During the course of this hearing, the trial court again noted defendant's attorney had been retained and, if the court were to construe the earlier discussion in chambers as a request for time to hire a new attorney, the trial court would have denied the request as untimely.
DISCUSSION
I
The Scope of the Appeal
At its essence, defendant's appeal depends on three arguments. Defendant says (1) it was error for the trial court to deny his request to withdraw his plea in order to engage an attorney to look into a defense of contributory negligence on the part of the victim (embedding therein a claim that he suffered from ineffective assistance of counsel); (2) the trial court erred in failing to establish a sufficient factual basis for his plea; and (3) his right to due process of law was violated by California's statutory scheme that fails to establish the crime of manslaughter of a fetus. In part, we must determine which of these arguments is cognizable on appeal given defendant's no contest plea.
After sentencing, defendant filed a request for a certificate of probable cause stating that "Penal Code Section 187 (2d degree) is unconstitutionally vague as to its language 'Killing a Fetus' without a definition of a living fetus; and constitutes a denial of equal protection in that Penal Code Section 191.5 (Vehicular Manslaughter) is not available, a lesser included crime, for jury consideration since a fetus is not a human being, within its definition, but would be had the victim been a human being. Stated simply, how does one kill a fetus unless it is alive, and if it is alive, it should be a human being within the definition of Penal Code section 191.5 (Vehicular Manslaughter)." The trial court issued an order finding "probable cause for defendant's appeal exists" and defendant's appeal was "operable." The trial court did not detail the constitutional, jurisdictional or other issues that, in its view, bore on the legality of the proceedings.
*4 Section 1237.5 provides: "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of ... 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."
In People v. Hunter (2002) 100 Cal.App.4th 37, 122 Cal.Rptr.2d 229, we held the defendant's appeal from the trial court's denial of his motion for discovery relating to an informant who provided information that supported a search warrant was not cognizable on appeal after a plea of guilty, despite the fact the trial court issued a certificate of probable cause. We came to that conclusion because the question of the identity of the informant did not go to the legality of the proceedings, but went instead to the question of defendant's guilt or innocence. We observed the "common thread" in cases asserting error such as the denial of discovery, the voluntariness of extra-judicial statements, the fairness of a pretrial line-up, and a trial court's refusal to disclose the identity of an informant is that each challenges the legality of the evi
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