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People v. Marlin11/30/2004
dence-gathering process. If successful, the motions result in the exclusion of evidence and bear, therefore, only on the issue of guilt or innocence. (Id. at p. 42, 122 Cal.Rptr.2d 229.) As such, these issues are not cognizable on appeal following a guilty plea.
A year later, we held denial of a motion to obtain discovery of prison records was cognizable on appeal despite defendant's plea of guilty because the records were relevant to a claim that defendant was prosecuted based on his ethnicity, thus denying him equal protection of the law. Since this information could have led to dismissal of the charges against the defendant regardless of his guilt or innocence, the issue was one of constitutional proportion that went to the legality of the proceedings. (People v. Moore (2003) 105 Cal.App.4th 94, 129 Cal.Rptr.2d 84.)
These cases and others addressing the meaning of the phrase "reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings" (People v. Meyer (1986) 183 Cal.App.3d 1150, 1156, 228 Cal.Rptr. 635) delineate the boundaries of the concept underlying that phrase. The cases recognize that "[b]y pleading guilty, a defendant admits the sufficiency of the evidence establishing the crime, and is therefore not entitled to a review on the merits. [Citations.] '[Issues] which merely go to the guilt or innocence of a defendant are "removed from consideration" by entry of the plea.' [Citation.]" (Id. at p. 1157, 228 Cal.Rptr. 635.) The existence of a certificate of probable cause cannot widen the scope of review so that it includes non-cognizable issues. (People v. Hoffard (1995) 10 Cal.4th 1170, 1178, 43 Cal.Rptr.2d 827, 899 P.2d 896.) With these principles in mind, we turn then to the issues defendant asks us to decide in this appeal.
II
The Post Trial Applications and Ineffective Assistance of Counsel
*5 As we have said, defendant first argues the trial court erred when it denied 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. He argues, in part, he was denied the effective assistance of counsel when his attorney refused to investigate and present that defense.
The portion of defendant's argument that asserts contributory negligence was a defense to the charge of second degree murder of a fetus bears directly on the question of defendant's guilt or innocence of that charge. By admitting the charge, defendant waived his right to assert defenses to it. Under the circumstances, defendant's first claim on appeal does not go to the legality of the proceedings within the meaning of section 1237.5 and is not cognizable in this court.
Defendant includes in his argument a claim he received ineffective assistance of counsel for counsel's failure to investigate and present a defense of contributory negligence. Under some circumstances, ineffective assistance of counsel can be a constitutional question going to the legality of the proceedings. (See In re Brown (1973) 9 Cal.3d 679, 682, 108 Cal.Rptr. 801, 511 P.2d 1153.) Even so, we doubt defendant's claim of ineffective assistance of counsel goes to the legality of the proceedings under the circumstances presently before us. Defendant's claim is premised on the thought his attorney failed to investigate and present a particular defense to the charge to which he eventually pleaded no contest. The record reflects, however, that defendant had discussed and urged upon his attorney a defense along these lines prior to the time of the plea. He accepted the plea bargain and entered his plea knowing his attorney would not assert the defense on his behalf. By thereafter admitting the offense and waiving defenses to the charge, defendant necessarily waived
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