second paragraph rule in California

1988Such a claim requires a certificate of probable cause. ( People v. Ribero (1971) 4 Cal.3d 55, 62-64 [ 92 Cal. Rptr. 692 , 480 P.2d 308 ].) The issue defendant argues on appeal, however, is inadequate reason for denying probation and imposing a prison sentence. [4] Webster's Third New International Dictionary (1961) defines the term "operative" to mean "producing an appropriate or designed effect." (P. 1581.) [5] In 1972, the second paragraph of rule 31(d) was amended to include an additional exception to the requirement of a certificate of probable cause: a search or seizure issue.

1988Such a claim requires a certificate of probable cause. ( People v. Ribero (1971) 4 Cal.3d 55, 62-64 [ 92 Cal. Rptr. 692 , 480 P.2d 308 ].) The issue defendant argues on appeal, however, is inadequate reason for denying probation and imposing a prison sentence. [4] Webster's Third New International Dictionary (1961) defines the term "operative" to mean "producing an appropriate or designed effect." (P. 1581.) [5] In 1972, the second paragraph of rule 31(d) was amended to include an additional exception to the requirement of a certificate of probable cause: a search or seizure issue.

1998As we also recently explained in Panizzon and Jones , the second paragraph of rule 31(d) implements this exception to the general rule by providing as follows: An appeal of this sort may be taken without a statement of grounds by the defendant and a certificate of probable cause by the trial court if it is "based solely upon grounds (1) occurring after entry of the plea which do not challenge its validity or (2) involving a search or seizure, the validity of which was contested pursuant to section 1538.5 of the Penal Code"; it does not become "operative," however, "unless the notice of appeal

1998As we also recently explained in Panizzon and Jones , the second paragraph of rule 31(d) implements this exception to the general rule by providing as follows: An appeal of this sort may be taken without a statement of grounds by the defendant and a certificate of probable cause by the trial court if it is “based solely upon grounds (1) occurring after entry of the plea which do not challenge its validity or (2) involving a search or seizure, the validity of which was contested pursuant to section 1538.5 of the Penal Code”; it does not become “operative,” however, “unless the notice of appeal

2001As noted earlier, CALJIC No. 2.15 has generally been held to be favorable to a defendant by telling the jury possession of stolen property alone is insufficient to permit an inference that defendant is guilty of the charged crime. {Johnson, supra, 6 Cal.4th at p. 37 .) The second paragraph of the instruction tells the jury it “may consider” the categories of additional corroborating evidence listed, but does not require the jury to take them into account. {Mendoza, supra, 24 Cal.4th at p. 177 .) Further, the trial court not only instructed the jury on the required elements of murder, but also

2000(People v. Johnson (1993) 6 Cal.4th 1, 37 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ].) The second paragraph of the instruction said that the jury “may consider” the categories listed, and thus did not require the jury to take them into account.

2008(People v. Monterroso (2004) 34 Cal.4th 743, 766-767 [ 22 Cal.Rptr.3d 1 , 101 P.3d 956 ]; People v. Kimble (1988) 44 Cal.3d 480, 501 [ 244 Cal.Rptr. 148 , 749 P.2d 803 ].) “Thus, unless the evidence supports an inference that the defendant might have intended to murder the victim without having an independent intent to commit the specified felony, there is no duty to include CALJIC No. 8.81.17’s second paragraph. [Citations.]” (Monterroso, at p. 767.) *1300 Here, of course, the second paragraph was presented to the jury as an alternative, not as a clarification of the first paragraph.

2008(People v. Monterroso (2004) 34 Cal.4th 743, 766-767 [ 22 Cal.Rptr.3d 1 , 101 P.3d 956 ]; People v. Kimble (1988) 44 Cal.3d 480, 501 [ 244 Cal.Rptr. 148 , 749 P.2d 803 ].) “Thus, unless the evidence supports an inference that the defendant might have intended to murder the victim without having an independent intent to commit the specified felony, there is no duty to include CALJIC No. 8.81.17’s second paragraph. [Citations.]” (Monterroso, at p. 767.) *1300 Here, of course, the second paragraph was presented to the jury as an alternative, not as a clarification of the first paragraph.

2008(People v. Monterroso (2004) 34 Cal.4th 743, 766-767 [ 22 Cal.Rptr.3d 1 , 101 P.3d 956 ]; People v. Kimble (1988) 44 Cal.3d 480, 501 [ 244 Cal.Rptr. 148 , 749 P.2d 803 ].) “Thus, unless the evidence supports an inference that the defendant might have intended to murder the victim without having an independent intent to commit the specified felony, there is no duty to include CALJIC No. 8.81.17’s second paragraph. [Citations.]” (Monterroso, at p. 767.) *1300 Here, of course, the second paragraph was presented to the jury as an alternative, not as a clarification of the first paragraph.

2008(People v. Monterroso (2004) 34 Cal.4th 743, 766-767 [ 22 Cal.Rptr.3d 1 , 101 P.3d 956 ]; People v. Kimble (1988) 44 Cal.3d 480, 501 [ 244 Cal.Rptr. 148 , 749 P.2d 803 ].) “Thus, unless the evidence supports an inference that the defendant might have intended to murder the victim without having an independent intent to commit the specified felony, there is no duty to include CALJIC No. 8.81.17’s second paragraph. [Citations.]” (Monterroso, at p. 767.) *1300 Here, of course, the second paragraph was presented to the jury as an alternative, not as a clarification of the first paragraph.

2001(Id. at p. 575.) Subsequent decisions cited Ward, perhaps too broadly, for the proposition that “[t]he requirements of section 1237.5 do not apply to errors alleged to have occurred at sentencing proceedings following the entry of the guilty plea.” (People v. Pinon (1979) 96 Cal.App.3d 904, 910 [ 158 Cal.Rptr. 425 ]; see, e.g., People v. Delles (1968) 69 Cal.2d 906, 909-910 [ 73 Cal.Rptr. 389 , 447 P.2d 629 ]; People v. Billetts (1979) 89 Cal.App.3d 302, 307-308 [ 152 Cal.Rptr. 402 ].) Ward’s exception to the reach of section 1237.5 was formalized by the adoption of the second paragraph of rul

2001(Id. at p. 575.) Subsequent decisions cited Ward, perhaps too broadly, for the proposition that “[t]he requirements of section 1237.5 do not apply to errors alleged to have occurred at sentencing proceedings following the entry of the guilty plea.” (People v. Pinon (1979) 96 Cal.App.3d 904, 910 [ 158 Cal.Rptr. 425 ]; see, e.g., People v. Delles (1968) 69 Cal.2d 906, 909-910 [ 73 Cal.Rptr. 389 , 447 P.2d 629 ]; People v. Billetts (1979) 89 Cal.App.3d 302, 307-308 [ 152 Cal.Rptr. 402 ].) Ward’s exception to the reach of section 1237.5 was formalized by the adoption of the second paragraph of rul

2001(Id. at p. 575.) Subsequent decisions cited Ward, perhaps too broadly, for the proposition that “[t]he requirements of section 1237.5 do not apply to errors alleged to have occurred at sentencing proceedings following the entry of the guilty plea.” (People v. Pinon (1979) 96 Cal.App.3d 904, 910 [ 158 Cal.Rptr. 425 ]; see, e.g., People v. Delles (1968) 69 Cal.2d 906, 909-910 [ 73 Cal.Rptr. 389 , 447 P.2d 629 ]; People v. Billetts (1979) 89 Cal.App.3d 302, 307-308 [ 152 Cal.Rptr. 402 ].) Ward’s exception to the reach of section 1237.5 was formalized by the adoption of the second paragraph of rul

2001(Id. at p. 575.) Subsequent decisions cited Ward, perhaps too broadly, for the proposition that “[t]he requirements of section 1237.5 do not apply to errors alleged to have occurred at sentencing proceedings following the entry of the guilty plea.” (People v. Pinon (1979) 96 Cal.App.3d 904, 910 [ 158 Cal.Rptr. 425 ]; see, e.g., People v. Delles (1968) 69 Cal.2d 906, 909-910 [ 73 Cal.Rptr. 389 , 447 P.2d 629 ]; People v. Billetts (1979) 89 Cal.App.3d 302, 307-308 [ 152 Cal.Rptr. 402 ].) Ward’s exception to the reach of section 1237.5 was formalized by the adoption of the second paragraph of rul

2001(See People v. Kaanehe (1977) 19 Cal.3d 1, 8 [ 136 Cal.Rptr. 409 , 559 P.2d 1028 ].) Lower courts continued to struggle with the question whether an attack purporting to be on the sentence alone actually constituted an attack on the validity of the plea.

2001(See People v. Kaanehe (1977) 19 Cal.3d 1, 8 [ 136 Cal.Rptr. 409 , 559 P.2d 1028 ].) Lower courts continued to struggle with the question whether an attack purporting to be on the sentence alone actually constituted an attack on the validity of the plea.

2001(Id. at p. 575.) Subsequent decisions cited Ward, perhaps too broadly, for the proposition that “[t]he requirements of section 1237.5 do not apply to errors alleged to have occurred at sentencing proceedings following the entry of the guilty plea.” (People v. Pinon (1979) 96 Cal.App.3d 904, 910 [ 158 Cal.Rptr. 425 ]; see, e.g., People v. Delles (1968) 69 Cal.2d 906, 909-910 [ 73 Cal.Rptr. 389 , 447 P.2d 629 ]; People v. Billetts (1979) 89 Cal.App.3d 302, 307-308 [ 152 Cal.Rptr. 402 ].) Ward’s exception to the reach of section 1237.5 was formalized by the adoption of the second paragraph of rul

2001(Id. at p. 575.) Subsequent decisions cited Ward, perhaps too broadly, for the proposition that “[t]he requirements of section 1237.5 do not apply to errors alleged to have occurred at sentencing proceedings following the entry of the guilty plea.” (People v. Pinon (1979) 96 Cal.App.3d 904, 910 [ 158 Cal.Rptr. 425 ]; see, e.g., People v. Delles (1968) 69 Cal.2d 906, 909-910 [ 73 Cal.Rptr. 389 , 447 P.2d 629 ]; People v. Billetts (1979) 89 Cal.App.3d 302, 307-308 [ 152 Cal.Rptr. 402 ].) Ward’s exception to the reach of section 1237.5 was formalized by the adoption of the second paragraph of rul

1998It requires an express statement that the appeal is based on one of the two grounds identified in the second paragraph of the rule—in this case, an express statement that the appeal is based solely upon grounds “occurring after entry of the plea which do not challenge its validity.” (Rule 31(d); see also In re Manzy W. (1997) 14 Cal.4th 1199, 1203-1204 [ 60 Cal.Rptr.2d 889 , 930 P.2d 1255 ] [statute requiring juvenile court to “ ‘declare the offense to be a misdemeanor or felony’ ” is “unambiguous” and “requires an explicit declaration”].) There are sound policy reasons for the requirement of

1998It requires an express statement that the appeal is based on one of the two grounds identified in the second paragraph of the rule—in this case, an express statement that the appeal is based solely upon grounds “occurring after entry of the plea which do not challenge its validity.” (Rule 31(d); see also In re Manzy W. (1997) 14 Cal.4th 1199, 1203-1204 [ 60 Cal.Rptr.2d 889 , 930 P.2d 1255 ] [statute requiring juvenile court to “ ‘declare the offense to be a misdemeanor or felony’ ” is “unambiguous” and “requires an explicit declaration”].) There are sound policy reasons for the requirement of

1996“However, ‘[i]n construing the statutory provisions a court is not authorized to insert qualifying provisions not included and may not rewrite the statute to conform to an assumed intention which does not appear from its language.’ ” (Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990) 50 Cal.3d 370, 381 [ 267 Cal.Rptr. 569 , 787 P.2d 976 ], quoting People v. One 1940 Ford V-8 Coupe (1950) 36 Cal.2d 471, 475 [ 224 P.2d 677 ].) We are not convinced by the Attorney General’s contention that “the words of paragraph two appear to be unclear, necessitating resort to the various tools of st

1996“However, ‘[i]n construing the statutory provisions a court is not authorized to insert qualifying provisions not included and may not rewrite the statute to conform to an assumed intention which does not appear from its language.’ ” (Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990) 50 Cal.3d 370, 381 [ 267 Cal.Rptr. 569 , 787 P.2d 976 ], quoting People v. One 1940 Ford V-8 Coupe (1950) 36 Cal.2d 471, 475 [ 224 P.2d 677 ].) We are not convinced by the Attorney General’s contention that “the words of paragraph two appear to be unclear, necessitating resort to the various tools of st

1996“However, ‘[i]n construing the statutory provisions a court is not authorized to insert qualifying provisions not included and may not rewrite the statute to conform to an assumed intention which does not appear from its language.’ ” (Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990) 50 Cal.3d 370, 381 [ 267 Cal.Rptr. 569 , 787 P.2d 976 ], quoting People v. One 1940 Ford V-8 Coupe (1950) 36 Cal.2d 471, 475 [ 224 P.2d 677 ].) We are not convinced by the Attorney General’s contention that “the words of paragraph two appear to be unclear, necessitating resort to the various tools of st

1996“However, ‘[i]n construing the statutory provisions a court is not authorized to insert qualifying provisions not included and may not rewrite the statute to conform to an assumed intention which does not appear from its language.’ ” (Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990) 50 Cal.3d 370, 381 [ 267 Cal.Rptr. 569 , 787 P.2d 976 ], quoting People v. One 1940 Ford V-8 Coupe (1950) 36 Cal.2d 471, 475 [ 224 P.2d 677 ].) We are not convinced by the Attorney General’s contention that “the words of paragraph two appear to be unclear, necessitating resort to the various tools of st

1991The fact the oath was on file and is part of the record in this case distinguishes two cases cited by appellant where there was no such record, In re Damian V. (1988) 197 Cal.App.3d 933 , 938 [ 243 Cal.Rptr. 185 ] and In re Heather P (1988) 203 Cal.App.3d 1214, 1225 [ 250 Cal.Rptr. 468 ].

1991The fact the oath was on file and is part of the record in this case distinguishes two cases cited by appellant where there was no such record, In re Damian V. (1988) 197 Cal.App.3d 933 , 938 [ 243 Cal.Rptr. 185 ] and In re Heather P (1988) 203 Cal.App.3d 1214, 1225 [ 250 Cal.Rptr. 468 ].

1991(See In re Lamonica H. (1990) 220 Cal.App.3d 634, 644 [ 270 Cal.Rptr. 60 ].) Furthermore, the second paragraph of rule 244 expressly allows a previously filed oath and order to be used in a subsequent case in which the parties stipulate to the designated temporary judge.

1991(See In re Lamonica H. (1990) 220 Cal.App.3d 634, 644 [ 270 Cal.Rptr. 60 ].) Furthermore, the second paragraph of rule 244 expressly allows a previously filed oath and order to be used in a subsequent case in which the parties stipulate to the designated temporary judge.

1974The Remaining Suppression Motions. (18) Defendant's pretrial motion to suppress was an appropriate means of challenging the admissibility of McElhinney's identification of Hill and the "wheeling and dealing" statement made by Schnabel during the course of the pat-down search. ( People v. Lawrence (1971) 4 Cal.3d 273, 275, fn. 1 [ 93 Cal. Rptr. 204 , 481 P.2d 212 ]; Saidi-Tabatabai v. Superior Court (1967) 253 Cal. App.2d 257 [ 61 Cal. Rptr. 510 ].) However, such issues may not be raised on this appeal because the defendants failed to seek or obtain the certificate of probable cause required un

1974The Remaining Suppression Motions. (18) Defendant's pretrial motion to suppress was an appropriate means of challenging the admissibility of McElhinney's identification of Hill and the "wheeling and dealing" statement made by Schnabel during the course of the pat-down search. ( People v. Lawrence (1971) 4 Cal.3d 273, 275, fn. 1 [ 93 Cal. Rptr. 204 , 481 P.2d 212 ]; Saidi-Tabatabai v. Superior Court (1967) 253 Cal. App.2d 257 [ 61 Cal. Rptr. 510 ].) However, such issues may not be raised on this appeal because the defendants failed to seek or obtain the certificate of probable cause required un