STURNS

*1386 Opinion

Russell Stums entered a plea of nolo contendere to possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a). After sentencing, Stums filed a notice of appeal but did not seek a certificate of probable cause from the trial court. (See Pen. Code, § 1237.5 1 ; Cal. Rules of Court, rule 31(d). 2 )

More than six months after the time for seeking a certificate of probable cause had expired (see rule 31(d)), Stums applied to this court for relief from his default so that he could belatedly seek such a certificate. We initially denied Stums’s motion. Stums moved for reconsideration and we granted his request.

Pursuant to rule 45(e), a “reviewing court for good cause may relieve a party from a default occasioned by any failure to comply with [the California Rules of Court], except the failure to give timely notice of appeal.” Stums urges us to find good cause because he relied on his attorney to perfect the appeal. Under Stums’s notion of good cause, the length of defense counsel’s delay in seeking such relief and the reasons for that delay are not relevant.

We reject Stums’s constmction of the good cause requirement and…

Concurring and Dissenting.—This opinion addresses an application for relief from default for failure to obtain a Penal Code section 1237.5 (hereafter section 1237.5) certificate of probable cause. I agree with the majority that a section 1237.5 certificate is required for appellate review of the issue appellant seeks to raise—the trial court’s denial of his motion to dismiss a prior conviction allegation.

The majority concedes that good cause may excuse a delay in seeking a section 1237.5 certificate. However, the majority holds that good cause is not present here, even though it necessarily concludes that trial counsel rendered ineffective assistance by failing to obtain a certificate. It is clear that the predominant theme of appellant’s defense was an attack on the validity of his prior conviction. Prior to the entry of appellant’s plea his attorney unsuccessfully moved to dismiss the prior conviction allegation. Appellant’s notice of appeal specifically states his intent to appeal from “the imposition of a prior conviction allegation].” Supporting this application for relief is trial counsel’s declaration that he intended to preserve that issue for appellate review and…

Russell Sturns entered a plea of nolo contendere to possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a). After sentencing, Sturns filed a notice of appeal but did not seek a certificate of probable cause from the trial court. (See Pen.Code, § 1237.5 [1] ; Cal. Rules of Court, rule 31(d) [2] .)

More than six months after the time for seeking a certificate of probable cause had expired (see rule 31(d)), Sturns applied to this court for relief from his default so that he could belatedly seek such a certificate. We initially denied Sturns's motion. Sturns moved for reconsideration and we granted his request.

Pursuant to rule 45(e), a "reviewing court for good cause may relieve a party from a default occasioned by any failure to comply with [the California Rules of Court], except the failure to give timely notice of appeal." Sturns urges us to find good cause because he relied on his attorney to perfect the appeal. Under Sturns' notion of good cause, the length of defense counsel's delay in seeking such relief and the reasons for that delay are not relevant.

We reject Sturns' construction of the good cause…