Does a certificate of probable cause need to be issued when an appeal is taken from the denial of a motion to set aside the judgment?

2 As no certificate of probable cause is required when an appeal is taken from the denial of a motion to set aside the judgment (People v. Kraus (1975) 47 Cal.App.3d 568), we recognize that defendant herein filed the certificate only out of an excess of caution and to forestall any fundamental procedural challenge to her appeal.

3 Our decision that the trial court abused its discretion in denying defendant's motion to set aside her guilty plea rests upon our holding that the plea was neither intelligent nor voluntary when defense counsel had failed to advise defendant of evidence vital to her defense. Therefore it is unnecessary for us to evaluate in depth the extent of the trial court's error in failing to develop on the record the factual basis for the guilty plea. We note, however, the purposes identified by the court in People v. Watts (1977) 67 Cal.App.3d 173, 136 Cal.Rptr. 496 that are accomplished by requiring the trial court to develop the factual basis for the plea on the record, pursuant to section 1192.5, were not served in the instant case. Without such a factual basis, neither this court nor the trial court could satisfy itself that defendant understood the nature of the charges against her, that she understood her acts constituted the offense with which she was charged, and that she committed a crime at least as serious as the one to which she was willing to plead. Thus there is no basis on which this court could have concluded that defendant was not prejudiced by defense counsel's failure to adequately advise her of the evidence available in her defense.