Is there any waiver of rights or waiver of the rights in a post-plea determination of the degree of the crime?

Not expecting to receive an extra year because of his partner's use of the gun (and therefore his own "being armed"), appellant sought a certificate of probable cause, alleging that his attorney had promised him that his plea would result in the arming allegation being dropped. The court denied the certificate because the claim of error did not appear in the record. There being no assertion that the prosecution or court had been involved in such a "promise," the ruling was correct because "purported misrepresentations of defense counsel that a specific sentence will be imposed are insufficient to vitiate a plea entered in reliance thereon; ..." (People v. Reeves (1966) 64 Cal.2d 766, 776 (51 Cal.Rptr. 691, 415 P.2d 35).)

Although the trial court was not presented the waiver of rights argument which we examine, Boykin error (Boykin v. Alabama (1969) 395 U.S. 238, 242-244, 89 S.Ct. 1709, 1711-1712, 23 L.Ed.2d 274) is sometimes reviewed without a 1237.5 certificate of probable cause. (People v. Ribero (1971) 4 Cal.3d 55, 63 (92 Cal.Rptr. 692, 480 P.2d 308).) In the case of a post-plea determination of the degree of the crime it is not necessary to obtain the certificate if the proceedings are challenged. (People v. Ward (1967) 66 Cal.2d 571, 576 (58 Cal.Rptr. 313, 426 P.2d 881).) We therefore have a plea and post-plea combination which permits review without the certificate.

[124 Cal.App.3d 645]