P. v. Mashburn

 

 

 

 

 

 

 

 

 

 

Filed 12/12/13  P. v. Mashburn CA1/5

 

 

 

 

 

 

NOT TO BE
PUBLISHED IN OFFICIAL REPORTS

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

 

FIRST APPELLATE
DISTRICT

 

DIVISION FIVE

 

 

 
>

THE PEOPLE,             Plaintiff and Respondent,                         v. BRIAN PRESTON> MASHBURN,             Defendant and Appellant.

A138252               (>Solano> County >Super.> >Ct.>             No. FCR294075)

 

            Defendant
Brian Preston Mashburn pled no contest to felony possession of methamphetamine
(Health & Saf. Code, § 11377, subd. (a)) and the trial court placed
him on formal probation for three years. 
He filed a notice of appeal purporting to challenge the denial of his
Penal Code section 1538.5href="#_ftn1"
name="_ftnref1" title="">[1]
motion to suppress evidence.  Because
appellant waived his right to appeal as part of his plea bargain and because he
did not obtain a certificate of probable cause, this appeal must be dismissed.

Background

            In
December 2012, appellant was charged by information with possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a); count one)
and possession of a device for smoking a controlled substance (>id., § 11364.1, subd. (a); count
two).

            In
January 2013, appellant filed a motion to suppress evidence (§ 1538.5),
which the trial court denied in March. 
Thereafter, appellant pled no contest to count one.  A plea form reflects appellant’s agreement to
plead no contest to count one with a maximum term of three years in jail.  Numbered paragraph 6 of the form is initialed
“BM” and reads, “Even though I will be convicted in this case as a result of my
plea, I have the right to appeal the judgment and rulings of the court.  [¶] I
give up my right of appeal.”  (Boldface
in original.)  Numbered paragraph 13,
also initialed “BM,” reads, “I declare that my attorney has read and explained
this document to me, and I hereby freely and voluntarily, having full knowledge
and understanding of the rights that I am giving up and the possible
consequences which may result from my plea, do hereby request the Court to
accept my new and different plea(s).” 
The plea form was also signed by defense counsel, who averred she read
and explained the document to appellant and was satisfied he understood the
consequences of the plea and made his decision to plead “only after a full
discussion with [her] of the facts and the law of this case.”

            The
trial court accepted appellant’s plea and found that appellant was fully
informed of his rights and that his waivers were knowing, intelligent, and
voluntary.  The court dismissed count two
and a separate criminal case on the prosecutor’s motion, and placed appellant
on three years’ formal probation with imposition of sentence suspended, a
time-served jail term, and Proposition 36 treatment.

            Appellant
filed a notice of appeal based on the denial of his motion to suppress.  The record contains no certificate of
probable cause.

Discussion

            Appellant
contends the trial court erred in denying his motion to suppress.  He also contends he did not knowingly and
intelligently waive his right to appeal and any such waiver did not encompass
his challenge to the denial of the motion to suppress.  Respondent contends the present appeal must
be dismissed because appellant challenges the enforceability of the waiver of
appeal that was part of his plea bargain, and appellant failed to obtain a
certificate of probable cause.  We agree
the appeal must be dismissed.

I.  The
Requirement of a Certificate of Probable Cause

            Under
section 1237.5, a defendant generally may not appeal from a judgment of
conviction following a guilty or no contest plea, unless he files with the
trial court a statement “showing reasonable, constitutional, jurisdictional, or
other grounds going to the legality of the proceedings” (§ 1237.5, subd.
(a)), and the trial court executes and files “a certificate of probable cause
for such appeal with the clerk of the court” (§ 1237.5, subd. (b)).  (See also People
v. Maultsby (2012) 53 Cal.4th 296, 299 (Maultsby);
People v. Cole (2001) 88 Cal.App.4th
850, 859-860 (Cole); Cal. Rules of
Court, rule 8.304(b).)href="#_ftn2"
name="_ftnref2" title="">[2]
 â€œThe purpose of section 1237.5 is
practical and salutary: ‘to discourage and weed out frivolous or vexatious
appeals challenging convictions following guilty and nolo contendere pleas,’
and to do so ‘ “before time and money is spent preparing the record and the
briefs for consideration by the reviewing court.” â€™  [Citation.] 
The requirements of section 1237.5 . . . must be strictly
applied.  [Citation.]  The Supreme Court has disapproved the
practice of applying the rule loosely in order to reach issues whose
consideration would otherwise be precluded. 
[Citation.]”  (>Cole, at p. 860, fn. omitted; see also >Maultsby, at pp. 298-299.)

            The
law recognizes an exception to the section 1237.5 certificate requirement.  This exception, stated in rule 8.304(b)(4), permits
an appeal without a probable cause certificate if the appeal is based on  â€œ[t]he denial of a motion to suppress evidence
under . . . section 1538.5” or “[g]rounds that arose after entry of
the plea and do not affect the plea’s validity.”  (See also Maultsby,
supra, 53 Cal.4th at p. 299; >Cole, supra, 88 Cal.App.4th at p. 860 [citing to former rule 31(d)].)

II.  Application
of the Certificate Requirement in the Present Case

            Although
the notice of appeal in the present case states it is based on denial of appellant’s
section 1538.5 motion to suppress, “ â€˜In determining whether section
1237.5 applies to a challenge of a sentence imposed after a plea of guilty or
no contest, courts must look to the substance of the appeal: “the crucial issue
is what the defendant is challenging, not the time or manner in which the
challenge is made.”  [Citation.]  Hence, the critical inquiry is whether a
challenge to the sentence is in substance
a challenge to the validity of the plea, thus rendering the appeal subject to
the requirements of section 1237.5.  [Citation.]’
 [Citation.]”  (People
v. Buttram (2003) 30 Cal.4th 773, 781-782 (Buttram); see also People v.
Panizzon (1996) 13 Cal.4th 68, 76 (Panizzon
).)

            In
Panizzon, supra, 13 Cal.4th 68, the defendant agreed to a plea bargain that
called for him to receive a specified sentence and the prosecution agreed to
dismiss several charges.  (>Id. at p. 73.)  After the defendant was sentenced to the negotiated
term, he appealed without first obtaining a certificate of probable cause,
contending the sentence violated the federal and state prohibitions against
cruel and unusual punishment.  (>Id. at p. 74.)  The Supreme Court concluded that, since the
defendant was “in fact challenging the very sentence to which he agreed as part
of the plea,” the challenge “attacks an integral part of the plea [and] is, in
substance, a challenge to the validity of the plea, which requires compliance
with the probable cause certificate requirements of section 1237.5.”  (Panizzon,
at p. 73; see also id. at p. 78 [“by
contesting the constitutionality of the very sentence he negotiated as part of
the plea bargain, [the] defendant is, in substance, attacking the validity of
the plea”].)  The Supreme Court dismissed
the appeal because the defendant did not obtain a certificate of probable
cause.  (Id. at pp. 89-90.)

            In
contrast, in Buttram, >supra, 30 Cal.4th 773, the Supreme Court
considered a situation where the defendant pled guilty to felony drug charges
in return for an agreed maximum sentence. 
(Id. at p. 776.)  The defendant then appealed the trial court’s
denial of diversion and imposition of the maximum term.  (Ibid.)
 The Supreme Court held the defendant was
not required to obtain a certificate
of probable cause because, “absent contrary provisions in the plea agreement
itself, a certificate of probable cause is not required to challenge the
exercise of individualized sentencing discretion within an agreed maximum
sentence.  Such an agreement, by its
nature, contemplates that the court will choose from among a range of
permissible sentences within the maximum, and that abuses of this discretionary
sentencing authority will be reviewable on appeal, as they would otherwise be.”
 (Id.
at pp. 790-791.)

            >Buttram is helpful in the present case
because the Supreme Court expressly noted that the defendant did not, in
pleading guilty, waive his right to appeal as to sentencing.  (Buttram,
supra, 30 Cal.4th at pp. 777-778,
787.)  Justice Baxter, who authored >Buttram, wrote in a separate concurring
opinion:  â€œA prime reason why we conclude
here that defendant Buttram may take his appeal without a certificate, and that
the Court of Appeal must address it on the merits, is that Buttram’s plea is> silent on the appealability of the
trial court’s sentencing choice.  [¶] Yet
it is well settled that a plea bargain may include a waiver of the right to
appeal.”  (Id. at p. 791.)  If the plea bargain
had included an express waiver of appeal, “an attempt to appeal the sentence
notwithstanding the waiver would necessarily be an attack on an express term,
and thus on the validity, of the
plea.  [Citation.]  A certificate
of probable cause would therefore be necessary to make the appeal
‘operative,’ and in the absence of a certificate, the superior court clerk
would not be put to the time and expense of preparing a record on appeal.  [Citation.] 
If a record were nonetheless prepared and transmitted, the Court of
Appeal could still dismiss the appeal for lack of a certificate, without having
to address its merits.”  (>Id. at p. 793.)  Finally, in language directly applicable to
the present case, Justice Baxter pointed out that “An attempt to appeal the >enforceability of the >appellate waiver itself (for example, on
grounds that it was not knowing, voluntary, and intelligent, or had been
induced by counsel’s ineffective assistance) would not succeed in circumventing
the certificate requirement.  This is because, however important and
meritorious such a challenge might be, it too would manifestly constitute an >attack on the plea’s validity, thus
requiring a certificate in any event.”  (>Ibid.)

            Appellant
contends Panizzon is inapposite
because that case did not involve an appeal from denial of a motion to
suppress, which is authorized under section 1538.5, subdivision (m).  However, under the reasoning of >Panizzon and Justice Baxter’s
concurrence in Buttram, >supra, 30 Cal.4th 773, the substance of
the appeal in the present case is a challenge to the validity of the waiver of
the right to appeal in the plea bargain and, thus, the plea itself.  (Id.
at p. 793.)  Appellant’s challenge to the
denial of his motion to suppress may only be heard if the waiver of the right
to appeal is unenforceable, which is an issue regarding which appellant was
obligated to obtain a certificate of probable cause.  (Ibid.)

Disposition

            The appeal
is dismissed.

 

 

 

                                                                                                                                                           

                                                                                    SIMONS,
J.

 

 

 

We concur.

 

 

 

                                                                       

JONES, P.J.

 

 

 

                                                                       

BRUINIERS, J.