P. v. Wence CA1/5 — Fear Not Law

Filed 6/24/26 P. v. Wence 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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,
A172745
v.
BRIANNA PEARLETTE WENCE, (San Mateo County Super. Ct. No.
23-SF-017126-C)
Defendant and Appellant.

Brianna Pearlette Wence pled no contest to being an
accessory to a felony (Pen. Code, § 32)1, and, pursuant to a
negotiated disposition, the trial court placed her on formal
probation for two years on the condition that she serve 90 days in
county jail. Wence appeals, challenging only the trial court’s
denial of her motions for developmental disability diversion (§
1001.20 et seq.). The People contend her appeal must be
dismissed because the trial court refused her request for a
certificate of probable cause. We agree and dismiss the appeal.
(See § 1237.5; Cal. Rules of Court, rule 8.304(b).)

BACKGROUND

“The developmental disability diversion program applies in
any case where misdemeanor or most felony charges are brought

1 Undesignated statutory references are to the Penal Code.
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against ‘any person who has been evaluated by a regional center
and who is determined to be a person with a developmental
disability by the regional center, and who therefore is eligible for
its services.’ ([Pen. Code,] § 1001.21, subds. (a), (b).) A
‘ “[d]evelopmental disability” ’ ‘means a disability that originates
before an individual attains 18 years of age, continues, or can be
expected to continue, indefinitely, and constitutes a substantial
disability for that individual.’ ([Pen. Code,] § 1001.20, subd. (a);
Welf. & Inst. Code, § 4512, subd. (a)(1).) ‘ “Substantial disability”
means the existence of significant functional limitations in three
or more of the following areas of major life activity . . . : [¶] (A)
Self-care. [¶] (B) Receptive and expressive language. [¶] (C)
Learning. [¶] (D) Mobility. [¶] (E) Self-direction. [¶] (F) Capacity
for independent living. [¶] (G) Economic self-sufficiency.’ (Welf.
& Inst. Code, § 4512, subd. (l)(1).)” (People v. K.D. (2025) 110
Cal.App.5th 1, 16 (K.D.).)

“Importantly, the trial court has a sua sponte duty to
consult with relevant agencies (the prosecution, regional center,
probation, and defense counsel) to determine whether a
defendant may be diverted. (§ 1001.22, subd. (a).)” (K.D., supra,
110 Cal.App.5th at p. 16.) When the court suspects that a
defendant may have a developmental disability, “and the
defendant consents to the diversion process and to the case being
evaluated for eligibility for regional center services, and waives
their right to a speedy trial, the court shall order the prosecutor,
the probation department, and the regional center to prepare
reports on specified aspects of the defendant’s case.” (§ 1001.22.)

In 2024, the San Mateo County District Attorney charged
Wence and two codefendants, by information, with second degree
robbery (§ 212.5, subd. (c).)

On October 14, 2024, Wence moved for developmental
disability diversion, pursuant to section 1001.22. She supported
2
her motion with copies of individualized education program (IEP)
documents—dated between 2010 and 2014—from when Wence
was in middle school and high school. The trial court heard
argument but reserved its ruling. A few days later, a jury trial
began.

Wence renewed her motion for diversion (while trial
remained ongoing), on October 21, 2024, when the parties
indicated they had reached a potential resolution via plea
bargain. Defense counsel argued that her IEP records “raise a
suspicion that she may have a developmental disability as
defined by the statute.” The prosecutor argued the IEP records
were “stale.”

The trial court denied the motion without prejudice. It
found Wence’s evidence insufficient to trigger a referral for
reports under the diversion statute (Pen. Code, §§ 1001.22,
1001.20, subd. (a); Welf. & Inst. Code, § 4512, subds. (a), (l)(1)).
The court explained: “I did review about 75 to 80 pages of IEP
records. . . . There does appear to be some learning issues that
originates prior to [age] 18. I don’t know . . . -- they are about
nine or ten years old -- if that is enough to say it can continue or
expect to be continued. I’m guessing, based on what I read, I
could expect it to be continued, some of her learning disabilities.
[¶ . . . ¶] But . . . I think, at this point, there is just not enough
information for the Court to refer it to [the regional center] based
on IEP records about a decade old and nothing new.”

Immediately after the court denied diversion, Wence
entered a plea of no contest to being an accessory, in exchange for
a negotiated sentence of two years on felony probation and 90
days in county jail (among other conditions). The robbery charge
was dismissed.

At the sentencing hearing, Wence renewed her request for
the trial court to refer her, under section 1001.22, to the regional
center for developmental disability screening. The trial court
3
denied the motion, agreeing with the prosecutor that it was too
late and observing “[t]here is no new information.” Consistent
with the plea bargain, the court suspended imposition of sentence
and placed Wence on formal probation for two years on the
condition (among others) that she serve 90 days in county jail.

Wence’s trial counsel filed a timely notice of appeal from
the judgment (order of probation). Although Wence indicated
that she was appealing a judgment entered after plea of guilty or
no contest, her counsel did not check any of the boxes indicating
that her appeal was (a) based on sentencing or other post-plea
matters, (b) based on the denial of a motion to suppress, or (c) a
challenge to the validity of his plea. Instead, defense counsel
checked the following box: “Other basis for this appeal” and
wrote that Wence was appealing after “denial of developmental
disability diversion . . . prior to entry of plea.” On the second
page of the notice of appeal, Wence indicated that a certificate of
probable cause was requested and explained that the trial court’s
purportedly erroneous denial of her request for developmental
disability diversion was the grounds for the request. The trial
court denied the request for a certificate of probable cause.

DISCUSSION

Wence insists the trial court erred by declining to refer her
for developmental disability evaluation. We agree with the
People that Wence’s appeal must be dismissed because she did
not obtain a certificate of probable cause.

Because the cognizable bases for an appeal from a
conviction on entry of a guilty or no contest plea are limited (In re
Chavez (2003) 30 Cal.4th 643, 649), “section 1237.5 serves to
prevent frivolous appeals.” (People v. Johnson (2009) 47 Cal.4th
668, 677 (Johnson).) Section 1237.5 provides (in relevant part):
“No appeal shall be taken by the defendant from a judgment of
4
conviction upon a plea of guilty or nolo contendere . . . except
where both of the following are met: [¶] (a) The defendant has
filed with the trial court a written statement, executed under
oath or penalty of perjury showing reasonable constitutional,
jurisdictional, or other grounds going to the legality of the
proceedings. [¶] (b) The trial court has executed and filed a
certificate of probable cause for such appeal with the clerk of the
court.” (Italics added.)

A defendant need not obtain a certificate of probable cause
if the appeal after a guilty or no contest plea is based on grounds
that arose after entry of the plea and that do not affect the plea’s
validity. (Cal. Rules of Court, rule 8.304(b)(2); People v. Mendez
(1999) 19 Cal.4th 1084, 1096 (Mendez); People v. Panizzon (1996)
13 Cal.4th 68, 74 (Panizzon).) When, however, a challenge to the
sentence is, in substance, a challenge to the validity of the plea,
the defendant must obtain a certificate. (Panizzon, at p. 76.)

Despite her assertion that the appeal raises only post-plea
matters that do not affect the validity of the plea, Wence’s
claim—that the trial court’s denial of diversion was erroneous—
necessarily calls into question the legality of the proceedings that
resulted in her plea. (See People v. Padfield (1982) 136
Cal.App.3d 218, 228 (Padfield) [claim of wrongful denial of
pretrial diversion under former section 1001 “implicate[s] ‘other
grounds going to the legality of the proceedings’ ”].) Courts have
held that other diversion schemes require a certificate when a
defendant’s appeal is taken from a judgment of conviction based
on a guilty or no contest plea. (People v. Robinson (2024) 100
Cal.App.5th 133, 135-136 [because a defendant is only eligible for
pretrial mental health diversion until adjudication, an ineffective
assistance claim, based on attorney’s failure to seek diversion,
cannot be raised as a noncertificate “ ‘matter occurring after plea’
”]; People v. Moore (2024) 104 Cal.App.5th 90, 94 (Moore) [same];
People v. Qualkinbush (2022) 79 Cal.App.5th 879, 887-888;

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Padfield, at p. 228 [wrongful denial of diversion claim under
former section 1001 “may be raised on appeal by a certificate of
probable cause after a plea of guilty or nolo contendere”].)

In fact, one of the few published opinions addressing
developmental disability diversion implicitly concluded (albeit
without analysis) that the certificate of probable cause
requirement applies. (See K.D., supra, 110 Cal.App.5th at p. 15,
fn. 3 [“[d]efendant’s amended notice of appeal and receipt of a
certificate of probable cause preserved the issue for appellate
review”].)

Nonetheless, Wence attempts to distinguish the
developmental disability diversion scheme from other diversion
statutes by pointing out section 1001.21, subdivision (a), specifies
that the chapter applies “whenever a case is before any court
upon an accusatory pleading at any stage of the criminal
proceedings, for any person who has been evaluated by a regional
center and who is determined to be a person with a
developmental disability by the regional center, and who
therefore is eligible for its services.” (Italics added.)

True, Robinson, Moore, Qualkinbush, and Padfield all
involved different diversion schemes. However, we find no
meaningful distinction between the statutes that would
undermine application of the same reasoning here. (Compare §
1001.21, subd. (a) with § 1001.36, subd. (f)(1) [“ ‘[p]retrial
diversion’ means the postponement of prosecution, either
temporarily or permanently, at any point in the judicial process
from the point at which the accused is charged until adjudication,
to allow the defendant to undergo mental health treatment”],
italics added, § 1001.36, subd. (e) [“[a]t any stage of the
proceedings, the court may require the defendant to make a
prima facie showing that the defendant will meet the minimum
requirements of eligibility for diversion and that the defendant
and the offense are suitable for diversion”], italics added.)

6
Our Supreme Court, in People v. Braden (2023) 14 Cal.5th
791 (Braden), interpreted section 1001.36 to mean that a
defendant’s request for pretrial mental health diversion is timely
if made before attachment of jeopardy at trial or entry of a guilty
or no contest plea, whichever occurs first. (Id. at pp. 801, 810-
812, 819; but see id. at p. 812, fn. 13 [noting that “[t]he diversion
scheme for individuals with cognitive disabilities . . . has not yet
been construed by any appellate court” and declining “to
undertake that task”].) Accordingly, this division concluded, in
People v. Moore, supra, 104 Cal.App.5th 90, that an attorney’s
purported ineffective assistance—in failing to request pretrial
mental health diversion—cannot be a matter occurring after the
plea. (Id. at p. 94.)

Like mental health diversion, a grant of developmental
disability diversion postpones the prosecution of criminal
charges. And a defendant who performs satisfactorily on
diversion is entitled to have their charges dismissed. (K.D.,
supra, 110 Cal.App.5th at p. 17; compare §§ 1001.23, subd. (b),
1001.28, 1001.31 with § 1001.36, subds. (f) & (h).) The statutory
language explicitly contemplates that the defendant will be
facing “charges”, not a conviction, at the time diversion is
granted. (§§ 1001.23, subd. (b), 1001.31; see Braden, supra, 14
Cal.5th at p. 807.) If the regional center determines that a
defendant does not have a developmental disability or if their
performance on “pretrial diversion” is deemed unsatisfactory, the
criminal proceedings will be reinstated. (§§ 1001.23, subd. (a),
1001.29, subd. (a); K.D., at p. 17; cf. § 1001.36, subd. (g).)
Furthermore, the developmental disability diversion statutes,
like those governing mental health diversion, “give[] the court no
authority to set aside a plea or trial verdict, which would be
required if diversion were granted after ‘adjudication’ of guilt by
trial or plea.” (Braden, at p. 807.) Both statutory diversion
schemes also require the defendant consent to diversion and
“waive[] their right to a speedy trial.” (§§ 1001.22, 1001.36, subd.
7
(c)(2).) It appears that the conclusion reached in Braden would
apply here too.

Finally, Wence’s diversion motion—which she renewed
after her plea, prior to sentencing—is also an attack on the
sentence that she negotiated in her plea. She seeks diversion
rather than the probationary term (with jail time and other
conditions) that she bargained for. This, too, requires a
certificate of probable cause. (See Johnson, supra, 47 Cal.4th at
p. 678 [“[e]ven when a defendant purports to challenge only the
sentence imposed, a certificate of probable cause is required if the
challenge goes to an aspect of the sentence to which the
defendant agreed as an integral part of a plea agreement”];
Panizzon, supra, 13 Cal.4th at p. 79 [“a challenge to a negotiated
sentence imposed as part of a plea bargain is properly viewed as
a challenge to the validity of the plea itself”].)

Because Wence’s entire appeal is subject to section 1237.5’s
certificate of probable cause requirement, but she failed to obtain
one, we must dismiss the appeal. (See Mendez, supra, 19 Cal.4th
at p. 1099; Cal. Rules of Court, rule 8.304(b)(3) [“[i]f the
defendant does not file the written statement required by . . .
section 1237.5 or the superior court denies a certificate of
probable cause, the appeal will be limited to issues that do not
require a certificate of probable cause”].)

Wence asks us (in the alternative) to treat her appeal as a
petition for writ of mandate from the trial court’s denial of her
request for a certificate of probable cause.

A petition for writ of mandate is the exclusive remedy for
challenging a trial court’s wrongful refusal to issue a certificate of
probable cause. (Johnson, supra, 47 Cal.4th at p. 676; People v.
Castelan (1995) 32 Cal.App.4th 1185, 1188.) Wence did not file a
writ petition within 60 days of the denial. (See Volkswagen of

8
America, Inc. v. Superior Court (2001) 94 Cal.App.4th 695, 701.)
Assuming (for the sake of argument) that we were persuaded
that section 1237.5’s certificate of probable cause requirement
could be so easily subverted (but see Castelan, at p. 1188;
Mendez, supra, 19 Cal.4th at p. 1099 [§ 1237.5 is to be applied
strictly]), we conclude that Wence fails to demonstrate her
entitlement to writ relief on the merits.

The evidence does not support a suspicion that Wence may
have a “ ‘[d]evelopmental disability’ ” that “constitutes a
substantial disability.” (Pen. Code, § 1001.20, subd. (a); Welf. &
Inst. Code, § 4512, subd. (a)(1).) Substantial disability means
“the existence of significant functional limitations in three or
more of the following areas of major life activity . . . : [¶] (A) Self-
care. [¶] (B) Receptive and expressive language. [¶] (C) Learning.
[¶] (D) Mobility. [¶] (E) Self-direction. [¶] (F) Capacity for
independent living. [¶] (G) Economic self-sufficiency.” (Welf. &
Inst. Code, § 4512, subd. (l)(1), italics added.) Welfare and
Institutions Code section 4512, subdivision (a), includes
intellectual disability, cerebral palsy, epilepsy, and autism within
the definition of developmental disability.

Here, the IEP evidence does not raise suspicion that Wence
may have a qualifying developmental disability. (See § 1001.22;
K.D., supra, 110 Cal.App.5th at p. 16.) The evidence merely
shows that Wence received special education services 10 years
before her offense because she had a learning disability affecting
language and learning and a psychiatric disorder that also
affected learning. Regulations exclude from the definition of
“[d]evelopmental disability” handicapping conditions that are
“[s]olely psychiatric disorders where there is impaired
intellectual or social functioning which originated as a result of
the psychiatric disorder . . . [¶] [and] . . . [s]olely learning
disabilities.” (Cal. Code Regs., tit. 17, § 54000, subds. (c)(1)-(2).)

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DISPOSITION

The appeal is dismissed.

BURNS, J.
WE CONCUR:

JACKSON, P. J.
SIMONS, J.

People v. Wence (A172745)