People v. Berlin

• Decision Date: 29 May 2019
• Docket Number: D073030
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JASON BERLIN, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. JASON BERLIN, Defendant and Appellant.

D073030

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

May 29, 2019

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. SCD261086)

APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge. Affirmed.

Raymond Mark DiGuiseppe, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.

Jason Berlin pleaded guilty to one count of rape of an intoxicated person. (Pen. Code, § 261, subd. (a)(3).)¹ The trial court initially sentenced Berlin to the upper term of eight years in prison. The court later recalled Berlin's sentence under section 1170, subdivision (d), and resentenced him to the middle term of six years.

Berlin appeals. He contends (1) the trial court erred by denying his pre-resentencing motion to withdraw his guilty plea; and (2) the judgment should be reversed and the matter remanded for the trial court to consider whether to admit Berlin to a pretrial mental health diversion program under recently-enacted section 1001.36.

We conclude that Berlin's first contention is barred by his failure to obtain a certificate of probable cause under section 1237.5. Berlin's second contention is unpersuasive because he is categorically barred from the mental health diversion program based on his rape conviction. We therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Over several months, Berlin engaged two self-described "pickup" instructors (Alexander Smith and Jonas Dick) to help him seduce and have sex with women. On October 13, 2013, Smith and Dick met the victim and her friend outside a bar in San Diego and brought them back to an apartment that Berlin had rented. While Dick distracted the victim's friend, Smith and Berlin raped the victim. The victim was heavily intoxicated and could not resist. When the victim's friend realized what was happening,she confronted the men, who told them to leave. Outside the apartment, the victim told her friend she had been raped, and they called police.

Berlin was charged, along with Smith and Dick, with rape of an intoxicated person (§ 261, subd. (a)(3)) and rape of an unconscious person (§ 261, subd. (a)(4)). Berlin pleaded guilty to rape of an intoxicated person and agreed to cooperate with the prosecution. In exchange, the prosecution agreed to dismiss the remaining charge of rape of an unconscious person.²

At Berlin's sentencing, the prosecution recommended the middle term of six years in prison. The trial court disagreed and imposed the upper term of eight years in prison. Berlin appealed. (See People v. Berlin (D071975, app. filed Mar. 14, 2017).)

While that appeal was pending, the trial court recalled Berlin's sentence under section 1170, subdivision (d). This court therefore dismissed Berlin's appeal, and the trial court set a new sentencing hearing. In advance of that hearing, Berlin filed a motion to withdraw his guilty plea. He primarily argued that his plea was not knowing or voluntary because his counsel erroneously advised him that he had no valid defense to the charges. He claimed that competent counsel would have investigated and substantiated a defense based on Berlin's autism spectrum disorder, which allegedly prevented him from forming the mental state required for the offense of rape of an intoxicated person.

At the new sentencing hearing, the trial court denied Berlin's motion to withdraw his plea. The court found that it had no jurisdiction to consider the motion because it was outside the scope of resentencing under section 1170, subdivision (d). (See People v. Alanis (2008) 158 Cal.App.4th 1467, 1476.) After reconsidering Berlin's sentence, the court decided to impose the middle term of six years in prison.

Berlin appealed again. In connection with his notice of appeal, he requested a certificate of probable cause. He contended that the issue of the court's jurisdiction to consider his motion to withdraw his plea was a nonfrivolous ground for appeal. The trial court denied his request. Berlin challenged this denial by petition for writ of mandate, which this court summarily denied. (Berlin v. Superior Court (D073946, May 11, 2018).) Berlin petitioned for review in the California Supreme Court, but he was unsuccessful. (Berlin v. Superior Court (S248881, June 27, 2018).) This appeal has therefore proceeded without a certificate of probable cause, and this court entered an order limiting the issues accordingly.³

DISCUSSION

IMotion to Withdraw Guilty Plea

Berlin contends the trial court erred by denying his motion to withdraw his guilty plea on jurisdictional grounds. He claims the judgment should be reversed so that the court can consider his motion on its merits.

Because Berlin appeals following a guilty plea, we must first consider whether his contention is barred by his failure to obtain a certificate of probable cause. "The right to appeal from a final judgment of conviction based on a plea of guilty or no contest is subject to certain limitations, including first obtaining a certificate of probable cause from the trial court." (People v. Arriaga (2014) 58 Cal.4th 950, 958 (Arriaga), citing §§ 1237, subd. (a), 1237.5.) "The provision lays down a 'condition precedent' to the taking of an appeal within its scope. [Citation.] It is a general 'legislative command' to defendants. [Citation.] It is not an authorization for 'ad hoc dispensations' from such a command by courts. [Citation.] Indeed, it effectively precludes dispensations of this sort, which are 'squarely contrary' to its terms [citations]." (People v. Mendez (1999) 19 Cal.4th 1084, 1098 (Mendez).)

" 'The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas. [Citations.] The objective is to promote judicial economy "by screening out wholly frivolous guilty [and nolo contendere] plea appeals before time and money is spent preparing the record and the briefs for consideration by the reviewingcourt." [Citations.] [¶] 'It has long been established that issues going to the validity of a plea require compliance with section 1237.5. [Citation.] Thus, for example, a certificate must be obtained when a defendant claims that a plea was induced by misrepresentations of a fundamental nature [citation] or that the plea was entered at a time when the defendant was mentally incompetent [citation].' " (People v. Buttram (2003) 30 Cal.4th 773, 781.)

Moreover, as directly relevant here, "[a] defendant must obtain a certificate of probable cause in order to appeal from the denial of a motion to withdraw a guilty plea, even though such a motion involves a proceeding that occurs after the guilty plea." (People v. Johnson (2009) 47 Cal.4th 668, 679.) This requirement applies both where a defendant contends his motion should have been granted and where, as here, the defendant seeks remand for the trial court to reconsider the motion in the first instance. "Whether the appeal seeks a ruling by the appellate court that the guilty plea was invalid, or merely seeks an order for further proceedings aimed at obtaining a ruling by the trial court that the plea was invalid, the primary purpose of section 1237.5 is met by requiring a certificate of probable cause for an appeal whose purpose is, ultimately, to invalidate a plea of guilty or no contest." (Id. at p. 682; accord, People v. Brown (2010) 181 Cal.App.4th 356, 361.)

Berlin failed to obtain a certificate of probable cause. He is therefore precluded from raising issues that challenge the validity of his guilty plea, including his contention that the court erred by denying his motion to withdraw his plea.

Berlin claims an "exception" to the certificate requirement applies, but the statute admits no such exceptions where a certificate is otherwise required. (See Mendez, supra, 19 Cal.4th at p. 1098.) Berlin relies on People v. Totari (2002) 28 Cal.4th 876, but the exceptions identified in that opinion are not exceptions to the certificate requirement. They are exceptions to the general rule that a postjudgment order " 'ordinarily is not appealable when the appeal would merely bypass or duplicate appeal from the judgment itself.' " (Id. at p. 882.) Here, as we discuss further below, the order denying Berlin's motion to withdraw his plea was not a postjudgment order. It was entered before the appealed judgment, and it is therefore reviewable on appeal from the judgment itself. Totari has no application here.

Berlin also argues that the certificate requirement should not apply because otherwise the merits of his motion to withdraw his plea would escape review. But the purpose of the requirement of a certificate of probable cause is, in fact, to prevent appellate review if the defendant cannot state a nonfrivolous ground for appeal. A defendant subject to the certificate requirement may not appeal without it. (§ 1237.5 ["No appeal shall be taken . . . ."].) Here, the trial court determined that Berlin had not raised a nonfrivolous ground for appeal that would justify issuing a certificate of probable cause. We summarily denied Berlin's petition for writ of mandate and the Supreme Court likewise denied review. It would subvert the purpose of the certificate requirement for this court to examine the merits of Berlin's contention again in this appeal. We express no opinion...