People v. Espinoza

• Decision Date: 25 April 2018
• Docket Number: A151039
• Citation: 22 Cal.App.5th 794,231 Cal.Rptr.3d 827
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Donicia Athena ESPINOZA, Defendant and Appellant.

22 Cal.App.5th 794

231 Cal.Rptr.3d 827

The PEOPLE, Plaintiff and Respondent,

v.Donicia Athena ESPINOZA, Defendant and Appellant.

A151039

Court of Appeal, First District, Division 1, California.

Filed April 25, 2018

As Modified on Denial of Rehearing May 16, 2018

Counsel for Defendant and Appellant: Garrick Allen Byers, Fresno, First District Appellate Project

Counsel for Plaintiff and Respondent: Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General

Humes, P.J.Defendant Donicia Espinoza was placed on probation after pleading no contest to a felony count of cemetery vandalism. Before entering the plea, she expressed her understanding that probation conditions would be imposed, and as part of the plea, she entered a broad waiver of her right to appeal. After a specific probation condition was subsequently imposed prohibiting her from possessing weapons and ammunition, Espinoza brought this appeal to challenge it without first obtaining a certificate of probable cause from the trial court.

Espinoza contends that a certificate of probable cause was not required to challenge the weapons condition on appeal, but we disagree. We hold that a defendant who waives the right to appeal as part of a plea agreement must obtain a certificate of probable cause to appeal on any ground covered by the waiver, regardless of whether the claim arose before or after the entry of the plea. Absent such a certificate, the appellate court lacks authority under California Rules of Court, rule 8.304(b) to consider the claim because it is in substance a challenge to the validity of the appellate waiver, and therefore to the validity of the plea. Because we cannot reach the merits of Espinoza's claim without first addressing the validity of her appellate waiver, her failure to obtain a certificate of probable cause requires dismissal of her appeal.

I.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2016, a Fairfield police officer received a report of vandalism at a cemetery.¹ When he arrived at the cemetery, he saw "several damaged headstones, flowers scattered throughout," and Espinoza, "covered in mud and grass," standing in the damaged area. It appeared that several headstones had been "kicked over," and some were cracked and "beyond repair." A bystander identified Espinoza as the person who had caused the damage.

Espinoza was charged with a felony count of cemetery vandalism.² The trial court suspended the proceedings for an assessment of her mental competency. After she was found competent, she pleaded no contest to the charge. On her plea form, she initialed the following statement: "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 (e.g.: Penal Code Section 1538.5(m) ). I give up my right of appeal ." She also initialed statements indicating that her attorney had explained the form to her, that she was "of sound mind" and "[understood] the nature of these proceedings," and that she "freely and voluntarily, having full knowledge and understanding of the rights that [she was] giving up and the possible consequences which [might] result from [her] plea," requested a change of plea.

Before Espinoza entered her plea, the trial court explained that she would be put on probation and would "have to stay away from the cemetery, be subject to search and seizure, and other terms and conditions to make sure [she was] successful on probation." Espinoza indicated that she understood. The court confirmed that she understood the plea form, her attorney had reviewed it with her, and she had initialed it herself. As to the waiver of the right to appeal, the court said, "I don't know if you have a basis to appeal, but if you did, you're giving up any right to appeal when you make this plea; do you understand that?" Espinoza responded, "Yes." The court then accepted her plea and found it was intelligent, knowing, and voluntary.

The probation report recommended that Espinoza be prohibited from possessing certain weapons and ammunition. At the sentencing hearing, her trial counsel objected to this proposed condition, stating that "there's no nexus in this matter." The trial court asked whether Espinoza had "any instrument that she used to cause any of the damage[ ]," questioning "how someone with their bare hands causes this much damage to the headstones. I guess you can push it over, I guess." Counsel responded that the allegation was "kicking and throwing."

The trial court placed Espinoza on formal probation for three years, including a weapons condition. Specifically, the court stated, "Due to the felony nature, she's not to have firearms. Due to the underlying nature of this case, she's not to have any dangerous or deadly weapons of any kind at any time based on the felony. No ammunition or firearm[s]."

Espinoza filed a notice of appeal indicating that the appeal was "based on the sentence or other matters occurring after the plea that do not affect the validity of the plea." The record does not contain a certificate of probable cause.

II.

DISCUSSION

Espinoza claims that the challenged weapons condition is unreasonable, vague, and overbroad. We do not address these contentions because we agree with the Attorney General that the appeal must be dismissed.

Under section 1237.5, a defendant cannot appeal after entering a plea of no contest unless he or she "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" and the trial court "has executed and filed a certificate of probable cause for such appeal with the clerk of the court." " ‘The purpose of section 1237.5 is ... "to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas," and ... [t]he requirements of [the statute] ... must be strictly applied.’ " ( People v. Mashburn (2013) 222 Cal.App.4th 937, 941, 166 Cal.Rptr.3d 285 ( Mashburn ).)

California Rules of Court, rule 8.304 establishes an exception to section 1237.5. A defendant who has entered a plea of no contest need not obtain a certificate of probable cause "if the notice of appeal states that the appeal is based on: [¶] (A) The denial of a motion to suppress evidence under ... section 1538.5 ; or [¶] (B) Grounds that arose after entry of the plea [that] do not affect the plea's validity." ( Cal. Rules of Court, rule 8.304(b)(4) ; see id. , rule 8.304(b)(1).) If a notice of appeal identifies either of these circumstances as the basis for the appeal, "the reviewing court will not consider any issue affecting the validity of the plea" unless the defendant obtains a certificate of probable cause. ( Id. , rule 8.304(b)(5) ; see id. , rule 8.304(b)(1).)

Here, Espinoza's notice of appeal states the appeal is based on grounds that do not affect the plea's validity. But, " ‘[i]n determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of ... 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.’ " ( People v. Buttram (2003) 30 Cal.4th 773, 781-782, 134 Cal.Rptr.2d 571, 69 P.3d 420 ( Buttram ).)

Several decisions have considered whether an appellate claim was a challenge to the validity of the plea. In Buttram , the defendant pleaded guilty "in return for an agreed maximum sentence, or ‘lid,’ " but he appealed when the trial court denied his request for diversion and imposed the maximum sentence. ( Buttram, supra , 30 Cal.4th at pp. 776-777, 134 Cal.Rptr.2d 571, 69 P.3d 420, italics omitted.) Unlike Espinoza, the defendant did not waive his right to appeal as part of the plea. ( Id . at p. 776, 134 Cal.Rptr.2d 571, 69 P.3d 420.) The Supreme Court concluded that the appeal could proceed without a certificate of probable cause because the appeal was not a challenge to the validity of the plea, in that the trial court's exercise of its discretion under the maximum term was left open by the plea agreement. ( Id. at pp. 776-777, 134 Cal.Rptr.2d 571, 69 P.3d 420.)

Justice Baxter wrote both the majority and concurring opinions in Buttram . In his concurring opinion, he "offer[ed] some suggestions for improvement" of "the current ‘certificate of probable cause’ system for discouraging baseless pleas from negotiated pleas." ( Buttram, supra , 30 Cal.4th at p. 791, 134 Cal.Rptr.2d 571, 69 P.3d 420conc. opn. of Baxter, J.).) In doing so, he posited that a certificate of probable cause would be required if a defendant waived the right to appeal as part of a plea:

[A]n 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.

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

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