Certificate of Probable Cause
Category > Certificate of Probable Cause
Updated 3/6/2024Defendant whose appeal began before the enactment of SB 1393, could seek relief under that provision without obtaining a certificate of probable cause.Effective January 1, 2019, SB 1393 amended Penal Code sections 667 (a)(1) and 1385, and granted trial courts discretion to strike or dismiss previously mandatory five-year prior felony conviction enhancements. Defendant entered a plea, was sentenced and filed a notice of appeal approximately one year before SB 1393 was enacted. His failure to obtain a certificate of probable cause at the time of the appeal did not bar his claim on appeal requesting relief based on a change in the law.id: 26595
Updated 2/26/2024The superior court had the legal authority to grant a habeas petition challenging a 2005 sentence following a plea bargain.In 2017, defendant filed a habeas corpus petition in the superior court challenging his sentence following a plea bargain in 2005. He did not need a certificate of probable cause to challenge the sentencing order since he was proceeding by way of a writ rather than an appeal. Moreover, the issue could be addressed by the court since it involved an unauthorized sentence. Finally, the court was authorized to reconsider the sentence following notification by the CDCR that it may been illegal.id: 26392
Updated 2/23/2024Defendant may appeal a sentence imposed after a section 1170 (d) recall without need for a certificate of probable cause.The Secretary of the Department of Corrections and Rehabilitation recommended that defendant be resentenced pursuant to Penal Code section 1170 (d)(1). An appeal can be taken from a sentence imposed under section 1170 (d)(1), without the need for a certificate of probable cause.id: 26928
Updated 2/7/2024No certificate of probable cause was required where the defendant alleged IAC for failing to seek a hearing on defendant’s eligibility for mental health diversion.Defendant pled no contest to carrying a concealed dirk or dagger, and admitted the offense violated probation in a different matter. The trial court sentenced him to two years and eight months. On appeal, he argued the conviction and probation violation should be reversed because his attorney rendered ineffective assistance in failing to request a hearing on his eligibility for mental health diversion under Penal Code section 1001.36. Contrary to the Attorney General’s claim, no certificate of probable cause to appeal was required because defendant did not attack the validity of his plea, and instead challenged the trial court’s sentencing discretion relating to the applicability of section 1001.36.id: 27204
Updated 2/4/2024Presentence credits for assault with a firearm should have been calculated under section 4019, and no CPC was required to raise the issue.Defendant pled no contest to one count of assault with a firearm and admitted a prior conviction for the same offense. The trial court erred in failing to calculate his presentence custody credits under Penal Code section 4019 because assault with a firearm is not a violent felony listed under section 667.5(c), and so the limitation on credits described in section 2933.1 does not apply. The claim regarding the miscalculation of presentence credits did not require a certificate of probable cause.id: 27684
Where Prop 57 and SB 620 took effect after defendant’s plea deal, he could seek relief on appeal despite the lack of a certificate of probable cause.Defendant committed offenses when he was 17 years old and entered into a plea agreement. After the plea, Prop 57 took effect along with SB 620, and defendant argued on appeal that he was entitled to a remand for a juvenile fitness hearing, and a resentencing where the court could exercise discretion to dismiss the gun enhancement. Defendant was permitted to raise these issues despite his failure to seek a certificate of probable cause in support of his appeal because the changes were implicitly incorporated into the plea agreement. Hence, his contentions did not challenge the validity of his plea.id: 25945
Defendant did not need a certificate of probable cause to challenge an agreed-upon sentence where the plea deal predated the enactment of SB 620.Defendant entered a guilty plea with an agreed upon sentence at a time when the trial court had no authority to dismiss a firearm use enhancement. After the plea, the Legislature enacted SB 620, which gave the courts discretion to strike the enhancements. Defendant thereafter sought to challenge the agreed-upon sentence on appeal. Defendant was not required to obtain a certificate of probable cause in order to challenge the sentence under these circumstances.id: 25780
The certificate of probable cause requirement described in Penal Code 1237.5 does not apply to appeals where the defendant has not pled guilty or no contest.Under Penal Code section 1237.5, a defendant who pleads guilty or nolo contendere may not appeal the felony conviction without obtaining a certificate of probable cause. Defendant was convicted of petty theft, but admitted a prior felony conviction. The certificate of probable cause requirement did not apply in these circumstances.id: 22548
The notice of appeal and request for a certificate of probable cause are timely if filed within 60 days and they need not be filed simultaneously.The trial court erred in denying defendant’s request for a certificate of probable cause as untimely where it was filed after the noncertificate notice of appeal but within the 60 day time limit. The matter was remanded to consider the application on its merits or on procedural grounds other than untimeliness.id: 21261
No certificate of probable cause was required where defendant alleged a breach of the plea agreement which occurred after the plea, and following the imposition of the longer term pursuant to the Vargas waiver. Defendant entered into a plea agreement that included a “Vargas waiver” which provided for a higher sentence, a prison term, if he failed to appear for sentencing. The agreement also included a “break no laws” provision. The prosecutor sought to impose the prison term after a new domestic violence incident. On appeal from the prison sentence he argued he preserved his right to a jury trial in the plea agreement for any violation of the Vargas waiver. No certificate of probable cause was required where defendant alleged a breach of the plea agreement, after the entry of the plea, on a matter relating to sentencing.id: 20701
A defendant appealing from the denial of a postplea motion to terminate his mandatory sex offender registration requirement was not required to obtain a certificate of probable cause.Defendant argued the trial court erred in denying his motion to terminate his mandatory sex offender registration requirement. The Attorney General argued the issue was not cognizable on appeal absent a certificate of probable cause. However, because the postplea motion appealed from did not challenge the validity of the plea, a certificate of probable cause was not required. id: 20562
A certificate of probable cause was not required where defendant argued the restitution award violated the terms of the plea agreement. Defendant pled guilty to an offense and argued the trial court's excessive restitution order failed to give effect to the terms of
the plea. The appeal was not an attack on the validity of the plea and no certificate of probable cause was required.id: 19463
No certificate of probable cause is required for a section 654 challenge where the parties did not agree on a sentencing lid. In People v. Shelton (2006) 37 Cal.4th 759, the court held that a defendant must obtain a certificate of probable cause before raising a Penal Code section 654 challenge to a sentence that does not exceed the "lid" (maximum sentence of something less than the maximum term that could otherwise be imposed) specified in a plea agreement, because such a challenge affects the validity of the plea itself. The rule does not apply in cases where the plea agreement does not specify a lid but the court, in taking the plea, advises the defendant of the maximum term available for the charges and proceeds to impose a term within that theoretical maximum.id: 19271
Search and seizure question fell within the exception to the certificate of probable cause requirement.Since appellant's collateral estoppel question involved a search and seizure, it was within the Penal Code section 1538.5, subdivision (m) exception to the certificate of probable cause requirement.id: 14727
Rule 31(d) does not restrict the cognizability on appeal of additional, unspecified noncertificate issues or categories of issues.Under California Rules of Court, rule 31(d), an appeal from a conviction obtained by a guilty plea is operative without a certificate of probable cause only if it involves the denial of a Penal Code section 1538.5 motion or if it involves a post-plea proceeding and does not involve the validity of the plea. These are the noncertificate grounds. Rule 31(d) does not restrict the cognizable issues to the particular noncertificate grounds specified in the notice of appeal, but determines only when a noncertificate appeal may proceed.id: 14726
When trial court issues a certificate of probable cause the defendant may raise issues other than those identified in the statement of grounds.Penal Code section 1237.5 precludes a criminal defendant from appealing a conviction based on a guilty plea, on grounds going to the validity of the plea or the pre-plea proceedings, unless the defendant has filed with the trial court a statement of grounds for appeal and the trial court has issued a certificate of probable cause. Once the court has issued such a certificate, the defendant may raise on appeal cognizable issues other than those identified in the statement of grounds.id: 14729
A certificate of probable cause was not required where the trial court committed an error after the entry of the plea.Defendant pled nolo contendere to both burglary and possession of the stolen property. However, the conviction was void because once the trial court convicted defendant of burglary it could no longer convict him of receiving the same property. Because the conviction was void it was subject to judicial correction whenever the error was brought to the attention of the trial court or reviewing court. The formal requirements of Penal Code section 1237.5 (a statement of probable cause for appeal) do not apply where defendant is not challenging the validity of the plea but is alleging post-plea error. Moreover, the trial court admitted legal error but did not correct it because the appellate process had gone too far. The trial court therefore impliedly certified probable cause for the appeal. The receiving conviction was reversed.id: 14720
A certificate of probable cause is not required for a challenge to the exercise of the sentencing judge's discretion reserved under the plea bargain.Unless it specifies otherwise, a plea agreement providing for a maximum sentence inherently reserves the parties right to a sentencing proceeding in which 1) they may litigate the appropriate individualized sentence choice within the constraints of the bargain and the court's lawful discretion, and 2) appellate challenges otherwise available against the court's exercise of that discretion are retained. An appellate challenge to the exercise of the discretion reserved under the bargain is a post-plea sentencing matter extraneous to the plea agreement. Such a claim does not attack the validity of the plea. For that reason a certificate of probable cause is not required.id: 17361
No certificate of probable cause was required for a claim that the court abused its discretion in refusing to dismiss a strike prior.Defendant pled guilty to three felony counts and admitted two strike priors on certain conditions including the court's representation that it would consider dismissing a strike prior. After a hearing on the matter the court denied the request and imposed a term of 25 years to life. Defendant argued the trial court abused its discretion in denying the motion to dismiss a strike prior. The claim could be raised on appeal without a certificate of probable cause. However, in light of defendant's lengthy criminal history, the court did err in denying the request.id: 14818
Defendant who was challenging the denial of a post-plea Marsden motion was not required to obtain a certificate of probable cause.Defendant was not required to obtain a certificate of probable cause to challenge the trial court's denial of his post-plea Marsden motion, although some of defendant's complaints pertained to trial counsel's pre-plea conduct.id: 18119
Updated 4/13/2024Defendant forfeited his challenge to defense counsel’s failure to request mental health diversion by failing to obtain a certificate of probable cause.Defendant pled nolo contendere to two felonies. He argued trial counsel rendered ineffective assistance by failing to request pretrial mental health diversion under Penal Code section 1001.36. However, the claim was precluded due to defendant’s failure to obtain a certificate of probable cause.id: 28234
Updated 3/7/2024Electronic search probation condition was reasonable for defendant who stole electronics devices to buy drugs.Defendant pled guilty to stealing cell phones and other electronic devices so that he could buy drugs. The probation condition allowing a warrantless search of his electronic deices was reasonable and not overbroad. Contrary to the prosecution's argument, defendant was not required to obtain a certificate of probable cause in order to challenge the probation condition on appeal.id: 26289
Updated 2/23/2024Defendant need not seek a certificate of appealability to argue that SB 1393 was retroactive and the case should be remanded to allow the trial court to dismiss the prior serious felony enhancement.Defendant entered into a plea agreement for a specified term that included a prior serious felony enhancement under Penal Code section 667, subd.(a). While his appeal was pending, a new law went into effect permitting the trial court to dismiss the felony enhancement in furtherance of justice, which it was not previously authorized to do. Defendant was not required to obtain a certificate of probable cause to claim on appeal that the new law applied to him retroactively. Should the trial court dismiss the prior on remand, the court can withdraw its approval of the plea agreement. id: 26902
Defendant who agreed to a sentence for the gun enhancement in a negotiated plea had to obtain a certificate of probable cause to challenge the sentence under SB 620. A defendant who agrees to a specified sentence for a firearm enhancement under a negotiated plea is required to obtain a certificate of probable cause to challenge his sentence on appeal.id: 26176
Following a guilty plea, the defendant could not seek resentencing under SB 1393 without first obtaining a certificate of probable cause. Defendant pled guilty to certain offenses and was sentenced to 19 years in prison. He argued the case should be remanded under SB 1393 so that the court could decide whether to strike or dismiss prior serious felony convictions. However, the appeal was dismissed because defendant did not obtain a certificate of probable cause.id: 26207
Defendant’s appeal seeking a remand under SB 1393 was dismissed where the parties had agreed to the 18 year sentence as part of the plea bargain and defendant did not obtain a certificate of probable cause.Defendant was a three strikes offender who pled guilty to residential burglary plus enhancements, agreeing to an 18 year sentence. He later sought to appeal the sentence seeking a remand to allow the trial court to exercise its discretion to dismiss the prior serious felony conviction enhancements under the newly enacted SB 1393. The appeal was dismissed where defendant did not obtain a certificate of probable cause.id: 26099
Defendant who received the benefit of his plea bargain, could not challenge the characterization of assault with a firearm as a violent felony mandating 10 years for the gang enhancement without first obtaining a certificate of probable cause.Defendant pled guilty to assault with a firearm along with a Penal Code section 186.22, subd.(b) gang enhancement allegation, which the court said carried a five year term. Prior to sentencing, the court noted the enhancement required a 10 year sentence and offered defendant a chance to withdraw his plea, which he refused. He argued on appeal that the court erred in imposing 10 years rather than five for the gang enhancement, although the ultimate term was the one promised. However, defendant received the benefit of his bargain and could not challenge the substantive charge as a violent rather than serious offense - which would have resulted in a five year enhancement term - without first obtaining a certificate of probable cause.id: 20275
Defendant’s unequivocal waiver of his right to appeal as part of his guilty plea precluded appellate review.Defendant argued the trial court erred by failing to suppress his Miranda-violative statement. However, he entered a guilty plea, and his unequivocal waiver of the right to appeal precluded appellate review of the issue. The issuance of the certificate of probable cause to appeal did not change the conclusion since it was legally ineffectual.id: 25949
A certificate of probable cause was required to challenge a probation condition on appeal where defendant had waived the right to appeal as part of a plea bargain.Defendant pled guilty to a felony offense and waived her right to appeal. She thereafter sought to challenge a probation condition prohibiting her from possessing weapons. However, 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.id: 25625
When immigration consequence advisements don’t appear on the record the prosecution must prove by a preponderance of the evidence that they were given.When proof of the required immigration advisements prior to a guilty plea are not adequately shown in the record, the prosecution must prove by a preponderance of the evidence that the advisements were given. Moreover, a certificate of probable cause is not required to appeal a trial court’s order denying a motion to vacate a conviction under Penal Code section 1016.5.id: 23546
Defendant challenging the denial of a suppression motion following a guilty plea could not proceed without a certificate of probable cause where he also challenged the waiver of his right to appeal.Defendant pled guilty to a drug offense, and sought to challenge the denial of his Penal Code section 1538.5 suppression motion. Normally, a defendant challenging the denial of a suppression motion need not obtain a certificate of probable cause. However, defendant also challenged the waiver of his right to appeal which was part of the plea bargain and required a certificate of probable cause. id: 23454
Defendant was required to obtain a certificate of probable cause when appealing the denial of a motion to vacate a plea based on counsel’s failure to give proper advice on immigration consequences.Defendant pled nolo contendere to a drug offense. He appealed from a post-judgment order denying his nonstatutory motion to vacate the judgment arguing his counsel was ineffective for misadvising him about the immigration consequences of the plea. However, the appeal was dismissed because defendant was essentially challenging the validity of his plea and failed to obtain a certificate of probable cause.id: 22863
The state appellate court lacked jurisdiction to entertain the appeal absent a certificate of probable cause even after it had recalled the remittitur following relief in the Ninth Circuit.Defendant moved to withdraw his guilty plea claiming it was involuntary. The appeal was dismissed in 2002 because defendant never obtained a certificate of probable cause. A federal appeals court later found trial counsel rendered ineffective assistance of counsel in failing to obtain the certificate. Even after the case was sent back to the state court, the state lacked jurisdiction to consider the appeal because of the lack of a timely certificate of probable cause.id: 22631
The trial court did not err in finding defendant had been advised of immigration consequences before a 1986 plea where the judge testified he always gave the advice.Defendant sought to vacate a 1986 guilty plea arguing he was not properly advised of the immigration consequences. First, defendant was not required to obtain a certificate of probable cause to appeal the denial of his motion. Next, substantial evidence supports the finding that the advisements were given despite the lack of a reporter’s transcript from the plea hearing or the lack of a notation regarding an advisement in the minute order. The judge from the 1986 plea hearing testified that he always gave the advice and recited his standard statement. Finally, defendant was wrong in arguing that the Penal Code section 1016.5 advisement need be given by the court rather than the prosecutor.id: 22508
Defendant was required to obtain a certificate of probable cause to appeal the denial of a motion to vacate the judgment following a plea.Defendant argued that because he was inadequately advised of the immigration consequences of his plea, the trial court erred in denying his motion to vacate the judgment. However, the motion to vacate was an attack on the validity of the plea, and an appeal from the denial of the motion required him to obtain a certificate of probable cause. The appeal was dismissed. id: 22145
Defendant needed a certificate of probable cause to challenge the denial of his right to move to withdraw the plea after the court refused to grant new counsel.Defendant argued he was denied the right to bring a motion to withdraw his plea when his retained counsel announced he was unable to make the motion due to a conflict and the trial court refused to appoint new counsel for purposes of the motion. However, the appeal was dismissed because defendant failed to obtain a certificate of probable cause.id: 21368
Defendant needed a certificate of probable cause to challenge his admission to a prior prison term allegation.Defendant argued that he did not knowingly and intelligently waive his constitutional rights when he admitted a prior prison term allegation after the jury convicted him on the underlying offense. However, his failure to obtain a certificate of probable cause rendered the claim noncognizable on appeal.id: 21281
A defendant who wishes to appeal a guilty plea claiming ineffective assistance of counsel regarding a request to withdraw the plea must first obtain a certificate of probable cause.A certificate of probable cause was a prerequisite to an appeal based upon a claim that defense counsel rendered ineffective assistance in refusing to assist defendant in preparing a motion to withdraw the guilty plea.id: 21268
The certificate of probable cause requirement did not violate defendant’s right to due process or equal protection.Defendant sought to challenge his mental competence at the time of his guilty plea. However, his failure to obtain a certificate of probable cause prohibited the appeal of this issue. Contrary to defendant’s claim, the certificate of probable cause requirement did not violate his rights to due process or equal protection. id: 21015
Defendant could not challenge the maximum term agreed to in the plea bargain absent a certificate of probable cause.The maximum allowable term reached in a plea bargain agreed to by the defendant is part of the plea agreement. Consequently, a defendant is required to obtain a certificate of probable cause before challenging the trial court’s authority to impose the maximum allowable term reached in the changed bargain. Because defendant agreed to the maximum term in writing before entering the plea, his constitutional arguments challenging the sentence (as violating double jeopardy and cruel and unusual punishment provisions) were not cognizable on appeal absent a certificate of probable cause.id: 20705
A defendant seeking to challenge a sentence within the agreed maximum following a plea bargain must first obtain a certificate of probable cause.In People v. Shelton (2006) 37 Cal.4th 759, the court held a certificate of probable cause is required where a defendant challenges a sentence that was specified as a sentence “lid” in a plea agreement. The same reasoning applies in a case where a defendant enters a plea in which charges are reduced or dropped and the defendant agrees to a maximum possible sentence but then seeks to challenge that sentence on appeal.id: 20558
Defendant’s claims that the court erred by failing to notify him that he allegedly violated the “Vargas waiver” and by failing to state a reason required a certificate of probable cause.Following the guilty plea the trial court indicated defendant would be sentenced to prison for six years, but stayed execution of sentence pursuant to a “Vargas waiver” (where the court can impose a longer term if the defendant fails to appear at sentencing.) Defendant failed to appear and the court imposed the six year term. He argued the trial court violated his due process rights by not giving him notice that he allegedly violated the terms of the Vargas waiver, and by not stating a reason why he was found to be in violation. However, the issues were dismissed due to defendant’s failure to obtain a certificate of probable cause.id: 20482
Defendant was not required to obtain a certificate of probable cause to raise his claim of Cunningham error on appeal.Following the guilty plea, defendant argued the upper term was not authorized because the prosecution failed to establish an aggravating circumstance at the sentencing hearing in the manner required under Cunningham v. California (2007) 549 U.S. ___, 125 S.Ct.856. A certificate of probable cause for appeal was not required because the claim implicates the sentence only and does not challenge the validity of the plea agreement.id: 20244
Once the trial court relieved the public defender and appointed new counsel, it could not hear the public defender's request to be reappointed without having newly appointed counsel present.Defendant sought to withdraw his guilty plea prior to sentencing. His deputy public defender declared a conflict and the court then appointed the alternate public defender. After the noon recess, the public defender returned and asked to be reappointed. The trial court erred by hearing the request of the public defender (relieved counsel) without the presence of defendant's newly appointed counsel. Defendant was not required to obtain a certificate of probable cause to address the issue which involved an error committed during post-plea events.id: 20209
Defendant's challenge of the sentence was an attack on the validity of the plea which required a certificate of probable cause.Defendant was sentenced in accordance with the plea bargain. He later appealed claiming the sentence was cruel and unusual. However, the Court of Appeal erred in denying the People's request for a dismissal since defendant failed to obtain a certificate of probable cause as required under Penal Code section 1237.5 and California Rules of Court, rule 31 (d). Since the challenge attacked an integral part of the plea, it was a challenge to the validity of the plea which required compliance with probable cause requirements. Even if defendant's challenge was an attack on the sentence rather than the plea, it was barred because he had waived the right to appeal his sentence as part of the plea bargain.id: 14725
Defendant's decision to plead guilty based on the distrust of his attorney was not substantial evidence of incompetency.Defendant argued the trial court erred in failing to hold a competency hearing prior to sentencing. Contrary to the Attorney General's claim, this was not a challenge to the validity of the plea and no certificate of probable cause was required. However, the court did not err in not holding a hearing as defendant had previously been found competent, and the new evidence that defendant decided to forego a trial because he distrusted his attorney was not substantial evidence of incompetence.id: 20031
A certificate of probable cause was required to address the failure to hold a Marsden hearing to determine the basis for a request to replace counsel and withdraw the plea.Defendant argued the trial court erred by failing to hold a Marsden hearing to determine the basis for his request for new counsel and for his motion to withdraw his plea. However, the contention was not cognizable on appeal because defendant failed to obtain a certificate of probable cause.id: 20011
The trial court's acknowledgment that defendant could file a notice of appeal as to certain issues did not waive the requirements of section 1237.5.After the trial court denied defendant's motion to dismiss certain counts, defendant entered a guilty plea. At that time, defense counsel said he would "file the notice of appeal as to those issues" and the court replied "And you can." Defendant filed a notice of appeal but never requested a certificate of probable cause. Contrary to defendant's claim, the trial court's statement did not amount to a waiver of the requirements of Penal Code section 1237.5 and was not the functional equivalent of a certificate of probable cause. Even if it was, such a promise would be unenforceable as courts lack the authority to waive the requirements.id: 19963
Defendant could not challenge the negotiated sentencing terms of his plea agreement without a certificate of probable cause.Defendant argued the trial court imposed the wrong sentencing rules following the guilty plea to attempted pimping, and the sentence should have been calculated under Penal Code sections 1203.2a and section 1170.12(a)(8), rather than section 1170.1(a). However, the claim was dismissed as it challenged the negotiated sentencing terms of the plea agreement and he failed to obtain the requisite certificate of probable cause in the trial court.id: 19930
The amended rule of court did not intend to abrogate the 60-day deadline for filing the statement of reasonable grounds for appeal.Defendant argued that by deleting the 60-day deadline from former rule 31(d) when moving its language to former rule 30(b), the Judicial Council abrogated the time limit for filing a statement of reasonable grounds for appeal. However, the statement of grounds required by Penal Code section 1237.5, subd.(b), must be filed within 60 days of the rendition of judgment. Because defendant reasonably relied on trial counsel to perfect all arguable issues on appeal, the Benoit constructive filing criteria were satisfied. However, the motion for constructive filing was denied where the proposed appellate issue was clearly frivolous.id: 19480
Defendant did not show good cause to amend or construe his notice of appeal to include noncertificate issues that would have allowed a court in a Wende review to consider
sentencing issues. Following his no contest plea, defendant filed a notice of appeal
challenging the validity of the plea. The trial court denied his request for a certificate of probable cause. Appellate counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436, asking the court to review the record for all arguable issues. Counsel filed an application to amend or construe the notice of appeal to include noncertificate issues, including sentencing matters. However, the record shows nothing to support a finding that defendant intended to appeal anything that occurred after the plea. His application to amend or construe the notice of appeal was denied and the appeal dismissed.id: 19429
Defendant's challenge to the denial of a continuance to file a motion to withdraw the plea was a challenge to the validity of the plea and required a certificate of probable cause. Defendant's request for a continuance to file a motion to withdraw his no contest plea and admissions was, in essence, a challenge to their validity. Thus, the appeal (challenging
the refusal to continue the sentencing hearing) was barred by defendant's failure to obtain a certificate of probable cause.id: 19114
Plea agreement did not preserve, at sentencing or on appeal, the issue that the court lacked the authority to impose the upper term under Blakely. Following a guilty plea, defendant filed an appeal challenging the trial court's authority to impose an upper term sentence in light of Blakely v. Washington (2004) 542 U.S. 296. However, the argument was not cognizable on appeal because defendant did not obtain a certificate of probable cause.id: 19000
A defendant must obtain a certificate of probable cause to challenge the trial court's legal authority to impose the maximum or "lid" sentence.A plea agreement with a sentence "lid" implies a mutual understanding that the lid is a sentence the court could legally impose. Defendant's claim that the trial court lacked the authority to impose the lid sentence because the sentence for that count should have been stayed pursuant to Penal Code section 654, was a challenge to the validity of the negotiated plea. Therefore, defendant's failure to secure a certificate of probable cause barred consideration of the challenge and required a dismissal of the appeal.
id: 18875
Guilty plea precludes appeal of matters relating to guilt or innocence, and in this case there was no IAC for failing to investigate contributory negligence which was not a defense.Following a guilty plea of second degree murder of a fetus, defendant obtained a certificate of probable cause, and sought to appeal the denial of the motion to withdraw the plea (based on a claim of ineffective assistance of counsel). He also argued the plea lacked a sufficient factual basis. While the guilty plea limits issues relating to guilt or innocence, an appeal may lie for constitutional issues which address the legality of the proceedings. While the Court of Appeal found defendant's guilty plea likely waived his ability to claim IAC for failing to investigate a defense, the court heard the issue to avoid a subsequent petition for writ of habeas corpus. However, there was no IAC in failing to determine whether the victim was driving negligently or had bad brakes. The victim's contributory negligence is not a defense.id: 18218
Defendant may validly enter a guilty plea that permits sentencing under the DSL even though the offense qualifies for Prop 36 probation.A defendant may validly enter into a plea bargain that permits sentencing under the determinate sentencing law, when the admitted crime is a "nonviolent drug possession offense" for purposes of Prop 36. Defendant's claim that the court was required to place him on Prop 36 probation was an attack on the validity of the plea and required a certificate of probable cause.
id: 18127
Defendant's notice of appeal "from a final judgment of conviction" cannot be liberally construed as impliedly based solely on noncertificate grounds.Following defendant's guilty plea, he filed a notice of appeal "from the final judgment of conviction." His appeal was later dismissed after he failed to file a certificate of probable cause under Penal Code section 1237.5, and California Rules of Court, rule 31(d). Defendant argued that since he did not request a certificate of probable cause, or indicate that he was challenging the validity of his plea, the notice of appeal was based on noncertificate grounds. Accordingly , the appeal should not be dismissed, but rather, limited to noncertificate grounds. However, the notice of appeal "from a final judgment of conviction" cannot be liberally construed as implicitly based solely on noncertificate grounds. Because defendant failed to fully and timely comply with section 1237.5, and rule 31(d), his appeal was dismissed.
id: 17640
The statement of reasonable grounds did not allow defendants relief in failing to file a timely request for a certificate of probable cause.Defendants sought to challenge the denial of their motions to withdraw their guilty pleas. They each filed a notice of appeal but failed to file a timely request for a certificate of probable cause. In In re Chavez (2003) 30 Cal.4th 643, the court found California Rules of Court, rule 45(e) could not be used to relieve a party from his failure to timely file the statement required by Penal Code section 1237.5. Therefore, the statement of reasonable grounds filed by defendants did not allow relief from default in timely filing the required statement. The criteria for application of the principle of constructive filing were not present. There was no indication that defense counsel agreed to file that statement but then neglected to do so. Moreover, defendants were not incarcerated. Further, the lateness could not be cured by a nunc pro tunc order of the trial court. Chavez applied retroactively and the appeals were dismissed.id: 17577
Relief from default was not available where defendant failed to timely file the statement of reasonable grounds for appeal required in order to obtain a certificate of probable cause.Defendant filed a petition for a writ of habeas corpus, alleging that his statement of reasonable grounds for appeal should be deemed timely filed under the common law doctrine recognizing the "constructive filing" of an appeal. Instead, the Court of Appeal applied Cal. Rules of Court, rule 45(e) to relieve defendant from default occasioned by his failure to timely file the statement of reasonable grounds, based upon his showing of good cause. However, rule 45(e) does not authorize the Court of Appeal to relieve a defendant from default resulting from his failure to timely file a statement of reasonable grounds for appeal. Moreover, the doctrine of constructive filing was inapplicable where the only delay attributable to the attorney consisted of failing to inform the defendant as early as possible that he did not agree to represent the defendant on appeal.id: 17347
Certificate of probable cause was necessary where defendant challenged a stipulated sentence which was an integral part of the plea.Defendant pled guilty to auto theft and admitted having a prior conviction. He argued his sentence should be reduced because the modification in Penal Code section 666.5 for recidivist auto thieves became effective before his case became final. However, he did not obtain a certificate of probable cause for appeal. He claimed a certificate was not necessary because he was challenging the sentence rather than the validity of the plea. However, a certificate of probable cause is necessary when a defendant challenges a stipulated sentence which is an integral part of the plea. Moreover, even if the CPC was not required, reducing the sentence would be improper since it was specifically negotiated. Defendant's only remedy would be to seek withdrawal of the guilty plea.id: 16328
Certificate of probable cause was required where defendant challenged the constitutionality of the maximum sentence that was part of his plea bargain.In <i>People v. Panizzon</i> (1996) 13 Cal.4th 68, the court found that 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 and therefore requires a certificate of probable cause in order to appeal. Defendant's plea agreement did not provide for a particular sentence, but for a maximum term allowing him to seek a lesser one. However, the challenge to the constitutionality of the maximum term that was part of his plea bargain was an attack on the validity of the plea. Accordingly, a certificate of probable cause was required.id: 16329
Court did not address defendant's claim of ineffective assistance of counsel where defendant never obtained a certificate of probable cause following the guilty plea.Defendant argued he received ineffective assistance of counsel in that prior to the guilty plea, counsel failed to advise him that he could challenge a search by police and seek disclosure of a confidential informant. However, the court refused to consider the issue due to defendant's failure to obtain a certificate of probable cause.id: 16330
Defendant's reliance on his attorney to perfect the appeal did not constitute good cause for relief from default due to the failure to seek a certificate of probable cause.Defendant entered a plea of nolo contendere to charges of drug possession. He filed a notice of appeal but did not seek a certificate of probable cause. (Penal Code section 1237.5 and Cal. Rules of Court, rule 31(d).) More than six months after the time for seeking a certificate of probable cause had expired defendant applied for relief from his default so that he could belatedly seek such a certificate. He argued "good cause" existed because he had relied on his attorney to perfect the appeal. However, a defendant's expectation that his counsel will file an appeal raising a certificate dependent issue does not necessarily constitute good cause. In the present case, the delay between entry of judgment and the request for relief from default and the absence of compelling reasons for the delay precluded a finding of good cause.id: 16331
In order to obtain review of certificate issues following a guilty plea a defendant must fully comply with section 1237.5 and rule 31(d) in a timely fashion.In order to obtain review of certificate of probable cause for appeal issues, that is, questions going to the legality of the proceedings, including the validity of the plea, a defendant must have complied with Penal Code section 1237.5, and California Rules of Court, rule 31(d) fully and specifically in a timely fashion.id: 16332
No statement of grounds in a certificate of probable cause was required where defendant challenged the trial court's claim that it lacked discretion to dismiss a strike prior.At sentencing following the guilty plea, the court stated it lacked discretion to dismiss a strike prior in furtherance of justice (prior to the <i>Romero</i>). Defendant filed a notice of appeal where he indicated he was appealing the sentence. The Court of Appeal dismissed the appeal for lack of a statement of grounds in a certificate of probable cause. However, the sentence was not part of the plea bargain and therefore no statement of grounds or certificate of probable cause was required. The claim that the superior court erred under <i>Romero</i> related only to the sentence and not the validity of the plea.id: 16333
When a defendant files a notice of appeal after a guilty plea without complying with certificate of probable cause requirements the appeal is inoperative.When the superior court receives a notice of appeal and the appellant fails to comply with Penal Code section 1237.5, and California Rules of Court, rule 31(d), the appeal is inoperative and the trial court should not prepare a record and certify it for the Court of Appeal.id: 16334
A certificate of probable cause was required to challenge a sentence that was agreed as part of his plea bargain.Notwithstanding a negotiated plea agreement that stipulated defendant was subject to a six year prison term, he challenged the six year term on appeal. He claimed the court abused its discretion by denying probation based on the Penal Code section 288.1 report. However, the six year negotiated lid was an integral part of the plea bargain itself. The appeal was dismissed since defendant failed to comply with Penal Code section 1237.5, and California Rules of Court, rule 31(d).id: 15119
Defendant's claim that he should be allowed to withdraw his plea since he was told the court would consider dismissing a strike prior required a certificate of probable cause.Defendant argued that his decision to plead guilty was manifestly influenced by the superior court's promise to consider striking one or more of his strike priors. Because the court did not do so, he sought to withdraw his plea. By its express terms, the claim attacks the validity of the plea. Thus, it cannot be entertained in the absence of a certificate of probable cause.id: 15120
Claim that the post-plea life term was cruel and unusual was similar to an attack on the validity of the plea and a certificate of probable cause was required.Defendant pled guilty to three counts on condition that he would receive concurrent terms and the court would consider dismissing one or more strike priors. After a hearing, the court imposed a term of 25 years to life. Defendant argued the term constituted cruel and unusual punishment. However, the claim was similar to an attack on the validity of the plea, and therefore a certificate of probable cause was required.id: 15082
Where a certificate of probable cause has been denied the appeal is not operative and the denial of the certificate must be reviewed by writ of mandate.Defendant appealed his conviction arguing the trial court erred in denying his motion to withdraw the guilty plea. He had filed a notice of appeal and requested a certificate of probable cause for appeal which was denied by the trial court. He argued his claim was reviewable on appeal because the denial of the certificate of probable cause was an abuse of discretion. However, where a certificate of probable cause has been denied the appeal is not operative and the denial of the certificate must be reviewed by writ of mandate.id: 14730
Appeal based on a challenge to the legality of the plea was dismissed for failure to obtain a certificate of probable cause.Appellant pled no contest to first degree burglary and possession of stolen property. She filed an appeal arguing she could not legally be convicted of both. She did not obtain a certificate of probable cause pursuant to Penal Code section 1237.5. She filed an amended notice of appeal arguing the appeal was authorized under California Rules of Court, Rule 31(d) because it was based upon grounds occurring after entry of the plea which do not challenge its validity. However, appellant's claim that the conviction was unlawful was necessarily a challenge involving the validity of the plea and an appeal on that basis requires a certificate of probable cause.id: 14721
Appeal challenging the validity of the guilty plea was dismissed following the failure to comply with the former or current section 1237.5.Appellant filed a notice of appeal challenging the validity of the guilty plea. At that time, he was required to file a certificate of probable cause for appeal (Penal Code section 1237.5). His certificate was denied. He then filed a second notice of appeal on the last possible day. On this date, the certificate of probable cause was no longer required to be filed, but he was still required to file a notice setting forth the constitutional grounds for his appeal. No such grounds were alleged. Appellant erred in failing to comply with either the current or former section 1237.5. Without compliance with the statute, the appeal was dismissed.id: 14722
Appeal was dismissed where defendant did not include with his notice of appeal the required statement executed under oath or penalty of perjury.Defendant's appeal was dismissed because he did not comply with the provisions of Penal Code section 1237.5 applicable at the time he filed his notice of appeal as he did not include with his notice of appeal the required statement executed under oath or penalty of perjury.id: 14723
Court did not err in denying the certificate of probable cause following the guilty plea even though the validity of the plea was questioned by way of a motion to withdraw the plea.Defendant argued that he was confused when he pleaded guilty to burglary because he did not understand the elements of the offense and he thought he was pleading guilty to assault with a deadly weapon, and thus, the trial court should have granted his motion to withdraw the plea. Penal Code section 1237.5 barred appeals from a judgment of conviction upon a guilty plea unless the trial court had executed a certificate of probable cause. Defendant was subject to section 1237.5 even though he raised the question after the plea by the vehicle of a motion to withdraw. The trial court denied the request for the certificate of probable cause and there was no showing that such denial was erroneous.id: 14724
There was no error in failing to seek writ review of the first denial of a request for a certificate of probable cause where a new issue was subsequently discovered.Following a guilty plea defendant in pro per, filed a notice of appeal based on the sentence as well as the validity of the guilty plea. He requested a certificate of probable cause which was denied. After the record was prepared to review the possible sentencing error appellate counsel recognized a nonfrivolous issue concerning the plea and again requested a certificate of probable cause. The Attorney General argued the appeal must be dismissed because the proper procedure was not to request another certificate from the superior court, but rather, to seek by writ the court's initial denial of the request. However, under the circumstances making a second request (albeit late) for the issuance of a certificate of probable cause from the superior court was not erroneous.id: 14728
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245