San Francisco Criminal Lawyer BlogCertificate of Probable Cause needed to appeal attorney’s failure to request pretrial mental health diversion
People v. Moore (Cal. Ct. App., Aug. 9, 2024, No. A167918) 2024 WL 3754712, at *1–2
Summary: Moore pleaded no contest to the charge of stalking in violation of Penal Code section 646.9, subdivision (a). Moore appealed, challenging his permanent revocation of probation following his admission to a probation violation on the grounds of ineffective assistance of counsel, based on his attorney’s failure to request pretrial mental health diversion (§ 1001.36). Moore was required to obtain a certificate of probable cause to pursue this appeal. (§ 1237.5; Cal. Rules of Court, rule 8.304(b).) The contrary holding in People v. Hill (2021) 59 Cal.App.5th 1190, 274 Cal.Rptr.3d 153 has been implicitly abrogated by our Supreme Court in People v. Braden (2023) 14 Cal.5th 791, 308 Cal.Rptr.3d 846, 529 P.3d 1116. The Court of Appeal dismissed the appeal because Moore failed to obtain the requisite certificate of probable cause.
Background
On September 1, 2022, Moore pleaded no contest to the charge of stalking in violation of section 646.9, subdivision (a) and was sentenced to 36 months of probation and ordered to serve a term of 96 days, with credit for 48 days served. After his stalking conviction, Moore violated his probation four times. After his fourth probation violation, the court permanently revoked his probation and sentenced him to two years in prison with credit for 417 days. Moore filed a notice of appeal on May 19, 2023, stating that the appeal is based on “[t]he sentence or other matters occurring after the plea or admission that do not affect the validity of the plea or admission.” (California Rules of Court, rule 8.304(b)(2)(B).) Moore did not request or obtain a certificate of probable cause.
Need for a Certificate of Probable Cause
Moore argued that no certificate of probable cause is required to raise his ineffective assistance of counsel claim because his appeal challenges only the trial court’s sentencing and not the validity of his plea. Moore asserts that his counsel was ineffective for failing to request pretrial mental health diversion pursuant to section 1001.36.
Section 1237.5 precludes appeals from convictions upon pleas of guilty or nolo contendere, or revocation of probation following admission of violation, “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.” (§ 1237.5.) A certificate of probable cause is not required for an appeal from “[t]he sentence or other matters occurring after the plea or admission that do not affect the validity of the plea or admission.” (California Rules of Court, rule 8.304(b)(2)(B).)
Moore contends that his “trial counsel was constitutionally ineffective for failing to pursue mental health diversion,” and claims he is not challenging the validity of the plea and therefore does not need a certificate of probable cause.
Pretrial mental health diversion is governed by section 1001.36. Subdivision (f) states: “ ‘Pretrial 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 ….” (§ 1001.36, subd. (f).)
In People v. Braden, supra, 14 Cal.5th at page 819, 308 Cal.Rptr.3d 846, 529 P.3d 1116, our Supreme Court recently held that a defendant’s request for pretrial mental health diversion (§ 1001.36, subd. (f)(1)) is timely if made before attachment of jeopardy at trial, or entry of guilty or no contest plea, whichever occurs first. Unde Braden, an attorney’s failure to request pretrial mental health diversion cannot be a “matter occurring after the plea ….” (California Rules of Court, rule 8.304(b)(2)(B).)
In People v. Robinson (2024) 100 Cal.App.5th 133, 319 Cal.Rptr.3d 58, Division Four addressed the issue of whether a certificate of probable cause is required to appeal from a conviction after a no contest plea based on ineffective assistance of counsel for failure to request pretrial mental health diversion. Robinson held that under the rule set forth in Braden, “an attorney’s failure to request pretrial mental health diversion cannot, by definition, be a ‘matter occurring after the plea.’ ” (Id. at p. 136, 319 Cal.Rptr.3d 58.) Accordingly, a certificate of probable cause is required. (Ibid.)
The Supreme Court decision in Braden, clarified that a request for mental health diversion after adjudication by trial or entry of a plea of guilty or no contest is untimely. Thus, an appeal based on a failure of counsel to request mental health diversion is not an appeal from “[t]he sentence or other matters occurring after the plea or admission that do not affect the validity of the plea or admission.” (California Rules of Court, rule 8.304(b)(2)(B).) We agree with Robinson that Braden implicitly abrogated Hill. (People v. Robinson, supra, 100 Cal.App.5th at p. 136, 319 Cal.Rptr.3d 58.)
Moore’s appeal based on counsel’s alleged ineffective representation in failing to obtain a timely pretrial mental health diversion is not an appeal from “[t]he sentence or other matters occurring after the plea or admission,” and it does “affect the validity of the plea ….” (California Rules of Court, rule 8.304(b)(2)(B).) Therefore, a certificate of probable cause is required. (§ 1237.5.)
The appeal was dismissed.
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