Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC064399.
McGuiness, P.J.
Appellant Eric Daton Derouen pleaded no contest to various narcotics offenses in exchange for a specified sentence of nine years in state prison. On appeal, he contends the trial court abused its discretion in failing to order a probation report before sentencing him to the agreed-upon term. He claims the report may have contained information that would have caused the court to withdraw its approval of his plea. Because appellant failed to secure a certificate of probable cause to pursue his claim of error, which is in substance a challenge to the plea, we shall dismiss the appeal.
Factual and Procedural Background
The San Mateo County District Attorney charged appellant by information with the following four felony narcotics offenses: possession of cocaine base for purchase or sale (Health & Saf. Code, § 11351.5), possession of ecstasy for sale (Health & Saf. Code, § 11378), possession of marijuana for sale (Health & Saf. Code, § 11359), and possession of cocaine salt for purchase or sale (Health & Saf. Code, § 11351). It was further alleged that appellant had six prior felony convictions making him presumptively ineligible for probation under Penal Code section 1203, subdivision (e)(4), that he had a prior robbery conviction constituting a strike under California’s Three Strikes Law, that he had served two prior prison terms qualifying him for one-year enhancements under Penal Code section 667.5, subdivision (b), and that he had a prior conviction for possession of cocaine base for purchase or sale, making appellant categorically ineligible for probation under Penal Code section 1203.07, subdivision (a), and justifying a three-year sentence enhancement under Health and Safety Code section 11370.2, subdivision (a).
Appellant pleaded no contest to the charges and admitted all of the special allegations contained in the information. Appellant’s pleas and admissions were made pursuant to a plea bargain that provided for a specified sentence of nine years in state prison, with credit for time served. Without the plea bargain, appellant faced a maximum term of 19 years 8 months.
During the plea colloquy, appellant initially questioned the validity of his February 2001 conviction for possession of cocaine base for purchase or sale (Health & Saf. Code, § 11351.5), although he ultimately admitted having suffered the conviction. Appellant’s trial counsel stipulated that there was a factual basis for his client’s pleas and admissions based upon counsel’s review of the police report, the preliminary hearing transcript, and appellant’s rap sheet.
After setting the matter for sentencing, the trial court stated, “No probation report.” At a subsequent sentencing hearing, the court proceeded to sentence appellant without a probation report. At no time did appellant’s trial counsel object to the absence of a probation report.
Appellant was categorically ineligible for probation as a result of his prior conviction for violating Health and Safety Code section 11351.5. (Pen. Code, § 1203.07, subd. (a)(11).) His admission of a prior strike under California’s Three Strikes Law also rendered him ineligible for probation. (Pen. Code, § 667, subd. (c)(2).)
Consistent with the terms of the plea bargain, the court sentenced appellant to serve nine years in state prison. Immediately following the court’s pronouncement of sentence, appellant asked to address the court, claiming it was his understanding he would be charged for only one narcotics count and that he would have the opportunity to file a motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court dismissed appellant’s contention, pointing out that appellant had agreed to a sentence of “nine years, no more, no less,” and had never raised the issue of a Romero motion. Notwithstanding appellant’s claimed misunderstanding about the terms of his plea, there is no indication in the record that appellant sought to vacate his plea.
Appellant filed a timely notice of appeal. He did not request a certificate of probable cause or otherwise indicate that his appeal challenges the validity of the plea.
Discussion
Preparation of a probation report is mandatory in all felony cases in which the defendant is eligible for probation. (Pen. Code, § 1203, subd. (b)(1).) When, as here, a defendant is ineligible for probation, it is within the court’s discretion to request a probation report for purposes of sentencing. (Pen. Code, § 1203, subd. (g); People v. McClure (1987) 191 Cal.App.3d 1303, 1306.)
Appellant contends the trial court abused its discretion by sentencing him without the benefit of a probation report. He asserts it was incumbent upon the court to order a probation report and conduct a thorough review of his criminal history to ensure the plea agreement was appropriate, particularly in light of the uncertainty he initially expressed when asked to admit one of his prior convictions.
As a preliminary matter, the People argue that appellant’s failure to obtain a certificate of probable cause requires dismissal of the appeal. We agree.
Penal Code section 1237.5 “provides that a defendant may not take an appeal from a judgment of conviction entered on a plea of guilty or nolo contendere unless he has filed in the superior court a statement of certificate grounds, which go the legality of the proceedings, including the validity of his plea, and has obtained from the superior court a certificate of probable cause for the appeal. [Citation.]” (People v. Mendez (1999) 19 Cal.4th 1084, 1095.)
Penal Code section 1237.5 states: “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an 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.”
“The purpose for requiring a certificate of probable case 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 reviewing court.’ [Citations].” (People v. Panizzon (1996) 13 Cal.4th 68, 75-76.)
Despite the broad language of Penal Code section 1237.5, two types of issues may be raised on appeal following a guilty or no contest plea without the need for a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b)(4); People v. Panizzon, supra, 13 Cal.4th at pp. 74-75.) These “noncertificate” grounds include “search and seizure issues” and “issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.” (Ibid.)
The requirements of Penal Code section 1237.5 are applied in a strict manner. (People v. Mendez, supra, 19 Cal.4th at p. 1098.) If a defendant who has pleaded guilty or no contest raises only so-called “certificate” grounds on appeal and has not obtained a certificate of probable cause, we may not proceed to the merits of the appeal but must instead order its dismissal. (Id. at p. 1099.)
“In determining whether [Penal Code] section 1237.5 applies to a challenge to a sentence imposed after a plea of guilty or 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.]” (People v. Panizzon, supra, 13 Cal.4th at p. 76.) In People v. Panizzon, supra, 13 Cal.4th 68, the defendant pleaded no contest in exchange for a specified sentence. (Id. at p. 73.) On appeal, he challenged his sentence as unconstitutional because it was disproportionate to the sentences imposed upon his codefendants. (Id. at p. 74.) He claimed it was unnecessary to obtain a certificate of probable cause to challenge the bargained-for sentence because his claim of error was based on events occurring after entry of the no contest plea. (Id. at p. 78.) The Supreme Court disagreed, reasoning that “a challenge to a negotiated sentenced imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself.” (Id. at p. 79.) “[T]he 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 [Penal Code] section 1237.5. [Citation.]” (People v. Panizzon, supra, 13 Cal.4th at p. 76.)
“[W]here the terms of the plea agreement leave issues open for resolution by litigation, appellate claims arising within the scope of that litigation do not attack the validity of the plea, and thus do not require a certificate of probable cause.” (People v. Buttram (2003) 30 Cal.4th 773, 783.) For a claim to be cognizable on appeal without the need for a certificate of probable cause, it must concern an issue that was left open by the terms of the plea.
Here, appellant’s sentence was a negotiated term of his plea agreement, which left no issues open for resolution. His appeal amounts to an attack on the plea itself because he seeks to afford the trial court an opportunity to reject the sentence to which he agreed as part of his plea bargain. Appellant was required to obtain a certificate of probable cause before pursuing his claim of error.
Appellant contends otherwise, claiming that he does not seek to vacate his plea but instead merely challenges the court’s failure to request a probation report before sentencing him. As support for his position, appellant relies upon People v. Osorio (1987) 194 Cal.App.3d 183 (Osorio). In that case, the defendant claimed he received ineffective assistance of counsel because his trial attorney refused to file a motion to withdraw the plea. The court held that a certificate of probable cause was not required to pursue the issue on appeal, reasoning that the appeal attacked counsel’s failure to file a motion to withdraw the plea—an event occurring after the plea—but did not require the court to pass on the validity of the guilty plea itself. (Id. at p. 187.)
Appellant’s reliance on Osorio is misplaced. The reasoning employed in that case was disapproved by the Supreme Court in People v. Panizzon, supra, 13 Cal.4th at p. 76, which emphasized that it is the substance of the appeal, and not the timing or manner of the decision challenged on appeal, that dictates whether a certificate of probable cause is required. In Osorio, the validity of the defendant’s claim of ineffective assistance of counsel was ultimately dependent upon the validity of the guilty plea itself. Hence, “[i]n substance, the claim of error was an attack on the plea itself” and “a certificate of probable cause should have been required.” (People v. Emery (2006) 140 Cal.App.4th 560, 565.)
The Third District Court of Appeal’s analysis in People v. Emery, supra, 140 Cal.App.4th 560, is instructive. There, the defendant claimed the trial court abused its discretion by refusing to continue the sentencing hearing to permit defense counsel to investigate whether grounds existed for a motion to withdraw the plea. (Id. at p. 562.) Relying upon Osorio, the defendant claimed a certificate of probable cause was unnecessary because his challenge was to the decision denying his opportunity to be heard and not to the validity of the plea. (People v. Emery, supra, 140 Cal.App.4th at p. 565.) The court disagreed, reasoning that the sole purpose for a continuance was to allow defense counsel to investigate whether there were grounds to withdraw the plea. “Thus, in substance, the motion was a challenge to the validity of the plea and admissions.” (Ibid.)
Here, the sole reason to order a probation report would have been to determine whether grounds existed for the trial court to withdraw its approval of the plea. Thus, appellant’s challenge to the decision not to order a probation report amounts to an attack on the plea itself. The failure to obtain a certificate of probable cause is therefore fatal to the appeal.
Even if appellant had obtained a certificate of probable cause, there would still be ample grounds to reject his claims of error on appeal. As appellant concedes, he waived his claim by failing to object at trial when the court proceeded to sentence him without the benefit of a probation report. (See People v. Llamas (1998) 67 Cal.App.4th 35, 38-39.) Further, appellant has not established that the trial court abused its discretion by foregoing a probation report. Although he claims his initial questioning of a prior conviction made it “incumbent upon the court” to order a probation report to clarify his criminal record, he did not persist in his assertions and readily admitted the prior conviction—twice. Further, his defense counsel stipulated to a factual basis for the pleas and admissions based on counsel’s review of appellant’s rap sheet. Under the circumstances, there is no reason to believe a probation report would have resulted in a meaningful clarification of appellant’s criminal record.
Disposition
The appeal is dismissed.
We concur: Siggins, J., Jenkins, J.