Opinion
A165379
03-01-2024
The PEOPLE, Plaintiff and Respondent, v. Lamar Duane ROBINSON, Defendant and Appellant.
Matthew J. Watts for Defendant and Appellant. Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey ?. Laurence, Senior Assistant Attorney General, Arthur P. Beever, Deputy Attorney General, Linda M. Murphy, Deputy Attorney General for Plaintiff and Respondent.
Trial Court: Sonoma County, Trial Judge: Hon. Troye Shaffer (Sonoma County Super. Ct. No. SCR7490361)
Matthew J. Watts for Defendant and Appellant.
Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant At- torney General, Jeffrey ?. Laurence, Senior Assistant Attorney General, Arthur P. Beever, Deputy Attorney General, Linda M. Murphy, Deputy Attorney General for Plaintiff and Respondent.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts 2 and 3.
Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Lamar Duane Robinson pleaded nolo contendere to two felonies pursuant to a negotiated plea agreement. In this appeal, he challenges the resulting judgment of conviction on three closely related grounds: (1) ineffective assistance of counsel (LAC), based on his attorney’s failure to request pretrial mental health diversion (Pen. Code, § 1001.36); (2) the trial court’s alleged violation of its purported sua sponte duty to consider Robinson’s eligibility for such diversion; and (3) the retroactive effect of recent amendments to the mental health diversion statute. In the published part of this opinion we reject Robinson’s claims for failure to procure a certificate of probable cause. The judgment is affirmed.
All undesignated statutory references are to the Penal Code. All "rule" references are to the California Rules of Court.
BACKGROUND
On March 2, 2022, Robinson pleaded no contest to, carrying a concealed dirk or dagger (§ 21310) and grand theft from person (§ 487, subd. (c)). He also admitted a prior serious or violent felony conviction under section 1170.12. After denying Robinson’s motion to strike the prior conviction, the trial court sentenced him to an aggregate term of five years and four months in state prison. Robinson filed his notice of appeal on May 26, 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.
([R]ule 8.304(b).)" There was no certificate of probable cause.
DISCUSSION
1. A Certificate of Probable Cause Is Required for Claims of Error Concerning Pretrial Mental Health Diversion Under Section 1001.36
[1] Robinson contends that no certificate of probable cause is required to raise his IAC claim. According to him, his counsel committed IAC by failing to request pretrial mental health diversion. We disagree.
"No appeal shall be taken by the defendant from a judgment of conviction upon a plea of … nolo contendere, … 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 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." (Rule 8.304(b).)
[2] Here, the appeal is from a judgment of conviction based on Robinson’s no-contest plea, but he lacks a certificate of probable cause. Consequently, Robinson argues that the appeal is based on the "sentence or other matters occurring after the plea …. " (Ibid.) However, our high court has recently clarified that a defendant is only eligible for pretrial mental health diversion " ‘until adjudication’ " (§ 1001.36, subd. (f)(1)) — a phrase that " ‘encompasses both a plea hearing and an adjudication by trial.’ " (People v. Braden (2023) 14 Cal.5th 791, 810, 308 Cal.Rptr.3d 846, 529 P.3d 1116 (Braden) italics added.) Thus, given 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." (Rule 8.304(b).) Raising that issue therefore requires a certificate of probable cause. For the same reason, a certificate of probable cause is also required for Robinson’s claim concerning the trial court’s purported sua sponte duty to consider mental health diversion.
[3] Seeking to escape the conclusion that his claims are barred for lacking a probable cause certificate, Robinson relies on People v. Hill (2021) 59 Cal.App.5th 1190, 274 Cal.Rptr.3d 153. There, our colleagues in Division Three of this court held that "no certificate of probable cause was required" for a similar IAC claim because it did "not attack the validity of [the] plea and instead challenge[d] the trial court’s sentencing discretion relating to the application of section 1001.36 …." (Id. at p. 1195, 274 Cal.Rptr.3d 153.) But after our Supreme Court decided Braden in the wake of Hill, such claims do not fall within any exception to the requirement for a certificate of probable cause. However much a more expansive reading of the phrase "until adjudication" might have to recommend it (Braden, supra, 14 Cal.5th at pp. 825–838, 308 Cal.Rptr.3d 846, 529 P.3d 1116. (dis. opn. of Evans, J.)), that ship has passed. As we read the law today, Braden implicitly abrogated Hill. Robinson’s appeal of his failure to receive mental health diversion under section 1001.36 thus fails for lack of a certificate of probable cause.
In light of Braden, there is also reason to doubt Hill’s conclusion that a claim of error concerning mental health diversion does not " ‘constitute an attack on the validity of the plea ….’ " Hill, supra, 59 Cal.App.5th at p. 1195, 274 Cal.Rptr.3d 153, quoting People v. Buttram (2003) 30 Cal.4th 773, 791, 134 Cal. Rptr.2d 571, 69 P.3d 420 (Buttram).) The IAC claim raised in this appeal illustrates why. Robinson argues that his counsel should have requested mental health diversion. Aided by Braden, it follows that such a request could only have been made before Robinson pleaded no contest, Therefore, if Robinson's counsel had successfully made the request contemplated by Robinson’s IAC claim, Robinson never would have entered that plea. Arguably, then, an IAC claim like Robinson’s "is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5." (Buttram, at p. 782, 134 Cal.Rptr.2d 571, 69 P.3d 420.)
2.–3.
See footnote *, ante.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
STREETER, ACTING P. J.
GOLDMAN, J.