Opinion
H048521
01-04-2022
THE PEOPLE, Plaintiff and Respondent, v. TERRELLE D WAYNE HALL, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. B1899530
LIE, J.A judge denied defendant Terrelle Dwayne Hall's request for pretrial mental health diversion. (Pen. Code, § 1001.36.) When a second judge indicated a willingness to impose the specific term of imprisonment Hall requested, Hall pleaded no contest to second degree robbery (§ 212.5, subd. (c)) and attempted second degree robbery (§§ 212.5, subd. (c), 664), and admitted various sentencing enhancements. Sentenced as requested, Hall appeals from the denial of pretrial diversion but did not obtain a certificate of probable cause from the trial court. Because the record establishes that Hall's appeal in substance challenges only the validity of his plea, we dismiss the appeal for want of a certificate of probable cause.
Unspecified statutory references are to the Penal Code.
I. BACKGROUND
We derive our factual summary from the probation report's account of a report prepared by the Sunnyvale Department of Public Safety.
On August 20, 2018, Hall went to a bank, gave a teller a note, then left empty-handed after the teller pressed the panic button. Later that day, Hall went to another bank and handed a teller a note demanding cash. This teller gave Hall $5,210.
B. The Complaint
On September 13, 2018, the Santa Clara County District Attorney's Office filed a felony complaint charging Hall with second degree robbery (§ 212.5, subd. (c); count 1) and attempted second degree robbery (§§ 212.5, subd. (c), 664; count2). The complaint alleged that Hall had a prior conviction for robbery subjecting him to sentencing enhancements under (1) section 667, subdivision (a) (Proposition 8 prior), (2) section 1170.12 (strike prior), and (3) as to count 1 of the complaint, section 667.5, subdivision (a) (prison prior).
C. Request for Pretrial Mental Health Diversion
On May 26, 2020, Hall filed a request for pretrial mental health diversion under section 1001.36, which the People opposed. Three days later, the trial court held a hearing on Hall's request. After considering the parties' arguments, the trial court denied Hall's request for pretrial mental health diversion after concluding that he would pose an unreasonable risk of danger to public safety if treated in the community.
D. The Plea and Sentencing
On June 9, 2020, Hall sought a different judge's consideration of a sentence of five years and four months in prison in return for a plea as charged. Over the prosecution's objection, the court indicated its willingness to impose the requested sentence by dismissing the Proposition 8 prior at sentencing. Hall entered an open plea of no contest to second degree robbery (§ 212.5, subd. (c)) and attempted second degree robbery (§§ 212.5, subd. (c)(5), 664). He also admitted the allegations of a strike prior and Proposition 8 prior. The following was indicated on Hall's waiver of rights and plea form, Judicial Council Form CR-101, under "Other Terms": "Court offer - 5 yr, 4 mo [¶] striking Prop. 8."
Hall did not admit the prison prior as part of his plea, and the prosecution did not object to the omission.
On October 2, 2020, the trial court sentenced Hall as indicated, imposing a term of two years for the robbery, doubled to four years due to his strike prior (§ 667, subd. (e)(1)), and a consecutive term of eight months, for attempted robbery, doubled to 16 months. The trial court dismissed the Proposition 8 prior (§ 667, subd. (a)) under section 1385. At no time during the sentencing hearing did Hall ask the trial court to reconsider his request for pretrial mental health diversion.
Hall timely appealed without obtaining a certificate of probable cause. His notice of appeal characterized his appeal as "based on the sentence or other matters occurring after the plea that do not affect the validity of the plea. (Cal. Rules of Court, rule 8.304(b).)"
II. DISCUSSION
For a defendant to appeal from a conviction obtained by a plea of guilty or nolo contendere, section 1237.5 requires the defendant's showing of "reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings" (id, subd. (a)) and the trial court's certification that probable cause for those grounds exists (id., subd. (b))." 'In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, .. . "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.' [Citations.]" (People v. Buttram (2003) 30 Cal.4th 773, 781-782 (Buttram), first italics added; see also Cal. Rules of Court, rule 8.304(b)(4).)
Hall in his opening brief challenges the trial court's denial of mental health diversion based on a determination that he posed an unreasonable risk of danger to public safety under section 1001.36, subdivision (b)(1)(F). A grant of diversion suspends the prosecution of criminal charges, and a defendant who successfully completes diversion is entitled to have his or her charges dismissed. (§ 1001.36, subds. (c) & (e).) Moreover, participation in diversion may not be conditioned on the defendant's admission of guilt. (§ 1001.3.) It follows, then, that Hall would not have entered any plea of no contest-let alone one conditioned on a multi-year term of imprisonment-but for the denial of his request for diversion. His claim that this denial was in error is by implication a claim that his subsequent plea was induced by the error and therefore invalid when entered. (See People v. Padfield (1982) 136 Cal.App.3d. 218, 227 [wrongful denial of pretrial diversion under former section 1001 et seq. "implicate[s] 'other grounds going to the legality of the proceedings' "].) Accordingly, his appeal is subject to section 1237.5's requirement of a certificate of probable cause.
Replying to the Attorney General's contention that section 1237.5 forecloses all review, however, Hall argues that his appeal also extends to the sentencing judge's discretionary imposition of its indicated sentence without reconsidering Hall's eligibility for diversion. Hall accordingly asserts that section 1237.5 has no application here.
As a threshold matter, however, Hall's framing of diversion eligibility under section 1001.36 as a sentencing issue presumes that the availability of "pretrial" diversion-"at anytime prior to adjudication" (§ 1001.36, subd. (c))-extends beyond his entry of plea. Hall's premise is not a settled one. The Fourth Appellate District has held that a request for mental health diversion is untimely if made after entry of a guilty plea (People v. Rodriguez (2021) 68 Cal.App. 5th 584), review granted Nov. 10, 2021, S270895) or after the commencement of trial (People v. Braden (2021) 63 Cal.App.5th 330, review granted July 14, 2021, S268925). In contrast, the Second Appellate District has held that "a request for 'pretrial diversion' under section 1001.36 is timely only if it is made prior to the jury's guilty verdict." (People v. Graham (2021) 64 Cal.App.5th 827, 833, review granted Sep. 1, 2021, S269509.) The Third Appellate District has held that a request for mental health diversion is not untimely if made after a guilty verdict but before sentencing. (People v. Curry (2021) 62 Cal.App.5th 314 (Curry), review granted July 14, 2021, S267394.)
Irrespective of how our Supreme Court resolves this pure question of law, the record here supports our determination that Hall's "challenge to the sentence is in substance a challenge to the validity of the plea." (Buttram, supra, 30 Cal.4th at p. 782.)
Hall first sought consideration for mental health diversion weeks before there was any indication that he was exploring resolution of his case by plea. Indeed, his application for mental health diversion referred to section 1001.36 as a "pre-plea" alternative and confirmed his intention to waive his right to a speedy trial. After his request for mental health diversion was denied, there was no indication that he sought to have the next judge at the plea hearing reconsider eligibility for relief under section 1001.36-whether "pretrial" or as a post-plea deferral of entry of judgment. Instead, before Hall entered his plea of no contest, his counsel requested an indicated sentence of five years and four months and proposed the specific mechanism-dismissal of the Proposition 8 prior-by which the trial court could achieve that sentence. Hall then entered his plea in express reliance on this "court offer" without any hint of an intention or belief that the disputed issue of diversion eligibility-or even any sentence less than the specified prison term-remained before the court as a sentencing issue to be litigated. At sentencing, he offered no argument and made no requests: the trial court restated its intention to impose the sentence previously indicated, and Hall's counsel merely asked for clarification of custody credits and the amount of restitution, while indicating Hall's inability to pay fines and fees. Hall himself made no comment, but six days later filed this appeal.
On this record, it would appear that both Hall and the trial court understood that his plea of no contest as charged was conditioned only on his receiving the requested sentence of imprisonment, not on suspension of the proceedings under section 1001.36. Had Hall intended for the trial court to exercise its sentencing discretion otherwise, nothing in the record furnishes reason to doubt that he would have made that further request on the record, whether in negotiation of the indicated sentence, in the plea colloquy, or at the sentencing hearing. Absent such a request, to recast his claim on appeal as one of error by the sentencing court would presuppose not merely that diversion continues to be available post-plea, but that a trial court has an obligation to either consider diversion sua sponte or to treat a pre-plea request as a continuing one to be revisited without a defendant's renewal of that request. Nothing in Hall's briefing furnishes authority for shifting this burden to the trial court.
Hall's reliance on the First Appellate District's recent decision in People v. Hill (2021) 59 Cal.App. 5th 1190 (Hill) is unavailing. In. Hill, the defendant entered an open plea and admitted a probation violation; at the sentencing hearing, the trial court ultimately imposed the maximum sentence. (Id. at pp. 1193-1194.) On appeal, the defendant argued that his trial counsel was ineffective for failing to litigate his eligibility for pretrial mental health diversion under section 1001.36 and for failing to request a certificate of probable cause, if one were required. (Ibid.) The appellate court affirmed, concluding on the latter point that trial counsel need not have obtained a certificate of probable cause because the defendant's claim of ineffective assistance of counsel did not "attack the validity of his plea and instead challenge[d] the trial court's sentencing discretion relating to the application of section 1001.36." (Id. at p. 1195.)
In reaching this conclusion, the Hill court quoted Buttram, supra, 30 Cal.4th at pp. 790-791:" '[A] certificate of probable cause is not required to challenge the exercise of individualized sentencing discretion within an agreed maximum sentence. Such an agreement, by its nature, contemplates that the court will choose from among a range of permissible sentences within the maximum, and that abuses of this discretionary sentencing authority will be reviewable on appeal, as they would otherwise be. Accordingly, such appellate claims do not constitute an attack on the validity of the plea, for which a certificate is necessary.'" (Hill, supra, 59 Cal.App. 5th at p. 1195.)
Hill is distinguishable. Hall makes no allegation that his counsel was ineffective, given his counsel's obvious efforts to secure mental health diversion for him. And when those efforts proved unsuccessful, Hall received the very sentence he asked for in entering his plea, unlike the defendants in both Hill and Buttram. (Hill, supra, 59 Cal.App. 5th at p. 1194; Buttram, supra, 30 Cal.4th at pp. 777, 779.) In this circumstance, we are hard pressed to discern a claim of error relating to the trial court's exercise of sentencing discretion.
We also must decline Hall's suggestion that, notwithstanding our conclusion that a certificate of probable cause is required, we may still reach the merits of his claims. In support of his proposition, Hall relies on section 1259, People v. Allgood (1976) 54 Cal.App. 3D 434, and the California Constitution, article VI, section 13. Butthese authorities govern our review of the merits: section 1259 and Allgood generally describe the scope of appellate review, and article VI, section 13 of the California Constitution provides the standard for reversible error. None of these authorities permit us to disregard section 1237.5's procedural requirement for perfecting an appeal in the first instance. Moreover, even assuming sections 1259 and 1237.5 could be said to conflict, section 1237.5 is the more specific provision: "A specific provision relating to a particular subject will govern a general provision." (People v. Tanner (1979) 24 Cal.3d 514, 521; People v. Moore (2011) 51 Cal.4th 1104, 1121.) Section 1237.5 "lays down a 'condition precedent' to the taking of an appeal within its scope. [Citation.] It is a general 'legislative command' to defendants. [Citation.] It is not an authorization for 'ad hoc dispensations' from such a command by courts." (People v. Mendez (1999) 19 Cal.4th 1084, 1098 (Mendez).)
Accordingly, we conclude that under the specific factual circumstances of this case, a certificate of probable cause was required for Hall to challenge the trial court's pre-plea denial of his request for mental health diversion. Because Hall has failed to obtain a certificate of probable cause, we must dismiss his appeal. (See Mendez, supra, 19 Cal.4th at p. 1096.)
III. DISPOSITION
The appeal is dismissed.
WE CONCUR: GREENWOOD, P.J., DANNER, J.