Can I Appeal Without a Certificate of Probable Cause?

As the reader may be aware, someone who seeks appellate court review after a guilty or no contest plea must, generally speaking, obtain a certificate of probable cause to qualify the appeal as bona fide and being made in good faith. The request for a certificate of probable cause sets forth reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. Penal Code § 1237.5; California Rules of Court, Rule 8.304(b).

However, a few types of issues can be raised on appeal after a guilty or no contest plea without a certificate of probable cause. These fall into two general categories.

First, an appellant can challenge the denial of a motion to suppress illegally obtained evidence. Penal Code § 1538.5(m); People v. Kaanehe (1977) 19 Cal. 3d 1, 7-8, 136 Cal. Rptr. 409.

Second, an appellant can raise issues that arose after entry of the plea and do not challenge the plea’s validity. These include claims that the court or prosecutor violated the plea bargain. Santobello v. New York (1971) 404 U.S. 257, 261-262, 92 S. Ct. 495, 30 L. Ed. 2d 427 (constitutional due process right to enforce plea agreement); People v. Kaanehe (1977) 19 Cal. 3d 1, 11-12, 136 Cal. Rptr. 409 (prosecutor broke promise not to argue for a prison term); People v. Mancheno (1982) 32 Cal. 3d 855, 861-862, 187 Cal. Rptr. 441 (judge broke promise to order diagnostic study prior to deciding whether to impose prison term); People v. Olea (1997) 59 Cal. App. 4th 1289, 69 Cal. Rptr. 2d 722 (court violated reasonable expectation that no registration requirement for people with sex offenses would be imposed).

However, a defendant forfeits the right to challenge the sentence as exceeding the terms of the plea bargain if (a) the court advised the defendant per Penal Code § 1192.5 of the right to withdraw the plea if the court withdraws approval of the terms before sentencing and (2) the defendant did not object when the sentence was entered. People v. Villalobos (2012) 54 Cal. 4th 177, 182, 141 Cal. Rptr. 3d 491. It is important to understand that if plea negotiations do not address statutorily mandated requirements like restitution fines or parole terms, those penalties may violate the right to be advised of the direct consequences of the plea, but do not violate the terms of the plea bargain. People v. Villalobos (2012) 54 Cal. 4th 177, 185-186, 141 Cal. Rptr. 3d 491 (restitution fine of more than minimum amount); People v. Crandell (2007) 40 Cal. 4th 1301, 1308, 57 Cal. Rptr. 3d 349 (restitution fine); In re Moser (1993) 6 Cal.4th 342, 357, 24 Cal. Rptr. 2d 723 (length of parole term); People v. McClellan (1993) 6 Cal. 4th 367, 379-380, 24 Cal. Rptr. 2d 739 (sex offender requirement). Also, later changes in the law that change the impact of a plea do not violate the plea agreement. Doe v. Harris (2013) 57 Cal. 4th 64, 158 Cal. Rptr. 3d 290 (registration changes for people with sex offenses); People v. Gipson (2004) 117 Cal. App. 4th 1065, 1068-1070, 12 Cal. Rptr. 3d 478 (new laws related to recidivism).

In addition, if the plea bargain specifies a maximum sentence, the appellant may challenge the court’s sentencing errors or improper use of sentencing discretion even if the sentence is under that maximum. People v. Buttram (2003) 30 Cal. 4th 773, 134 Cal. Rptr. 2d 571.

In addition, an appellant can challenge the denial of a post-judgment motion to vacate the plea that was based on information obtained after entry of the plea (People v. Harvey (1984) 151 Cal. App. 3d 660, 663 n.2, 198 Cal. Rptr. 858; People v. Kaanehe (1977) 19 Cal. 3d 1, 8-9, 136 Cal. Rptr. 409) or a denial of a post-plea request for a new attorney (People v. Vera (2004) 122 Cal. App. 4th 970, 18 Cal. Rptr. 3d 896).

This article would not have been possible without the California Prison and Parole Law Handbook, written by the Prison Law Office in Folsom, California. We thank them for their work.