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Certificate of Probable Cause Unnecessary for 1001.36

The following summary focuses on Penal Code § 1237.5, which states that “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, except where defendant has obtained from the trial court a certificate of probable cause.”
The Gist of this Article: No certificate of probable cause is required under Penal Code § 1237.5 to file an appeal based on ineffective assistance of counsel in not seeking mental health diversion under Penal Code § 1001.36.
The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty or nolo contendere pleas.  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.”

In determining whether Section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts look to the substance of the appeal: “the crucial issue is what the defendant is challenging, the time or manner in which the challenge is made.  If the challenge is to the validity of the plea, 1237.5 applies."  People v. Buttram (2003) 30 Cal.4th 773, 781-782.

The California Supreme Court has explained that a plea in which the parties agree to a maximum sentence does not required a certificate of probable cause unless the defendant challenges the legal validity of the maximum sentence itself.  Buttram, supra, pp. 790-791.

A certificate of probable cause also is not required to challenge the exercise of individualized sentencing discretion within an agreed maximum sentence.  Accordingly, such appellate claims do not constitute an attack on the validity of the plea, for which a certificate is necessary.  Buttram, supra, at 777.

Court of Appeal First Appellate District San FranciscoCourt of Appeal First Appellate District San Francisco

In April of 2019 in Lake County Superior Court, Jason David Hill pleaded no contest to one count of carrying a concealed dirk or dagger (Penal Code § 21310), which carried a minimum sentence of 16 months and a maximum sentence of three years, and he admitted a violation of probation in another case.

Pursuant to a plea agreement, the parties agreed to a maximum, aggregate sentence of two years and eight months.  Exercising its discretion, the judge then imposed a midterm sentence of two years on the 21310 charge and eight months on probation violation.

Hill then appealed his sentence, claiming his attorney’s performance was ineffective assistance of counsel because he did not request a hearing to mental health diversion under Penal Code § 1001.36 for him. 

The DA, in opposing the appeal to the First Appellate District, argued that the appeal was procedurally barred because Hill failed to first obtain a certificate of probable cause.

The First Appellate District, in People v. Jason David Hill (2021 DJDAR 736) disagreed with the People, finding no such certificate of probable cause was necessary because Hill was not challenging the validity of the plea, but the length or terms of the sentence.

The appellate court’s opinion then offered two insights that are worth noting for their application in a broader context and this is why this summary is really offered.

First, the appellate court noted the requirements for mental health diversion and Mr. Hill’s extensive criminal history, as well as his multiple failures to successfully complete probation and stay out of jail.  Because of this, the appellate court found that Hill’s attorney had not erred in not requesting mental health diversion because there may have been a sound tactical reason for not requesting such diversion: the judge very likely would have denied such a request because Hill represented a danger to the public if afforded mental health diversion.

Second, Hill tried to introduce his extensive psychiatric records on appeal.  The First Appellate District refused to consider such new facts, commenting that on appeal, its review is limited to the record already introduced and it cannot consider new evidence like it could on a petition for a writ or habeas corpus.  We bring this point up because it is common for clients to seek to introduce new facts on an appeal, which is not allowed.  The proper way to bring in such new facts is only through a petition for a writ of habeas corpus.

The citation for the First Appellate District Court ruling discussed above is People v. Jason David Hill (1st App. Dist., 2021) 59 Cal. App. 5th 1190, 274 Cal. Rptr. 3d 153.

For more information about appeals and mental health diversion, please click on the following articles:
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