New When Can One Not Appeal After a No Contest Plea?

It is not uncommon for one to enter a plea of guilty or no contest and have the prosecutor or judge ask whether one waives the right to appeal as a condition of the plea.

Is this enforceable?  The answer is, as in most legal questions: it matters.  This article’s scope will only address conditions that one cannot appeal after a no contest or guilty plea.

By doing so, this article also seeks to give a general overview of if one can appeal a conviction or ruling after a guilty or no contest plea.  This is information that we think every criminal defense attorney should know and understand even if he or she is not a practicing appellate attorney.  We at Greg Hill & Associates, for example, do not regularly file appeals or writs.  Instead, we refer our clients to recommended experts in this area.  However, it is prudent to have the knowledge about appeals generally to recognize when an appeal is barred after a no contest or guilty plea.

It is true that a defendant who pleads guilty or no contest sometimes has a right to appeal, even if they specifically give up that right as part of the plea agreement.  The waiver will preclude the defendant from appealing any error made before or as part of the plea bargain. People v. Charles (1985) 171 Cal. App. 3d 552, 217 Cal. Rptr. 402; People v. Vargas (1993) 13 Cal.App.4th 1653 [17 Cal.Rptr.2d 445. 

However, unless the waiver specifically covers future errors, the person may still be able to appeal errors that occur after the plea. Vargas, supra, at 1661-1662; People v. Panizzon (1996) 13 Cal. 4th 68, 80-86, 51 Cal. Rptr. 2d 851.

However, in addition to the general rules for appeals, there are limits on the appeal issues that can be raised after a conviction by a guilty or no contest plea.  There are three categories: (1) issues that cannot be raised at all, (2) issues that can be raised only if the appellant gets a certificate of probable cause, and (3) issues that can be raised even without a certificate of probable cause.

Some issues cannot be raised on appeal if the defendant entered a guilty or no contest plea. People v. Hoffard (1995) 10 Cal. 4th 1170, 1177-1178, 43 Cal. Rptr. 2d 827.  There may be exceptions when a defendant can show that the trial court assured defendant that an issue would be preserved for appeal. People v. Haven (1980) 107 Cal. App. 3d 983, 986, 167 Cal. Rptr. 376; People v. Geitner (1982) 139 Cal. App. 3d 252, 188 Cal. Rptr. 486.

Issues that cannot be raised on appeal include complaints about procedural matters related to the charges, such as a delay in filing charges or prosecuting the case (People v. Hernandez (1992) 6 Cal. App. 4th 1355, 8 Cal. Rptr. 2d 324; People v. Hayton (1979) 95 Cal. App. 3d 413, 156 Cal. Rptr. 426; People v. Padfield (1982) 136 Cal. App. 3d 218, 226, 185 Cal. Rptr. 903), denial of a continuance (People v. Kaanehe (1977) 19 Cal. 3d 1, 8-9, 136 Cal. Rptr. 409), or refusal to sever charges from each other (People v. Haven (1980) 107 Cal. App. 3d 983, 986, 167 Cal. Rptr. 376; People v. Sanchez (1982) 131 Cal.App.3d 323, 182 Cal. Rptr. 430). 

The defendant also cannot raise issues that involve questions of guilt or innocence or most types of issues about the evidence the prosecution could have presented at trial. For example, the defendant cannot challenge denial of a motion to disclose an informant’s identity (People v. Hunter (2002) 100 Cal. App.4th 37, 42, 122 Cal. Rptr. 2d 229; People v. Castro (1974) 42 Cal. App. 3d 960, 965, 117 Cal. Rptr. 295; People v. Barkins (1978) 81 Cal. App. 3d 30, 33, 145 Cal. Rptr. 926), the unfairness of a pretrial line-up (People v. Stearns (1973) 35 Cal. App. 3d 304, 306, 110 Cal. Rptr. 777), or an illegally obtained confession (People v. DeVaughn (1977) 18 Cal. 3d 889, 896, 135 Cal. Rptr. 786; People v. Massey (1976) 59 Cal.App.3d 777, 780, 130 Cal. Rptr. 581) and cannot argue that there was insufficient evidence of the offense or of prior convictions that were admitted as part of the plea (People v. Batista (1988) 201 Cal. App. 3d 1288, 1291-1292, 248 Cal. Rptr. 46; People v. Warburton (1970) 7 Cal. App. 3d 815, 821, 86 Cal. Rptr.894; People v. Thomas (1986) 41 Cal. 3d 837, 844, 226 Cal. Rptr. 107; People v. Pinon (1979) 96 Cal. App. 3d 904, 910, 158 Cal. Rptr. 425).  

In addition, curiously, it is good to know that courts will not correct a sentence that is not authorized by the law, so long as the sentence was within the terms of a plea bargain from which the defendant received substantial benefits. People v. Hester (2000) 22 Cal. 4th 290, 92 Cal. Rptr. 2d 641; People v. Couch (1996) 48 Cal. App. 4th 1053, 56 Cal. Rptr. 2d 220; People v. Ellis (1987) 195 Cal. App. 3d 334, 240 Cal. Rptr. 708; People v. Otterstein (1987) 189 Cal.App.3d 1548, 235 Cal. Rptr. 108; People v. Jones (2013) 217 Cal.App.4th 735, 743, 158 Cal. Rptr. 3d 786.

This article would not have been possible without reference to the California Prison and Parole Law Handbook, authored by the Prison Law Office in Folsom California.  We wish to thank them for their outstanding contribution to legal education.