Opinion
NOT TO BE PUBLISHED
CONSOLIDATED APPEALS from a judgment of the Superior Court of San Diego County No. SCD206179, SCD206665, Howard H. Shore and Charles G. Rogers, Judges.
McCONNELL, P. J.
I.
INTRODUCTION
In San Diego County Superior Court case No. SCD206665, a jury convicted Norman Eugene Cluke of one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and found true a companion allegation that he personally used a deadly weapon (§ 1192.7, subd. (c)(23)). The jury also convicted him of one count of making a criminal threat (§ 422) and one count of attempting to dissuade a witness by force or threat (§ 136, subd. (c)(1)). In addition, he admitted having five prior prison convictions and the trial court found true an allegation he had a prior strike conviction.
Further statutory references are to the Penal Code unless otherwise stated.
In San Diego County Superior Court case No. SCD206179, Cluke pleaded guilty to one count of failing to register as a sex offender. (§ 290, subd. (g)(2).) He also admitted having one prior strike conviction. (§§ 667, subds. (b)-(i), 668, 1170.12.) In exchange for Cluke's guilty plea, the People agreed to the trial court's dismissal of another count of failing to register as a sex offender and five prior prison conviction allegations.
The trial court consolidated the sentencing hearing for both cases. After denying Cluke's motion to dismiss the prior strike conviction allegation, the trial court sentenced Cluke to an aggregate term of 14 years and four months in prison.
On appeal, Cluke argues the trial court deprived him of his constitutional right to due process of law and effective assistance of counsel by refusing to replace his trial counsel despite an irreconcilable breakdown in their communications. In addition, he argues the trial court and his trial counsel deprived him of his constitutional right to testify on his own behalf. Finally, he argues the trial court's refusal to replace his trial counsel rendered his guilty plea to failing to register as a sex offender involuntary. We affirm the judgment.
II.
We omit a summary of the facts underlying Cluke's convictions as they are not relevant to the issues Cluke raises on appeal.
A. Trial Court's Decision Not to Replace Attorney Puglia as Trial Counsel Did Not Deprive Cluke of Due Process of Law or Effective Assistance of Counsel
1. Factual Background
The record shows several attorneys represented Cluke in the trial court and that he was dissatisfied with most, if not all, of them.
a. Cluke's Dissatisfaction With His Legal Representation Prior to Attorney Puglia
(1) Attorney Marcotte
Attorney Megan Marcotte from the public defender's office initially represented Cluke. On the day of the preliminary hearing, within 14 days after Marcotte's representation began, Cluke requested substitution of counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Cluke told the trial court he had spoken with Marcotte's supervisor the day before the preliminary hearing and her supervisor purportedly told him he had a 95 percent chance of returning to prison because of his recidivism. Her supervisor's remarks made him uncomfortable with her representation of him. More particularly, he concluded from her supervisor's remarks she would not fight as well as a retained attorney and would rush his case through the system. He also believed she did not provide him with a copy of the police report as quickly as she should have and was not truthful with him about the reasons for the delay.
The trial court found Cluke's concerns did not provide a sufficient basis for replacing Marcotte and denied the motion. Cluke then indicated, "If she is willing to work for me, I don't mind. I don't mind sitting next to her. But, if she's willing to do the things that need to be done. You know, there's a lot of questions need to be asked, a lot of the people need to be talked to."
The court expressed its confidence in Marcotte's abilities, stating it had "no reason to believe that she wouldn't give it her all." Nonetheless, the court explained to Cluke, "she is going [to] have to be realistic with you as the case goes along as she evaluates the case, and if there were an offer, help you understand the nature of the offer and its pluses and minuses. [¶] So because you think something should be done doesn't necessarily mean it should be done." The court further explained that simply because she gives a response different than what he wants to hear does not mean her response is wrong.
(2) Attorney Semco
A few weeks after the preliminary hearing, the public defender's office declared a conflict and the court appointed an attorney from the alternate public defender's office to represent Cluke. The next month, for reasons not reflected in the record, David Semco, a private conflicts counsel panelist, began representing Cluke.
Approximately four months later, Cluke requested a Marsden hearing and sought Semco's removal from the case. During the hearing, Cluke shared a letter he had written to the district attorney around the time Semco began representing him in this case, complaining about Semco's representation of him in another case 27 years earlier. He believed Semco gave him bad advice in the prior case, which resulted in him spending 11 years in prison. In addition, Cluke complained that Semco was not visiting him enough to properly prepare a defense in this case and, when Semco did visit, they spent most of the time arguing. Cluke was concerned that if Semco did not represent him properly, he would be "railroaded up the road."
Semco acknowledged there had been an unusual amount of acrimony between the two of them. He also acknowledged he had inadvertently destroyed his file from his earlier representation of Cluke, which included documents potentially useful in this case since the district attorney's office charged the earlier case as a prior strike conviction in this case. However, he explained none of the acrimony between the two related to his prior representation of Cluke. Rather, it related to Cluke's perceived defects in Semco's character and professionalism. Cluke was convinced Semco was not handling this case right and, in Semco's view, the resulting acrimony had crippled the defense of the case. He informed the court, "the relationship between us has deteriorated so much that we can't get any work done."
The court asked Semco whether there was "an irreconcilable conflict between you and your client that you feel you can't provide adequate representation?" Semco replied, "Absolutely, no doubt about it." The court indicated it would not "second-guess" him and relieved him. The court then admonished Cluke, "[I]t is your job to get along with your lawyer. They are going to come in and give you advice. Some of the advice you may not like. Do you understand? So I'm going to grant your request this time and get you a new lawyer. I'm not going to play a merry-go-round with lawyers. Do you understand?" Cluke objected to any suggestion he was "playing a merry-go-round" to which the court responded, "I just want to make clear to you I don't lightly substitute lawyers in and out of cases."
b. Cluke's Dissatisfaction With His Representation by Attorney Puglia
After relieving Semco, the trial court appointed Frank Puglia, a private conflicts counsel panelist, to represent Cluke. When Puglia received the case, Cluke was believed to have two prior strike convictions. Puglia determined and subsequently persuaded the district attorney's office that Cluke only had one prior strike conviction, a development obviously beneficial to Cluke.
Notwithstanding Puglia's success on Cluke's behalf, approximately five months after commencing representation of Cluke, Puglia moved to withdraw as Cluke's counsel on the ground there had been a breakdown in his relationship with Cluke. In a declaration included with the motion, Puglia stated that from the time he was appointed to the case, Cluke frequently and continually sent letters to him, his investigator and the private conflicts counsel office alleging he was on the prosecution's side, he did not care about the case, he refused to work on the case, and he was trying to force Cluke to plead guilty. Each time Cluke sent a letter, Puglia, his investigator, or both of them visited Cluke to discuss the allegations, assure him the allegations were not true, and make Cluke comfortable with Puglia's representation.
Despite Puglia's repeated assurances, in a meeting just before his trial, Cluke again accused Puglia of being on the prosecution's side, of not caring about the case, and of trying to force him to plead guilty. In addition, the two disagreed about the presentation of certain testimony and evidence, which Puglia believed would be detrimental to the case and could possibly lead to admission of perjurious statements. Cluke told Puglia he wanted another attorney to represent him and wanted a second opinion about his case. He stopped listening to Puglia and refused to speak with Puglia about the case or the trial.
Puglia's motion to withdraw also included a declaration from Puglia's investigator, Peter Barranco. According to Barranco's declaration, within a few weeks after Puglia began representing Cluke, Barranco received a letter from Cluke stating Cluke was "not digging" Puglia as his lawyer. Puglia and Barranco met with Cluke the next day and left the meeting believing they had resolved Cluke's concerns.
A few weeks later Cluke wrote a letter accusing Puglia of "trying to send him to prison for the D.A." Cluke also wrote that if Puglia did not want to fight the case, he could remove himself. Cluke further threatened to disrupt the court proceedings if Puglia is "not 100% fighting my case."
Approximately a month later, Cluke wrote a letter stating he did not trust or believe in Puglia. He accused Puglia of not doing his job and of siding with the prosecution because they had "another [racial epithet] to hang." Two days later, Barranco and Puglia met with Cluke. Puglia responded to Cluke's accusation and it appeared to Barranco the two had resolved the racial issue.
However, approximately six weeks later, Cluke wrote a letter criticizing "the bias [sic] court system" and lamenting the lack of communication between himself and Puglia. He once again accused Puglia of colluding with the prosecution to send "another innocent [B]lack man to prison."
Two weeks later, Barranco and Puglia met with Cluke to discuss the trial. Cluke was on edge from the start and became argumentative as the meeting progressed. He complained that Puglia did not know his side of the story and he persisted in his desire to testify against Puglia's advice. He requested a second opinion about his case. The meeting deteriorated until there was no longer any communication occurring and ended after Cluke threatened to dismiss Puglia as his attorney.
On the date of the motion hearing, the court inquired of Cluke, "[W]hen we began speaking this afternoon, it was your lawyer's motion to withdraw as counsel. In some remarks that you addressed to me, I got the sense as well that you wanted him not to be your lawyer; is that correct?" Cluke replied, "Exactly." Consequently, the court determined the most appropriate way to address the matter was by conducting a Marsden hearing, encompassing both Cluke's Marsden motion and Puglia's motion to withdraw.
After clearing the courtroom, the court asked Cluke why he wanted Puglia replaced. Cluke acknowledged Puglia is a good lawyer, but he disagreed with Puglia's recommendations to accept a plea bargain requiring him to serve six years and eight months in prison and not to testify at trial. Based on these recommendations, he believed Puglia was not working in his favor and was instead working with the district attorney. Cluke also expressed dissatisfaction with the justice system. More particularly, he believed the district attorney's office wanted him incarcerated simply because of his past and not because of his guilt in this case and was, therefore, improperly influencing all of his appointed defense attorneys.
When the court inquired of Puglia, Puglia stated he believed he and Cluke had a personality conflict and "came off on the wrong foot right from the beginning" because he is brutally honest with clients and will not tell them what they want to hear. Puglia thought Cluke might be better off with a more tactful or more passive attorney.
Before the Marsden hearing, as the trial court was deciding how and at what point in its calendar to handle the matter, the trial court asked Puglia if he thought Cluke would be any more cooperative with another appointed attorney. Puglia responded affirmatively. However, he based his response on a mistaken understanding that Cluke had worked well with Semco and that Semco was replaced because of a conflict of interest. During the Marsden hearing and after Puglia had learned Semco was replaced at Cluke's request, Puglia expressed "hope" that Cluke would work better with another attorney.
Puglia further acknowledged Cluke's belief he and the district attorney were "trying to hang a Black man." In Puglia's view, the importance of Cluke's belief that he was "in cahoots" with the district attorney was that it prevented Cluke from accepting his opinions, advice, and strategies. Consequently, Puglia thought their communication and trust had deteriorated irreparably.
After listening to Cluke's and Puglia's remarks, the court reviewed the case history, including the fact there had been two prior Marsden hearings. The court then considered whether Puglia was providing ineffective assistance and found Puglia was performing as "a highly effective lawyer." Finally, the court considered whether there was such an irreconcilable conflict that Cluke would essentially be deprived of counsel if the court did not remove Puglia. The court observed Cluke's "repeated unwillingness to cooperate with his lawyer [formed] the only possible basis for the substitution of counsel." However, the court found Cluke was "creating, by his own conduct, the personal conflict" because he simply did not like what Puglia was telling him. In addition, the court found Cluke had the power "to control whether that conflict exists, and he chooses not to because he's already shown that he can get another lawyer by just not listening to the one that he's got." Therefore, the court found Cluke's conduct was "willful, deliberate, and manipulative."
The court further explained, "If this were the first time Mr. Cluke was unhappy with his court-appointed counsel, I would be more inclined to think that it might just be a personality conflict and end the matter at that point. I don't see any reasonable likelihood that this is going to stop with the fourth, fifth or sixth lawyer appointed to Mr. Cluke." Accordingly, the court denied both Cluke's and Puglia's motions.
c. Cluke's Dissatisfaction With Other Attorneys
After the jury's verdict, the trial court appointed William Burgener, a private conflicts counsel panelist, to determine whether there was a basis for bringing a new trial motion. Burgener filed a new trial motion, arguing Cluke had been denied his constitutional right to testify on his own behalf. Following an evidentiary hearing, the trial court denied the motion. The court then convened a closed hearing with Puglia, Burgener, and Cluke. After the closed hearing, the court relieved Puglia and appointed Burgener to represent Cluke for all purposes.
We discuss the factual circumstances of this motion in detail in Part II.B.1.c., post.
A month after Burgener's appointment for all purposes, Cluke requested a Marsden hearing and sought to remove Burgener from the case. The trial court denied the motion.
At the recommendation of Appellate Defenders, Inc., we initially appointed Attorney John Edwards to represent Cluke in this appeal. Within two months of Edwards's appointment, Cluke sent Edwards a letter directed to this court seeking Edwards's removal. Cluke suggested Edwards would not effectively represent him because he was indigent and could not pay Edwards. He requested we appoint someone who would do a good job. Edwards forwarded the letter to Appellate Defenders and requested to be relieved. At Appellate Defenders's recommendation, we granted Edwards's request and appointed another attorney, who remains Cluke's appellate counsel.
2. Analysis
Cluke contends that because he and Puglia had an irreconcilable conflict causing the complete breakdown of their relationship, the trial court's refusal to replace Puglia before trial deprived him of due process of law and effective assistance of counsel. We conclude there is no merit to this contention.
Cluke also contends the trial court confused the matter before it and mistakenly treated the matter as a Marsden motion rather than a motion by Puglia to withdraw. However, the record shows Cluke made a Marsden motion at the hearing on Puglia's motion to withdraw and the trial court decided to address the two matters simultaneously. We discern no error in the trial court's approach as the two matters required the trial court to exercise its discretion based on the same considerations. (See, e.g., People v. Michaels (2002) 28 Cal.4th 486, 522-523; People v. Jacobs (1972) 27 Cal.App.3d 246, 262-264.)
"[A]lthough an indigent defendant possesses a right under the Sixth Amendment to the assistance of court-appointed counsel, he or she does not have an unlimited right to require the trial court to discharge appointed counsel and appoint substitute counsel." (People v. Martinez (2009) 47 Cal.4th 399, 417.) The trial court must substitute appointed counsel " ' "in a situation where the record clearly shows that the first appointed counsel is not adequately representing the accused." ' [Citation.] Alternatively the trial court must substitute counsel where it is demonstrated that counsel and the defendant are embroiled in an irreconcilable conflict. [Citation.] The decision to substitute counsel is within the discretion of the trial court; this court will not find an abuse of discretion unless the trial court's failure to substitute counsel would ' " 'substantially impair' the defendant's right to effective assistance of counsel." ' " (People v. Gutierrez (2009) 45 Cal.4th 789, 803; People v. Abilez (2007) 41 Cal.4th 472, 487-488.) Cluke has not demonstrated an abuse of discretion in this case.
Cluke and Puglia offered three reasons for the trial court to replace Puglia: Cluke mistrusted Puglia and believed he was working against rather than for Cluke; Cluke and Puglia strongly disagreed about whether Cluke should testify and other tactical matters; and Cluke refused to communicate with Puglia. None of these reasons warranted Puglia's replacement.
The record shows Cluke held similar beliefs about Attorneys Marcotte and Semco.
The record reveals no justification for Cluke's mistrust of Puglia. To the contrary, the record shows Puglia had been ably representing Cluke and was obtaining good results for him. A defendant's unfounded mistrust of an appointed attorney does not establish a conflict requiring the attorney's removal. (People v. Crandell (1988) 46 Cal.3d 833, 860 (Crandell) ["[I]f a defendant's claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law."], overruled on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365; accord, People v. Jackson (2009) 45 Cal.4th 662, 688.)
Cluke's disagreement with Puglia's advice regarding whether to accept the prosecution's plea offer and whether to testify on his own behalf also did not establish a conflict requiring Puglia's removal. " 'Tactical disagreements between the defendant and his attorney do not by themselves constitute an "irreconcilable conflict." "... [C]ounsel is 'captain of the ship' and can make all but a few fundamental decisions for the defendant." [Citation.]' " (People v. Jackson, supra, 45 Cal.4th at p. 688; People v. Alfaro (2007) 41 Cal.4th 1277, 1320; see also People v. Freeman (1994) 8 Cal.4th 450, 481 [defendant's disagreement with counsel's advise regarding plea offers and possible guilty pleas is not a sufficient basis to substitute counsel]; People v. Williams (1970) 2 Cal.3d 894, 905 [disagreement over whether defendant should testify or other trial tactics does not require substitution of counsel unless it signals a breakdown in the attorney-client relationship of a magnitude that jeopardizes defendant's right to effective assistance of counsel].)
Lastly, the breakdown in communication between Cluke and Puglia did not establish a conflict requiring Puglia's removal because the record shows the breakdown was caused by Cluke's intransigence and failure to cooperate. (People v. Floyd (1970) 1 Cal.3d 694, 705; People v. Lindsey (1978) 84 Cal.App.3d 851, 860.) "[A] criminal defendant cannot willfully refuse to cooperate with his appointed attorney, thereby possibly hampering his own defense, and then claim he is entitled to a new attorney because counsel has not been effective." (People v. Roldan (2005) 35 Cal.4th 646, 682, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; accord, People v. Smith (2003) 30 Cal.4th 581, 606; People v. Michaels (2002) 28 Cal.4th 486, 522-523.) Moreover, "[a] trial court is not required to conclude that an irreconcilable conflict exists if the defendant has not made a sustained good faith effort to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness." (Crandell, supra, 46 Cal.3d at p. 860.) Given Cluke's serial Marsden motions, Cluke's expression of dissatisfaction with Puglia from the outset of their attorney-client relationship, and the lack of foundation for Cluke's mistrust of Puglia, the trial court reasonably determined Cluke had not made a sufficient effort to resolve his differences with Puglia. (Crandell, supra, 46 Cal.3d at p. 860; People v. Barnett (1998) 17 Cal.4th 1044, 1086.) Accordingly, we conclude the trial court did not abuse its discretion by declining to replace Puglia before trial.
Cluke faults the trial court for not reviewing the transcripts of the earlier Marsden hearings, arguing the trial court drew inaccurate conclusions from the mere fact the hearings occurred. Cluke cites no authority requiring the trial court's review of the transcripts. The transcripts, which we provided to the People with Cluke's consent, are summarized in Part II.A.1., ante. We conclude the trial court's review of the transcripts would not have altered the court's ruling as the transcripts show the conclusions it drew from the occurrence of the hearings were both accurate and prescient.
B. Trial Court and Trial Counsel Did Not Deprive Cluke of Constitutional Right to Testify on His Own Behalf
1. Factual Background
a. Midtrial Inquiry re: Right to Testify
Just before presentation of the defense case, the trial court granted Cluke's request to address the court directly. Cluke asked whether he could testify on his own behalf. He stated he felt the evidence was leaning toward the prosecution's version of events and his testimony was the only way the jury would learn "the real story." The court confirmed both that he had a right to testify and that the decision was his. However, the court told him his decision should be made after consulting with his counsel. In addition, the court explained that whether he decided to follow his counsel's advice was a matter between the two of them and it could not inquire about their discussions because of the attorney-client privilege. Cluke responded by affirming he understood what the court was telling him.
Cluke then expressed concern the jury might think he is guilty if he did not testify. The trial court explained that, if he did not testify, the jury would be instructed it could not consider that fact in its deliberations. The court further explained that, in its experience, jurors take the instruction seriously and follow it.
To assist Cluke in deciding whether to testify, the court ruled on some deferred evidentiary issues. Specifically, it determined the prosecution could impeach Cluke with two prior felony drug-related convictions if Cluke testified. The court also indicated that, depending on the substance of Cluke's testimony, the prosecution might be able to introduce evidence of prior threatening and violent behavior by Cluke.
After making these rulings, the trial court recessed to allow Cluke to confer privately with Puglia. Upon returning from the recess, the court reiterated that it was not going to inquire about the state of Cluke's desire to testify. The court also reiterated its earlier evidentiary rulings. The defense case proceeded and Cluke did not testify.
b. Postverdict Inquiry Re: Right to Testify
After the jury returned its verdicts, which included convictions on three counts and acquittals on five counts, the trial court asked Cluke whether he wanted to proceed with a jury trial on the prior conviction allegations. When Cluke did not respond to the court's question, the court indicated it would have to call the jury back in. Cluke then asked why he should talk since he was not allowed to talk the day before. The court reminded him he was told he had a right to testify. Cluke acknowledged this, but complained that he wanted to testify, Puglia did not want him to, and the court sided with Puglia. Puglia interjected that Cluke told the court he did not want to testify. Cluke replied that he had not told the court that, Puglia had.
A short time later, as the court was reviewing Cluke's prior convictions, Cluke again complained that the court denied him his right to testify, claiming he told the court he wanted to testify no matter what Puglia said. The court reminded Cluke it had informed Cluke the matter was between him and Puglia. Cluke said he told Puglia he wanted to testify and the court knew this as well. The court indicated it disagreed with Cluke's version of events and it needed to move forward.
c. Motion for New Trial
Cluke filed a motion for new trial, arguing he had been deprived of due process of law because he was not permitted to testify at trial on his own behalf. At the motion hearing, Cluke testified that, after the trial court ruled on what evidence the prosecution could use to impeach him, he told Puglia he wanted to testify. Although Puglia told him he was "committing suicide," he told Puglia he wanted to testify. He kept waiting to be called as a witness and then he heard closing arguments. He did not alert the court to the problem prior to the close of the defense case because he had already informed the court of his desire to testify and he did not think he should have to do so again.
Puglia testified that, before the trial, he and Cluke had discussed the possibility of Cluke testifying and Puglia did not think it was a good idea because of Cluke's prior record, prior bad acts, and volatile nature. In addition, Cluke wanted to testify the victim was selling drugs out of her home, which Puglia thought was of doubtful relevance and could tarnish Cluke by placing him at a home where drugs were being sold. Until Cluke raised the matter directly with the court during trial, Puglia thought Cluke was not going to testify. After Cluke raised the matter directly with the court, Puglia conferred with Cluke and told him that the case turned on the victim's credibility. Puglia also told Cluke that the jury knew nothing about Cluke's criminal background, but if he testified, the jury would hear a lot of prejudicial evidence. Cluke did not verbally respond, but nodded affirmatively. At the new trial motion hearing, Puglia recognized Cluke's nodding was ambiguous and could have simply meant Cluke understood what Puglia was telling him. However, at trial, Puglia assumed the nodding meant Cluke had decided not to testify and Puglia relayed this to the court at sidebar. Cluke did not express a desire to testify again until after the jury returned its verdicts.
The trial court denied the new trial motion, finding Cluke had not been denied due process of law. Specifically, the court noted Cluke knew he had a right to testify, he had no difficulty expressing himself to the court or to counsel, and after discussing the matter at length with his counsel, he did not demand the right to testify again until after the jury returned its verdicts. The court found Cluke's actions were consistent with a client who had accepted his attorney's advice not to testify and decided to raise the issue again because he disliked the jury's verdicts.
2. Analysis
Cluke contends his convictions must be reversed because Puglia and the trial court did not honor his requests to testify on his own behalf. We conclude there is no merit to this contention.
Although Cluke expressed a desire to testify before and during trial, the trial court found he decided not to do so after conferring further with Puglia. We defer to this factual finding as there is substantial evidence in the record to support it. (People v. Nesler (1997) 16 Cal.4th 561, 582.) Specifically, the record shows Cluke knew he had the right to testify and understood the decision to do so was his. In addition, the record shows Cluke had no difficulty speaking his mind to counsel and to the court. Finally, the record shows that Cluke knew the trial court was not going to initiate further discussions with him about the matter and, after the court permitted him to confer with counsel, Cluke never repeated his desire to testify until after the jury returned adverse verdicts. Since the record supports the trial court's finding that Cluke decided not to testify, Cluke has not established either his counsel or the trial court deprived him of his constitutional right to do so.
Cluke argues the trial court had a constitutional obligation to inquire of his desire to testify rather than rely on Puglia's representation because of the irreconcilable differences between the two. This argument ignores the trial court's factual finding that Cluke decided not testify. Furthermore, this argument is not supported by citation to any legal authority and is, therefore, forfeited. (People v. Hovarter (2008) 44 Cal.4th 983, 1029 [a court may treat a point forfeited and decline to consider it if the proponent has not supported the point with legal argument and citation to authorities].)
C. Appeal of Guilty Plea in Case No. SCD206179 Not Cognizable as Cluke Did Not Obtain a Certificate of Probable Cause
Defendant contends his guilty plea in case No. SCD206179 should be reversed because the trial court's failure to replace Puglia rendered the guilty plea involuntary. A defendant may not appeal a judgment of conviction based on a guilty plea unless the defendant has sought and obtained a certificate of probable cause from the trial court. (§ 1237.5; People v. Johnson (2009) 47 Cal.4th 668, 678 (Johnson).) There are two recognized exceptions to this requirement. A defendant is not required to obtain a certificate of probable cause to appeal a ruling on a search and seizure issue. (§ 1538.5, subd. (m); Johnson, supra, at p. 677). A defendant is also not required to obtain a certificate of probable cause if the defendant is challenging an error occurring at a post-plea hearing to determine the degree of the crime and the penalty to be imposed, provided the error does not implicate the validity of the plea agreement. (Johnson, supra, at p. 678.) If the post-plea error implicates the validity of the plea agreement, then a certificate of probable cause is still required. (Ibid.)
In this case, the parties do not dispute Cluke did not obtain a certificate of probable cause to challenge his guilty plea. As Cluke's challenge goes to the validity of his guilty plea and does not fall within one of the recognized exceptions to the requirement for a certificate of probable cause, we conclude the challenge is not cognizable on appeal and, consequently, we do not address the merits of it.
III.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES J., IRION J.