Summary
In Hill, the appellant contended his counsel rendered ineffective assistance for failure to request a hearing on his eligibility for pretrial mental health diversion.
Summary of this case from People v. EmbryOpinion
A157339
01-21-2021
The PEOPLE, Plaintiff and Respondent, v. Jason David HILL, Defendant and Appellant.
Jonathan Soglin, San Francisco, Stephanie Clark, Irvine, and Deborah Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano and Roni Dina Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part B of the discussion.
Jonathan Soglin, San Francisco, Stephanie Clark, Irvine, and Deborah Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano and Roni Dina Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
Jackson, J. INTRODUCTION
After pleading no contest to concealing a dirk or dagger and admitting this offense violated probation in another matter, the trial court sentenced Jason David Hill to an aggregate term of two years eight months in prison and revoked his probation. On appeal, Hill contends that his conviction and probation revocation should be conditionally reversed and the matter remanded because his attorney was ineffective for failing to request a hearing on his eligibility for mental health diversion under Penal Code section 1001.36.
All further statutory references are to the Penal Code.
The Attorney General argues that Hill's claim is barred for failure to obtain a certificate of probable cause and, in any event, the claim fails on the merits because Hill has not established that his counsel was deficient in failing to request an eligibility hearing or that he was prejudiced by counsel's failure to request such a hearing. As to the first contention, we disagree with the Attorney General that a certificate of probable cause was required to raise the mental health diversion issue. However, the second contention is well taken because Hill failed to establish either deficient performance or prejudice. Accordingly, we affirm the judgments sentencing Hill to state prison and revoking his probation.
BACKGROUND
A. Possession of Firearm (CR940896)
On June 1, 2016, pursuant to a negotiated disposition, Hill pleaded no contest to felony possession of a firearm by a convicted felon (§ 29800, subd. (a)) in case No. CR940896. The court suspended imposition of sentence and placed Hill on felony probation for three years.
B. Concealed Dirk or Dagger (CR953084)
We take the facts of the offense from the preliminary hearing, which formed the stipulated basis for Hill's plea.
On January 19, 2019, a Clearlake police officer noticed Hill outside of a liquor store. The officer went up to Hill, obtained his name, and walked away to conduct a records check. The records check revealed that Hill was on postrelease community supervision (PRCS). As the officer returned, Hill "produced" a knife and placed it on a pole in front of him. Hill said he needed the knife "for protection because he walks around in Clearlake at night." When asked where the knife came from, Hill "said he had it shoved down his sleeve."
Hill was actually on probation, not PRCS, at the time of the incident.
C. Plea and Sentencing
On April 10, 2019, Hill pleaded no contest to concealing a dirk or dagger (§ 21310) in case No. CR953084. As part of the plea, Hill admitted a probation violation in case No. CR940896. The plea was open with a maximum possible sentence of two years eight months. The trial court accepted Hill's admission and revoked his probation in case No. CR940896.
On May 13, 2019, the trial court sentenced Hill in case Nos. CR953084 and CR940896 to an aggregate term of two years eight months in prison.
Hill filed timely notices of appeal in both cases.
DISCUSSION
A. No Certificate of Probable Cause Required
The Attorney General contends Hill's appeal is barred for failure to obtain a certificate of probable cause. In response, Hill asserts that if a certificate of probable cause was required, it is a further example of ineffective assistance of counsel.
Section 1237.5 provides, "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 purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas. [Citations.] 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." [Citations.]
" ‘It has long been established that issues going to the validity of a plea require compliance with section 1237.5. [Citation.] Thus, for example, a certificate must be obtained when a defendant claims that a plea was induced by misrepresentations of a fundamental nature [citation] or that the plea was entered at a time when the defendant was mentally incompetent [citation]. Similarly, a certificate is required when a defendant claims that warnings regarding the effect of a guilty plea on the right to appeal were inadequate. [Citation.]’ [Citation.] " ‘In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: "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.’ " ( People v. Buttram (2003) 30 Cal.4th 773, 781–782, 134 Cal.Rptr.2d 571, 69 P.3d 420.)
Our Supreme Court has explained that a plea in which the parties agree to a maximum sentence does not require a certificate of probable cause unless the defendant challenges the legal validity of the maximum sentence itself. ( People v. Buttram, supra , 30 Cal.4th at pp. 790–791, 134 Cal.Rptr.2d 571, 69 P.3d 420.) "When the parties negotiate a maximum sentence, they obviously mean something different than if they had bargained for a specific or recommended sentence. By agreeing only to a maximum sentence, the parties leave unresolved between themselves the appropriate sentence within the maximum. That issue is left to the normal sentencing discretion of the trial court, to be exercised in a separate proceeding." ( Id. at p. 785, 134 Cal.Rptr.2d 571, 69 P.3d 420.)
"[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." ( People v. Buttram, supra , 30 Cal.4th at pp. 790–791, 134 Cal.Rptr.2d 571, 69 P.3d 420 ; see id. at p. 777, 134 Cal.Rptr.2d 571, 69 P.3d 420 ["Unless it specifies otherwise, a plea agreement providing for a maximum sentence inherently reserves the parties’ right to a sentencing proceeding in which (1) ... they may litigate the appropriate individualized sentence choice within the constraints of the bargain and the court's lawful discretion, and (2) appellate challenges otherwise available against the court's exercise of that discretion are retained"].)
Here, in case No. CR953084, Hill pleaded no contest to one count of carrying a concealed dirk or dagger (§ 21310), which carried a minimum sentence of 16 months and a maximum sentence of three years, and he admitted a violation of probation in case No. CR940896. Pursuant to the plea agreement, the parties agreed to a maximum, aggregate sentence of two years eight months. Exercising its discretion, the trial court denied probation and imposed the midterm sentence of two years for carrying a concealed dirk or dagger (CR953084) and the midterm sentence of eight months for being a felon in possession of a firearm (CR940896). Because Hill's appeal does not attack the validity of his plea and instead challenges the trial court's sentencing discretion relating to the application of section 1001.36, no certificate of probable cause was required. Accordingly, Hill's counsel did not render ineffective assistance by failing to request one. B. Trial Counsel Did Not Render Ineffective Assistance
See footnote *, ante .
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DISPOSITION
The judgment in case No. CR953084 is affirmed. The judgment in CR940896 is affirmed.
WE CONCUR:
Fujisaki, Acting P. J.
Petrou, J.