P .v. Brown CA1/4

Filed 6/5/14 P .v. Brown CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

A138044, A138991

v.

PAUL WILLIAM BROWN, (Mendocino County

Super. Ct. No. CR11-16652)

Defendant and Defendant.

__________________________________

In re PAUL WILLIAM BROWN,

On Habeas Corpus

Defendant Paul William Brown pleaded no contest to one count of robbery. The

trial court suspended imposition of sentence and placed defendant on three years formal

probation. While on probation, defendant was arrested for reckless driving, prompting

the filing of a probation revocation petition. Defendant admitted the violation and the

trial court terminated probation and sentenced defendant to an aggravated state term of

five years in prison. In his appeal and his concomitantly filed petition for writ of habeas

corpus,1 defendant contends the trial court violated his right to due process by failing to

initiate proceedings to determine his competency at the time it accepted defendant’s no

contest plea.

1

We previously denied defendant’s request to consolidate his habeas petition

pending further consideration of the appeal. We now grant consolidation of the appeal

and petition.

1

We reject defendant’s attempt to challenge the validity of his plea, finding it

barred by the absence of a certificate of probable cause. Similarly, we find his petition

for writ of habeas corpus procedurally barred. Therefore, we dismiss his claims.

I. BACKGROUND

A. Underlying Plea and Probation

According to the probation report, on March 7, 2011, Fort Bragg police officers

responded to a reported altercation that possibly involved a carjacking attempt.

Defendant was identified and apprehended walking down the sidewalk near to the

location of the incident. The victim said she had just parked her car when defendant

walked by and told her to be careful about an on-coming vehicle. She reported that the

next thing she knew defendant had grabbed her from behind and was struggling to get her

car keys out of her hand. A bystander helped pull defendant away from the victim. He

thought defendant was struggling to get the victim’s purse. Defendant fell to the ground

but got up and walked off. Defendant told the police he was high on cocaine and alcohol

and he angrily grabbed her car keys, believing she had made a derogatory comment about

him.

On March 21, 2011, defendant pleaded no contest to second degree robbery in

exchange for dismissal of the attempted carjacking charge and a driving while intoxicated

charge in an unrelated case. At that hearing, the trial court questioned defendant

extensively regarding the rights defendant was sacrificing by entering a no contest plea.

Specifically, the trial court asked defendant whether he understood and knowingly

waived his rights to: (1) “a speedy public trial either before a judge or a jury”;

(2) “confront and cross-examine any witnesses testifying against you”; (3) “present

evidence on your own behalf”; and (4) “remain silent and not to incriminate yourself.”

Defendant responded that he did. The trial court also informed defendant of his right to a

preliminary examination, at which “the prosecution has the burden to show that there’s

reasonable cause to believe that a felony was committed and that you are guilty of that

offense.” Defendant stated that he understood this right and waived it. Defendant also

stated that he was entering the plea “freely and voluntarily” and that no one had

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threatened him or otherwise induced his plea. Defendant agreed that he had had

sufficient time to discuss the facts of his case, his rights, and his defenses with his

attorney, and that he did not need any additional time to discuss the matter with his

lawyer. Defense counsel noted that “there’s an issue as to whether [defendant] actually

had possession of the car keys,” but that defendant had decided “to take advantage of this

[plea] agreement” because “[h]e thinks that it’s in his best interest.”

The trial court advised defendant that the maximum possible sentence for the

robbery charge was five years, and defendant stated that he understood his exposure to

this sentence. Defendant also said that he understood numerous advisements from the

trial court regarding the terms of his probation and the consequences of violating them.

Additionally, the trial court noted that defendant had completed a “Tahl Waiver” for his

driving under the influence case, which formally waives all of the rights described above,

verifying that defendant had “read and understood this form before [he] initialed and

signed it.” Finally, when interviewed by the probation department, defendant

characterized his medical and psychological health as “good.” At no point before or

during the plea hearing did defense counsel express any concerns about defendant’s

competence or mention his purported developmental disability, nor is there any record of

unusual statements or behavior by defendant that might have raised concerns for those in

the courtroom.

B. Probation Revocation and Sentencing

On January 1, 2013, while on probation for the robbery, a deputy sheriff observed

defendant driving through Fort Bragg at approximately 90 miles per hour, in zones with

posted speed limits of 25 and 35 miles per hour. The officer activated his lights and siren

and pursued defendant. Defendant did not pull over, but instead led the officer on a high-

speed chase. Defendant passed cars using the center turn lane and endangered

pedestrians, with three drivers later telling officers that they nearly crashed due to

defendant’s recklessness. When defendant was ultimately detained and questioned, he

said that he was driving fast because he was “pissed off.”

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On January 3, 2013, a probation revocation petition was filed, and defendant

admitted the violation on January 14, 2013. After defendant admitted the violation, but

before sentencing, his step-father submitted a handwritten note stating that defendant was

“only one point above being legally retarded . . . .” In support of this assertion,

defendant’s step-father submitted a psychological report from September 2009, prepared

by Albert J. Kastl, Ph.D., to “assess [defendant’s] cognitive ability, academic

achievement, and adaptive functioning.” Also considered in the report was “the

possibility of autistic disorder.” At the time of the report, defendant was 29 years old.

Prior to evaluating the defendant, Kastl reviewed a number of records, including a

1993 assessment by psychologist Joanna Abbott, when defendant was 13 years old.

Abbott noted that defendant had been receiving special education services for six years

for “learning disabilities and emotional problems.” “Major concerns were in the area of

social/emotional functioning.” Defendant was again evaluated at age 17 by a school

psychologist, at a time when his cumulative GPA was 1.3 and he “still had difficulty

maintaining interpersonal relationships and exhibited inappropriate behaviors” that

“require services for a seriously emotionally disturbed youngster.”

By the time Kastl evaluated defendant at age 29, he found defendant “could grasp

only basic conceptual similarities,” there were “prominent” difficulties with his “attention

and concentration,” as well as “measures of processing speed.” Kastl indicated that his

I.Q. score “reflects quite a distinct decline when results are compared with earlier

findings, with scores in the low-average to average ranges.” He determined defendant

“can follow simple directions” but lacks the ability to sustain communication beyond 15-

30 minutes; he cannot decipher reading material at the fourth-grade level. Kastl opined

that defendant “is currently functioning at the lower end of the borderline range of

intellectual functioning.” Kastl found “no evidence of autistic disorder.” Kastl noted

defendant “appears to be an individual . . . who would benefit from services similar to a

person with mental retardation.”

The handwritten note from defendant’s step-father, along with the 2009

psychological report, was attached to the probation report filed with the court. Also

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attached to the probation report, was a handwritten note from defendant, asking for

leniency.

At the sentencing hearing, defense counsel argued for a low term of imprisonment

and asked the court to consider defendant’s mental status as a mitigating circumstance,

given “an undiagnosed and unknown cognitive disability.” The trial court noted that it

had reviewed the psychological report from 2009 and that it appeared that defendant “is

borderline mentally retarded.” The court explained that although this might be

considered a fact in mitigation, it also made defendant “more dangerous” and “a huge

concern to the Court.” The court further stated that “in a perfect world[,] there would be

ways to address his issues and protect public safety. I’m not sure if there are sufficient

services available to protect the public or to address effectively what it is about him that

makes him dangerous, and that’s a very sad circumstance . . . .”

II. DISCUSSION

Section 1237.5 provides that, absent statutory exceptions not relevant here, “[n]o

appeal shall be taken by the defendant from a judgment of conviction upon a plea of

guilty or nolo contendere.” (See also Cal. Rules of Court, rule 8.304(b) [to appeal from a

superior court judgment after plea of guilty or nolo contendere, defendant must file, in

addition to notice of appeal, statement for issuance of a certificate of probable cause,

which the superior court must rule on within 20 days after statement filed]; People v.

Lloyd (1998) 17 Cal.4th 658, 663 [compliance with section 1237.5’s requirement

essential to maintain appeal challenging validity of guilty plea or plea of nolo

contendere].)

Penal Code section 1237.5 is not a pointless technicality. By requiring a

defendant who has pleaded guilty to obtain a certificate of probable cause to appeal,

section 1237.5 promotes judicial economy by weeding out frivolous guilty plea appeals.

(People v. Mendez (1999) 19 Cal.4th 1084, 1095 (Mendez).) “Its assumption is that, as a

general matter, a judgment of conviction entered on a defendant’s plea of guilty or nolo

contendere does not present any issue warranting relief on appeal, and hence should not

be reviewed thereon.” (Id. at p. 1097.)

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Nevertheless, a certificate of probable cause is not required when the defendant’s

appeal is based on search and seizure issues or grounds that arose after his plea was

entered and do not affect the plea’s validity. (People v. Panizzon (1996) 13 Cal.4th 68,

74; Cal. Rules of Court, rule 8.304(b).) Defendant tries to squeeze his appeal into the

latter exception, arguing not so much on the validity of his underlying plea as the manner

in which the trial court failed to consider his mental competency at the time of

sentencing. By this argument, defendant hopes that we will overlook the stated objective

of his appeal, i.e., “a complete reversal.” Alternatively, defendant seeks “a limited

remand” to determine whether “a retrospective competency hearing can be held.”

In determining whether an appeal falls within an exception to the certificate of

probable cause requirement, “the crucial issue is what the defendant is challenging, not

the time or manner in which the challenge is made.” (People v. Ribero (1971) 4 Cal.3d

55, 63, superseded by statute on another ground as stated in In re Chavez (2003) 30

Cal.4th 643, 656.) A defendant may not avoid the requirement “by strategic

maneuverings.” (People v. Manriquez (1993) 18 Cal.App.4th 1167, 1170.) Here,

defendant contends the trial court erred by failing to have his competency assessed

pursuant to Penal Code section 1368 at the time of his plea. The California Supreme

Court has declared that “mental incompetence issues are indeed certificate issues,

inasmuch as they are questions going to the legality of the proceedings, and, specifically,

the validity of his guilty plea.” (Mendez, supra, 19 Cal.4th at p. 1100.) Because the

defendant in Mendez failed to secure a certificate of probable cause before challenging

his mental competence to enter a plea, the high court held that the appeal needed to be

dismissed. (Id. at p. 1104.) In so concluding, the Mendez court instructed that the

requirement for a certificate of probable cause “should be applied in a strict manner.”

(Id. at p. 1098.)

Because defendant’s appeal, at bottom, challenges the validity of his plea, he was

required to obtain a certificate of probable cause. (Mendez, supra, 19 Cal.4th at

pp. 1094-1097.) Having failed to do so, his appeal must be dismissed. (Id. at pp. 1099-

6

1100, 1104, In re Chavez, supra, 30 Cal.4th at p. 651; People v. Stubbs (1998) 61

Cal.App.4th 243; People v. Manriquez, supra, 18 Cal.App.4th at p. 1170.)

The same is true for his petition for a writ of habeas corpus. As our Supreme

Court has explained, “the certificate of probable cause must be obtained regardless of

other procedural challenges being made. For example, a defendant who has filed a

motion to withdraw a guilty plea that has been denied by the trial court still must secure a

certificate of probable cause in order to challenge on appeal the validity of the guilty plea.

[Citations.] A defendant who challenges the validity of such a plea on the ground that

trial counsel rendered ineffective assistance in advice regarding the plea may not

circumvent the requirements of section 1237.5 by seeking a writ of habeas corpus.

[Citations.]” (In re Chavez, supra, 30 Cal.4th at p. 651.)

Requiring a certificate of probable cause makes good sense in this case, given the

overlapping nature of defendant’s filings. Indeed, defendant’s habeas petition is nothing

more than an alternative appeal.2 Accordingly, defendant cannot circumvent the

certificate of probable cause requirement by passing off his claim as a petition for writ of

habeas corpus. (In re Chavez, supra, 30 Cal.4th at p. 651; In re Brown (1973) 9 Cal.3d

679, 683; People v. Ribero, supra, 4 Cal.3d at pp. 62-63.)

III. DISPOSITION

The appeal and petition for writ of habeas corpus are dismissed.

2

The habeas petition includes an additional psychological evaluation conducted by

Kastl on May 30, 2013. This evaluation of defendant, which took place in San Quentin,

occurred long after sentencing.

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_________________________

REARDON, J.

We concur:

_________________________

RUVOLO, P.J.

_________________________

RIVERA, J.

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