Filed 12/11/15 P. v. Ibarra CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H041265
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. Nos. SS132484A,
                                                                     SS140418A)
         v.

DIEGO IBARRA,

         Defendant and Appellant.



         In December 2013, defendant Diego Ibarra entered into a plea agreement under
which he pleaded no contest to violating former Health and Safety Code section 11379,
subdivision (a) (transportation of a controlled substance).1 His plea agreement specified
that his offense was “for personal use” and entitled him to receive Proposition 36
probation. He entered his plea and was placed on Proposition 36 probation in December
2013. In January 2014, he inflicted corporal injury on his girlfriend (Pen. Code, § 273.5)
and falsely imprisoned her (Pen. Code, § 236). He was found in violation of his
Proposition 36 probation, which was revoked and terminated, and he pleaded no contest
to the corporal injury and false imprisonment counts. Defendant was granted probation
in both cases. He filed a timely notice of appeal, but he did not request or obtain a


1
      Subsequent statutory references are to the Health and Safety Code unless
otherwise specified.
certificate of probable cause. His sole contention on appeal is that his December 2013
plea was invalidated by the January 2014 amendment of section 11379 to require that the
transportation be “for sale.” Since defendant lacks a certificate of probable cause and is
attacking the validity of his plea, we conclude that he may not obtain appellate review of
this contention.


                                     I. Background
       On December 7, 2013, defendant was the passenger in a vehicle stopped for an
equipment violation. Defendant got out of the vehicle, and two bindles of
methamphetamine were found on the passenger seat where he had been sitting. The
driver was then asked to exit the vehicle. Defendant “became very nervous and tried to
hide some items he had on him, inside the vehicle,” and he told the driver that he was
“going to run.” A search of the vehicle turned up a baggie of methamphetamine near an
opening in the passenger side door panel and two more bindles of methamphetamine
between the center console and the passenger seat. Defendant initially claimed that the
methamphetamine was not his but had been in a sweater he had borrowed. He
subsequently admitted that the bindles “were his,” but he claimed that only one of them
was for his use while the others were for him to give to a man who was going to sell them
at a party. The baggie and the four bindles contained methamphetamine with a total
weight of 2.9 grams.
       On December 9, 2013, defendant was charged by felony complaint with one count
of violating former section 11379, subdivision (a). On December 16, 2013, defendant
entered into a plea agreement under which he agreed to plead no contest to a violation of
former section 11379 “for personal use” in exchange for Proposition 36 probation. He
immediately waived his rights, entered his no contest plea, and was placed on Proposition
36 probation for 18 months.



                                             2
       Defendant violated his probation on January 31, 2014 by inflicting corporal injury
on his girlfriend and falsely imprisoning her. In February 2014, he was charged with
both of those offenses as felonies, and, based on those offenses, his Proposition 36
probation was summarily revoked. After a preliminary examination on the new charges
that also served as the probation violation hearing, defendant was held to answer, and the
court found that defendant had violated his probation. In April 2014, the court terminated
defendant’s Proposition 36 probation.
       In May 2014, defendant entered into a plea agreement in the new case under
which he pleaded no contest to both counts as misdemeanors. In July 2014, defendant
was sentenced for both the transportation case and the new case. The court suspended
imposition of sentence in both cases and placed defendant on probation in both cases with
consecutive jail terms for each case.
       Defendant filed a timely notice of appeal in the transportation case that challenged
only the termination of his Proposition 36 probation without an amenability hearing. He
filed a timely notice of appeal in the new case challenging his sentence. Defendant
neither requested nor received a certificate of probable cause in either case. His appellate
attorney filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) in
which she asserted that there were no arguable appellate issues.
       This court requested supplemental briefing on “the legal relevance, if any, of the
2014 amendment of Health & Safety Code section 11379 . . . with respect to defendant’s
plea of no contest to transportation of a controlled substance ‘for personal use.’ ”
Defendant responded by arguing that the amendment of the statute retroactively
invalidated his plea, and he sought a remand with directions to the trial court to permit
him to withdraw his plea. The Attorney General initially agreed.
       This court then sought further supplemental briefing. First, this court asked
whether defendant’s challenge to the validity of his plea required a certificate of probable
cause. Second, this court asked if there was any relevance to the fact that this issue arose

                                              3
in the course of this court’s Wende review. Third, this court asked if this court could
permit defendant to file an amended notice of appeal that contained a request for a
certificate of probable cause. Fourth, this court asked whether, if a certificate of probable
cause was required and this court could not permit an amended notice of appeal, there
were any other means available by which this court could grant defendant relief or he
could seek relief.
       Defendant conceded that he might well need a certificate of probable cause to
challenge the validity of his plea. The Attorney General asserted that a certificate was
required. They agreed that there was no relevance to the fact that this issue arose in the
course of Wende review. Defendant claimed that this court could permit him to file an
amended notice of appeal and to belatedly request a certificate of probable cause. The
Attorney General disagreed. As to other potential remedies, defendant conceded that he
could file a petition for a writ of habeas corpus, but he asserted that it would not be an
                     2
adequate remedy. The Attorney General took the position that defendant might be able
to file a habeas petition.


                                       II. Discussion
       Health and Safety Code section 11379 was amended effective January 1, 2014,
less than a month after defendant’s offense. This amendment was enacted by Assembly
Bill No. 721, which was signed by the Governor on October 3, 2013, more than two
months prior to defendant’s offense. (Stats. 2013, ch. 504, § 2.) The amendment added
subdivision (c) to the statute: “(c) For purposes of this section, ‘transports’ means to
transport for sale.” (Stats. 2013, ch. 504, § 2; § 11379, subd. (c).) Thus, after the




2
      Defendant has never filed a habeas petition in this court, or in the superior court to
our knowledge.

                                              4
amendment, a violation of section 11379 requires an intent to sell and cannot be
committed when the controlled substance was transported solely for personal use.
       A defendant who violated former section 11379 was eligible for Proposition 36
probation if the transportation was for personal use. (Pen. Code, § 1210.) Hence, when
defendant entered his no contest plea to the charged former section 11379 count, he was
eligible for Proposition 36 probation if the transportation was deemed to be for personal
use. After the amendment of section 11379, a defendant who violates section 11379 is
ineligible for Proposition 36 probation due to the “for sale” element. Consequently,
defendant’s December 2013 plea agreement provided him with a significant benefit that
would have disappeared if he had waited until the amendment to section 11379 took
effect. Defendant notably never sought to withdraw his plea in the many months after the
amendment took effect and before the probation order from which he appeals.
       Defendant is precluded from challenging the validity of his plea on appeal because
he failed to timely obtain a certificate of probable cause. “A guilty [or no contest] plea
amounts to an admission of every element of the crime and is the equivalent of a
conviction.” (People v. Ward (1967) 66 Cal.2d 571, 574; People v. Mendez (1999) 19
Cal.4th 1084, 1094 (Mendez).) “No appeal shall be taken by the defendant from a
judgment of conviction upon a plea of guilty or nolo contendere . . . except where both of
the following are met: [¶] (a) The defendant has filed with the trial court a written
statement, executed under oath or penalty of perjury showing reasonable constitutional,
jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial
court has executed and filed a certificate of probable cause for such appeal with the
county clerk.” (Pen. Code, § 1237.5, italics & boldface added.)
       There is but one exception to this rule. “[T]he defendant may take and prosecute
an appeal, without a statement of certificate grounds or a certificate of probable cause, if
he has based his appeal solely on noncertificate grounds and has filed a notice of appeal
so stating within 60 days after rendition of judgment.” (Mendez, supra, 19 Cal.4th at

                                              5
p. 1096.) This exception is available only if the appeal is based on the denial of a
suppression motion or on “[g]rounds that arose after entry of the plea and do not affect
the plea’s validity.” (California Rules of Court, rule 8.304(b).)3 In sum, the only appeals
that may validly be taken from a judgment of conviction based on a no contest plea are
those that fall within the rule 8.304(b) exception and those that comply with Penal Code
section 1237.5’s certificate of probable cause requirement. The California Supreme
Court has mandated that these rules “be applied in a strict manner.” (Mendez, at p. 1098.)
       Defendant is appealing from a July 2014 probation order. “Except as provided in
(b) [(dealing with cross-appeal)] or as otherwise provided by law, a notice of appeal and
any statement required by Penal Code section 1237.5 must be filed within 60 days after
the rendition of the judgment or the making of the order being appealed. Except as
provided in rule 8.66 [(dealing with public emergencies)], no court may extend the time
to file a notice of appeal.” (Rule 8.308(a).) The 60-day period for defendant to file a
request for a certificate expired in September 2014. Defendant did not request or obtain a
certificate of probable cause at any time before that period expired. A certificate of
probable cause cannot be obtained after that period has expired. And rule 8.60(d)
(formerly rule 45) does not permit us to grant relief from default for failing to file a
timely request for a certificate. “We have determined that, for purposes of rule 45(e)
[now rule 8.60(d)], filing a statement of reasonable grounds for appeal [(a request for a
certificate of probable cause)] is the equivalent of filing a notice of appeal, and
consequently that this rule [(rule 45(e), now rule 8.60(d))] does not afford relief from
default in timely filing the required statement.” (In re Chavez (2003) 30 Cal.4th 643,
653, italics & boldface added.)
       Defendant’s claim that the amendment of section 11379 invalidated his plea
plainly is a challenge that “affect[s] the plea’s validity.” Defendant could have

3
       Subsequent rule references are to the California Rules of Court.

                                              6
challenged the validity of his plea on appeal if he had obtained a certificate of probable
cause. He did not. We lack the power to excuse him from this requirement.
Accordingly, we cannot address his contention regarding the validity of his plea. As he
makes no other challenges to the validity of the probation order, and we have uncovered
no arguable issues on appeal, we must affirm the order.


                                     III. Disposition
       The order is affirmed.




                                             7
                                   _______________________________
                                   Mihara, J.



I CONCUR:




_____________________________
Bamattre-Manoukian, Acting P. J.




People v. Diego Ibarra
H041265

                                     8
Márquez, J., Dissenting
       There is no dispute about the merits of the underlying claim. Rather, the majority
denies relief because defendant’s counsel failed to obtain a certificate of probable cause.
                                                                                   1
The majority does so even though this matter came before us on Wende review , and this
court––not defendant––first raised the underlying issue on appeal. After we raised the
issue, appellate counsel admitted she had failed to identify the issue. She requested leave
to move to amend the notice of appeal and seek a certificate of probable cause, but such
leave was not granted.
       As a preliminary matter, it is not clear to me that a post-plea change in the law
triggers the certificate-of-probable-cause requirement under Penal Code section 1237.5.
But even if it did trigger that statutory requirement, as the majority holds, I believe our
constitutionally imposed duties under Wende nonetheless require us to review the entire
record and provide relief, where appropriate. In other words, I do not think the statutory
requirement to obtain a certificate of probable cause creates a categorical exception that
precludes appellate courts from conducting a full Wende review in cases where a
defendant enters a plea but fails to obtain a certificate of probable cause.
       Our duty under Wende is to ensure indigent defendants receive effective assistance
of counsel. By affirming the order, defendant’s only recourse will be to pursue his claim
through a writ of habeas corpus, a proceeding in which he is not entitled to the
appointment of counsel. The majority’s holding thus deprives defendant, who is
indigent, of his right to effective assistance of counsel, and it does so in a Wende
proceeding that is supposed to ensure that he receives effective assistance. For these
reasons, I respectfully dissent.




       1
           People v. Wende (1979) 25 Cal.3d 436 (Wende).
   1. Background
       Defendant pleaded no contest to transportation of a controlled substance “for
personal use” in violation of Health and Safety Code section 11379 (Section 11379).
After he entered his plea—but before he was sentenced—the Legislature amended
Section 11379 to clarify that a conviction under the statute requires the intent to transport
a controlled substance for sale. (Health & Saf. Code, § 11379, subd. (c), added by Stats.
2013, ch. 504, § 2.) This amendment eliminated the offense of “transportation for
personal use.” Notwithstanding the change in law, the trial court sentenced defendant as
if the law had not been amended.
       Defendant’s trial counsel filed a timely notice of appeal listing post-plea grounds
not at issue here. Trial counsel did not seek a certificate of probable cause. We
appointed counsel to represent defendant on appeal, but counsel raised no claims and
requested Wende review. After reviewing the entire record, we requested briefing on the
effect of the Legislature’s amendment to Section 11379.
       In response, the Attorney General conceded that the amendment to Section 11379
applied retroactively to defendant’s conviction under the rule of In re Estrada (1965)
63 Cal.2d 740. The Attorney General argued that defendant’s conviction should be
vacated and the matter remanded for further proceedings. Defendant agreed that the
amendment applied retroactively and requested that we remand to allow him to withdraw
his plea.
       We then requested supplemental briefing on whether this claim required defendant
to obtain a certificate of probable cause. The Attorney General withdrew her initial
response and argued that we should not reach the merits of defendant’s claim because he
had failed to obtain a certificate of probable cause. Defendant argued “it is unclear”
whether a certificate was required, but “in the exercise of caution,” requested leave to file
a motion to amend the notice of appeal and to seek a certificate. Appellate counsel also

                                              2
stated that both she and trial counsel had failed to identify the change in law and that the
failure to seek a certificate was due to the “oversights” of counsel. Appellate counsel
also emphasized that the failure to seek a certificate was not due to any lack of diligence
by defendant.

   2. Failure to Seek a Certificate of Probable Cause Was Ineffective Assistance of
      Counsel
       The United States Supreme Court has recognized that counsel’s failure to file a
timely notice of appeal may constitute ineffective assistance of counsel. (Roe v. Flores-
Ortega (2000) 528 U.S. 470, 476-477 (Flores-Ortega).) This holding applies equally to
the failure to seek a certificate of probable cause. (Jones v. Henry (9th Cir. 2011) 460
Fed.Appx. 717, 721.)
       In Flores-Ortega, the court applied the familiar rule of Strickland v. Washington
                                                                                   2
(1984) 466 U.S. 668 (Strickland) in the context of a failure to perfect an appeal. The
court first considered the first prong of the Strickland standard: deficient performance by
counsel. The court held that even if a defendant does not clearly convey a desire to
appeal, “counsel has a constitutionally-imposed duty to consult with the defendant about
an appeal when there is reason to think either (1) that a rational defendant would want to
appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this
particular defendant reasonably demonstrated to counsel that he was interested in
appealing.” (Flores-Ortega, at p. 480, italics added.) The court added, “We expect that
courts evaluating the reasonableness of counsel’s performance using the inquiry we have




       2
         Although the court in Flores-Ortega referred to a “notice of appeal,” it appears
the defendant—who had pleaded guilty—was required to seek a certificate of probable
cause. (See Flores-Ortega, supra, 528 U.S. at p. 474, citing former California Rules of
Court, rule 31(d).)
                                              3
described will find, in the vast majority of cases, that counsel had a duty to consult with
the defendant about an appeal.” (Id. at p. 481.)
       The court then considered the prejudice prong of the Strickland standard. “[T]o
show prejudice in these circumstances, a defendant must demonstrate that there is a
reasonable probability that, but for counsel’s deficient failure to consult with him about
an appeal, he would have timely appealed.” (Flores-Ortega, supra, at p. 484.) Thus,
“when counsel’s constitutionally deficient performance deprives a defendant of an appeal
that he otherwise would have taken, the defendant has made out a successful ineffective
assistance of counsel claim entitling him to an appeal.” (Ibid.) The court added,
“evidence that there were nonfrivolous grounds for appeal or that the defendant in
question promptly expressed a desire to appeal will often be highly relevant in making
this determination.” (Id. at p. 485, italics added.)
       In my view, defendant has established ineffective assistance of counsel under the
standards set forth in Flores-Ortega. Appellate counsel admitted that both she and trial
counsel failed to identify the underlying issue requiring a certificate of probable cause.
Once alerted to the issue after our Wende review, defendant pressed his claim, showing
he would have pursued the claim had his counsel identified it and consulted with him
about it. If this had happened, counsel would have been alerted to the need for a
certificate of probable cause. Thus, both prongs of the Strickland standard are met.
       That the issue arose after Wende review is also highly relevant to the analysis.
The primary constitutional purpose of Wende review is to protect a defendant’s right to
effective assistance of counsel by searching for arguable issues that counsel may have
missed. (People v. Kelly (2006) 40 Cal.4th 106, 119 (Kelly).) Wende review is further
grounded in a defendant’s rights to due process and equal protection under the Fourteenth
Amendment. (In re Sade C. (1996) 13 Cal.4th 952, 978.) The California Supreme Court
has repeatedly emphasized that this constitutional safeguard requires us to review “the

                                              4
entire record.” (Kelly, supra, at pp. 110, 111, 118, 123, 124, 125, 126; Wende, supra,
25 Cal.3d at p. 441.)
       The majority nonetheless holds that counsel’s failure to obtain a certificate of
probable cause within the 60-day deadline deprives defendant of review of his otherwise
meritorious claim. I disagree. The purpose of the certificate requirement is “to weed out
frivolous and vexatious appeals from pleas of guilty or no contest, before clerical and
judicial resources are wasted.” (People v. Buttram (2003) 30 Cal.4th 773, 790.) There is
no risk of a frivolous or vexatious appeal where the appellate court itself has raised the
issue on Wende review.
       More fundamentally, the requirement to obtain a certificate of probable cause
within 60 days cannot trump a defendant’s Sixth Amendment rights. I am aware that
many courts, absent a certificate of probable cause, limit their Wende review to so-called
“noncertificate” issues where the appeal follows a plea of guilty or no contest. (See
People v. McEwan (2007) 147 Cal.App.4th 173.) In my view, this practice abrogates our
duty to review the entire record under the Sixth Amendment. Because Wende review
frequently follows a conviction by entry of plea, this limitation has the potential to
transform a large number of appeals into “a meaningless ritual.” (Douglas v. People of
State of Cal. (1963) 372 U.S. 353, 358.)
       Furthermore, in my view, the requirement of a certificate of probable cause is not
as inflexible as the majority construes it to be. With the doctrine of “constructive filing,”
our high court has long recognized an exception for untimely appeals that occur as the
result of counsel’s negligence. (In re Benoit (1973) 10 Cal.3d 72, 84.) I would hold that
the application of Flores-Ortega to the circumstances of this case requires us to recognize
such an exception here. It would make little sense to require defendant to file a separate
habeas petition. Generally, judicial economy favors a separate habeas proceeding where
“ ‘the record on appeal sheds no light on why counsel acted or failed to act in the manner

                                              5
challenged[,] . . . unless counsel was asked for an explanation and failed to provide one,
or unless there simply could be no satisfactory explanation . . .’ ” (People v. Mendoza
Tello (1997) 15 Cal.4th 264, 266.) But here there is no possibility counsel’s failure
involved a tactical trial decision; counsel’s negligence was admitted, and there is no need
for an evidentiary hearing. “There is no legitimate reason to limit to a petition for writ of
habeas corpus the vehicle by which a defendant may seek to have an appeal deemed
timely under the constructive filing doctrine.” (People v. Zarazua (2009)
179 Cal.App.4th 1054, 1062; see also People v. Pope (1979) 23 Cal.3d 412, 425-426,
overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048; People v.
Byron (2009) 170 Cal.App.4th 657, 666 [treating as a habeas petition an untimely appeal
resulting from ineffective assistance].)
       I would grant defendant leave to move for amendment of the notice of appeal so
he may seek a certificate of probable cause. If he obtained a certificate of probable cause,
I would reverse the order based on the merits of his claim and remand to the trial court to
allow him to withdraw his plea.



                                                  _______________________________
                                                  Márquez, J.




People v. Ibarra
H041265


                                              6
