Filed 3/25/14 P. v. Boyer CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                          B245556

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. PA070872)
         v.

ANDRE PIERRE BOYER,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court for Los Angeles County,
Cynthia L. Ulfig, Judge. Appeal dismissed.
         John L. Staley, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Steven D.
Matthews and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and
Respondent.
      Defendant Andre Pierre Boyer filed a notice of appeal from a judgment
entered following a plea agreement. The notice of appeal indicated that the appeal
is based upon both the sentence or other matters occurring after the plea that do not
affect the validity of the plea, as well as matters for which a certificate of probable
cause is required. Concurrently with the notice of appeal, defendant filed with the
trial court a request for certificate of probable cause. The trial court denied his
request.
      In his appellant’s opening brief, defendant contends the trial court obtained
an inadequate Faretta1 waiver because he was not advised of the potential penalties
for the crimes with which he was charged; defendant also challenges the validity of
the Supreme Court’s decision in Faretta. The Attorney General addresses the
merits of these issues in the respondent’s brief, but also argues that we should
decline to address the issues defendant raises because he failed to obtain a
certificate of probable cause. The Attorney General is correct.
      Penal Code section 1237.52 states that “[n]o 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 [and] [¶] (b) The trial court has executed and filed a
certificate of probable cause for such appeal with the clerk of the court.” The
California Supreme Court has recognized only two exceptions to the certificate of
probable cause requirement: “First, a defendant may appeal from a ruling
involving a search and seizure issue without obtaining a certificate, because an

1
      Faretta v. California (1975) 422 U.S. 806.
2
      Further statutory references are to the Penal Code.

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appeal from such a ruling explicitly is authorized by section 1538.5
‘notwithstanding the fact that the judgment of conviction is predicated upon a plea
of guilty.’ [Citations.] Second, a defendant is ‘not required to comply with the
provisions of section 1237.5 where . . . he is not attempting to challenge the
validity of his plea of guilty but is asserting only that errors occurred in the
subsequent adversary hearings conducted by the trial court for the purpose of
determining the degree of the crime and the penalty to be imposed.’ [Citation.]”
(People v. Johnson (2009) 47 Cal.4th 668, 677.)
      Neither of those exceptions apply in the present case. Nevertheless,
defendant argues in his reply brief that “[t]he language used by the [California
Supreme] Court [in People v. Marlow (2004) 34 Cal.4th 131, 146] suggests that
issues pertaining to counsel can be raised on appeal despite the absence of a
certificate of probable cause.” He is incorrect.
      In People v. Marlow, the defendant pleaded guilty to all charges, including
murder, and admitted the special circumstances allegations. In his appeal from the
judgment sentencing him to death, he contended that the trial court erred in
denying his Faretta motion. The Attorney General contended this contention was
forfeited by defendant’s guilty plea. The Supreme Court stated: “Although not
relying on the absence of a certificate of probable cause [citations], respondent
argues the claim of erroneous denial of a Faretta motion is not one going to the
‘legality of the proceedings’ and thus is not cognizable on appeal. [Citations.] We
disagree. Just as a claim of denial of the right to counsel is cognizable on appeal
after a guilty plea [citation], so too is a claim of Faretta error [citation].” (People
v. Marlow, supra, 34 Cal.4th at pp. 146-147.)
      The Supreme Court’s language does nothing to “suggest” that a certificate of
probable cause generally is not required for claims of Faretta error. The Court’s
statement that the Attorney General did not rely on the absence of the certificate

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was simply an observation, a part of its explanation of the Attorney General’s
contention. The Court had no occasion to address the effect of the absence of a
certificate of probable cause in People v. Marlow because the requirement of a
certificate of probable cause does not apply to automatic appeals in capital cases.
(See People v. Massie (1998) 19 Cal.4th 550, 568-569.) In this case, a noncapital
case, the requirement strictly applies, and is a “‘condition precedent’ to the taking
of an appeal within its scope.” (People v. Mendez (1999) 19 Cal.4th 1084, 1098.)
Therefore, because defendant failed to obtain a certificate of probable cause, we
must dismiss this appeal.


                                  DISPOSITION
             The appeal is dismissed.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                              WILLHITE, Acting P. J.




             We concur:




             MANELLA, J.                      EDMON, J.*




*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
 to article VI, section 6 of the California Constitution.

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