Filed 5/16/18 (unmodified opn. attached)
                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FIRST APPELLATE DISTRICT

                                           DIVISION ONE


 THE PEOPLE,
          Plaintiff and Respondent,
                                                     A151039
 v.
 DONICIA ATHENA ESPINOZA,                            (Solano County
                                                     Super. Ct. No. FCR325222)
          Defendant and Appellant.
                                                     ORDER MODIFYING OPINION
                                                     AND DENYING REHEARING

                                                     NO CHANGE IN JUDGMENT



        BY THE COURT:
        Appellant Donicia Athena Espinoza’s petition for rehearing is denied.
        It is ordered that the opinion filed herein on April 25, 2018, be modified as
follows:


        The second sentence of the first full paragraph on page 7 should read: “Similarly,
Panizzon determined that the appellate waiver required dismissal of the appeal because
the defendant knowingly waived his right to appeal the sentence, not because he had
failed to obtain a certificate of probable cause.”


        There is no change in the judgment.




                                                1
Dated:


                                 _________________________
                                 Humes, P.J.




People v. Espinoza A151039



                             2
Filed 4/25/18 (unmodified verison)
                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIRST APPELLATE DISTRICT

                                          DIVISION ONE


 THE PEOPLE,
          Plaintiff and Respondent,
                                                    A151039
 v.
 DONICIA ATHENA ESPINOZA,                           (Solano County
                                                    Super. Ct. No. FCR325222)
          Defendant and Appellant.


        Defendant Donicia Espinoza was placed on probation after pleading no contest to
a felony count of cemetery vandalism. Before entering the plea, she expressed her
understanding that probation conditions would be imposed, and as part of the plea, she
entered a broad waiver of her right to appeal. After a specific probation condition was
subsequently imposed prohibiting her from possessing weapons and ammunition,
Espinoza brought this appeal to challenge it without first obtaining a certificate of
probable cause from the trial court.
        Espinoza contends that a certificate of probable cause was not required to
challenge the weapons condition on appeal, but we disagree. We hold that a defendant
who waives the right to appeal as part of a plea agreement must obtain a certificate of
probable cause to appeal on any ground covered by the waiver, regardless of whether the
claim arose before or after the entry of the plea. Absent such a certificate, the appellate
court lacks authority under California Rules of Court, rule 8.304(b) to consider the claim
because it is in substance a challenge to the validity of the appellate waiver, and therefore
to the validity of the plea. Because we cannot reach the merits of Espinoza’s claim
without first addressing the validity of her appellate waiver, her failure to obtain a
certificate of probable cause requires dismissal of her appeal.

                                                1
                                         I.
                               FACTUAL AND PROCEDURAL
                                    BACKGROUND
       In October 2016, a Fairfield police officer received a report of vandalism at a
cemetery.1 When he arrived at the cemetery, he saw “several damaged headstones,
flowers scattered throughout,” and Espinoza, “covered in mud and grass,” standing in the
damaged area. It appeared that several headstones had been “kicked over,” and some
were cracked and “beyond repair.” A bystander identified Espinoza as the person who
had caused the damage.
       Espinoza was charged with a felony count of cemetery vandalism.2 The trial court
suspended the proceedings for an assessment of her mental competency. After she was
found competent, she pleaded no contest to the charge. On her plea form, she initialed
the following statement: “Even though I will be convicted in this case as a result of my
plea, I have the right to appeal the judgment and rulings of the court (e.g.: Penal Code
Section 1538.5(m)). I give up my right of appeal.” She also initialed statements
indicating that her attorney had explained the form to her, that she was “of sound mind”
and “[understood] the nature of these proceedings,” and that she “freely and voluntarily,
having full knowledge and understanding of the rights that [she was] giving up and the
possible consequences which [might] result from [her] plea,” requested a change of plea.
       Before Espinoza entered her plea, the trial court explained that she would be put
on probation and would “have to stay away from the cemetery, be subject to search and
seizure, and other terms and conditions to make sure [she was] successful on probation.”
Espinoza indicated that she understood. The court confirmed that she understood the plea
form, her attorney had reviewed it with her, and she had initialed it herself. As to the
waiver of the right to appeal, the court said, “I don’t know if you have a basis to appeal,



       1
         The facts in this paragraph are drawn from the transcript of the preliminary
hearing, which Espinoza stipulated contained the facts upon which her plea was based.
       2
         The charge was brought under Penal Code section 594.35, subdivision (a). All
further statutory references are to the Penal Code.

                                             2
but if you did, you’re giving up any right to appeal when you make this plea; do you
understand that?” Espinoza responded, “Yes.” The court then accepted her plea and
found it was intelligent, knowing, and voluntary.
       The probation report recommended that Espinoza be prohibited from possessing
certain weapons and ammunition. At the sentencing hearing, her trial counsel objected to
this proposed condition, stating that “there’s no nexus in this matter.” The trial court
asked whether Espinoza had “any instrument that she used to cause any of the damage[],”
questioning “how someone with their bare hands causes this much damage to the
headstones. I guess you can push it over, I guess.” Counsel responded that the allegation
was “kicking and throwing.”
       The trial court placed Espinoza on formal probation for three years, including a
weapons condition. Specifically, the court stated, “Due to the felony nature, she’s not to
have firearms. Due to the underlying nature of this case, she’s not to have any dangerous
or deadly weapons of any kind at any time based on the felony. No ammunition or
firearm[s].”
       Espinoza filed a notice of appeal indicating that the appeal was “based on the
sentence or other matters occurring after the plea that do not affect the validity of the
plea.” The record does not contain a certificate of probable cause.
                                             II.
                                        DISCUSSION
       Espinoza claims that the challenged weapons condition is unreasonable, vague,
and overbroad. We do not address these contentions because we agree with the Attorney
General that the appeal must be dismissed.
       Under section 1237.5, a defendant cannot appeal after entering a plea of no contest
unless he or she “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 the trial court “has executed and filed a
certificate of probable cause for such appeal with the clerk of the court.” “ ‘The purpose
of section 1237.5 is . . . “to discourage and weed out frivolous or vexatious appeals


                                              3
challenging convictions following guilty and nolo contendere pleas,” and . . . [t]he
requirements of [the statute] . . . must be strictly applied.’ ” (People v. Mashburn (2013)
222 Cal.App.4th 937, 941 (Mashburn).)
       California Rules of Court, rule 8.304 establishes an exception to section 1237.5.
A defendant who has entered a plea of no contest need not obtain a certificate of probable
cause “if the notice of appeal states that the appeal is based on: [¶] (A) The denial of a
motion to suppress evidence under . . . section 1538.5; or [¶] (B) Grounds that arose after
entry of the plea [that] do not affect the plea’s validity.” (Cal. Rules of Court,
rule 8.304(b)(4); see id., rule 8.304(b)(1).) If a notice of appeal identifies either of these
circumstances as the basis for the appeal, “the reviewing court will not consider any issue
affecting the validity of the plea” unless the defendant obtains a certificate of probable
cause. (Id., rule 8.304(b)(5); see id., rule 8.304(b)(1).)
       Here, Espinoza’s notice of appeal states the appeal is based on grounds that do not
affect the plea’s validity. But, “ ‘[i]n determining whether section 1237.5 applies to a
challenge of a sentence imposed after a plea of . . . 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 (Buttram).)
       Several decisions have considered whether an appellate claim was a challenge to
the validity of the plea. In Buttram, the defendant pleaded guilty “in return for an agreed
maximum sentence, or ‘lid,’ ” but he appealed when the trial court denied his request for
diversion and imposed the maximum sentence. (Buttram, supra, 30 Cal.4th at pp. 776-
777, italics omitted.) Unlike Espinoza, the defendant did not waive his right to appeal as
part of the plea. (Id. at p. 776.) The Supreme Court concluded that the appeal could
proceed without a certificate of probable cause because the appeal was not a challenge to
the validity of the plea, in that the trial court’s exercise of its discretion under the
maximum term was left open by the plea agreement. (Id. at pp. 776-777.)


                                                4
       Justice Baxter wrote both the majority and concurring opinions in Buttram. In his
concurring opinion, he “offer[ed] some suggestions for improvement” of “the current
‘certificate of probable cause’ system for discouraging baseless pleas from negotiated
pleas.” (Buttram, supra, 30 Cal.4th at p. 791 (conc. opn. of Baxter, J.).) In doing so, he
posited that a certificate of probable cause would be required if a defendant waived the
right to appeal as part of a plea:
               [A]n attempt to appeal the sentence notwithstanding the waiver
       would necessarily be an attack on an express term, and thus on the validity,
       of the plea. [Citation.] A certificate of probable cause would therefore be
       necessary to make the appeal “operative,” and in the absence of a
       certificate, the superior court clerk would not be put to the time and
       expense of preparing a record on appeal. [Citation.] If a record were
       nonetheless prepared and transmitted, the Court of Appeal could still
       dismiss the appeal for lack of a certificate, without having to address its
       merits.

               An attempt to appeal the enforceability of the appellate waiver itself
       (for example, on grounds that it was not knowing, voluntary, and
       intelligent, or had been induced by counsel’s ineffective assistance) would
       not succeed in circumventing the certificate requirement. This is because,
       however important and meritorious such a challenge might be, it too would
       manifestly constitute an attack on the plea’s validity, thus requiring a
       certificate in any event.
(Buttram, supra, 30 Cal.4th at pp. 792-793 (conc. opn. of Baxter, J.), some italics
omitted.)
       In Mashburn, Division Five of this Court considered an appellate challenge to a
denial of a motion to suppress brought by a defendant who had failed to obtain a
certificate of probable cause and had expressly “agreed as part of his plea bargain to give
up his right of appeal.” (Mashburn, supra, 222 Cal.App.4th at p. 940.) Relying on
Justice Baxter’s concurrence in Buttram, the court held that the defendant’s failure to
obtain a certificate of probable cause required dismissal of the appeal. (Mashburn, at
p. 940.) The defendant argued that “he did not knowingly and intelligently waive his
right to appeal and any such waiver did not encompass his challenge to the denial of the
motion to suppress.” (Id. at p. 941.) Our colleagues concluded that because the


                                             5
defendant’s challenge could be considered only “if the waiver of the right to appeal [was]
unenforceable,” the appeal effectively challenged “the validity of the waiver . . . and,
thus, the plea itself.” (Id. at p. 943.) As a result, a certificate of probable cause was
required to raise the suppression issue. (Id. at pp. 943-944; accord, People v. Lujano
(2014) 229 Cal.App.4th 175, 190.)
       As did Espinoza, the Mashburn defendant entered his plea in Solano County
Superior Court, and he signed a plea form containing language nearly identical to the one
Espinoza signed, including the scope of the waiver of the right to appeal.3 (Mashburn,
supra, 222 Cal.App.4th at pp. 937, 940.) But unlike the Mashburn defendant, who
sought to challenge a ruling—the denial of his motion to suppress—made before he
entered his plea, Espinoza seeks to challenge a probation condition imposed after she
entered her plea. As we will explain, this distinction does not lead to a different result
than the one reached in Mashburn.
       Espinoza broadly waived her “right to appeal the judgment and rulings of the
court.” By its express terms, the waiver includes her right to appeal the imposition of
probation terms, and she does not argue otherwise. Nor does she contend that her
challenge to the weapons condition is of the type that cannot be waived as a matter of
law. (See People v. Panizzon (1996) 13 Cal.4th 68, 88 (Panizzon) [appellate waiver
barred appeal where defendant did not contend that claim raised was “not waivable by
agreement”].) Instead, she argues that her waiver was not knowing and intelligent,
relying on decisions holding that a waiver of the right to appeal does not necessarily “bar
the appeal of sentencing errors occurring subsequent to the plea.” (Id. at p. 85.)
        We recognize that, as a general principle, defendants cannot knowingly and
intelligently waive the right to appeal an issue that was not contemplated at the time of
the waiver. Panizzon itself concluded that the defendant had waived the right to
challenge his sentence as cruel and unusual punishment, because he agreed to serve a

       3
         The only difference in the pertinent language in Espinoza’s plea form, its
specification of “Penal Code Section 1538.5(m)” as an example of a ruling the appellate
waiver encompasses, was apparently added after Mashburn.

                                               6
particular term as part of the plea and entered a written waiver of his “right to appeal
from the sentence [he would] receive.” (Panizzon, supra, 13 Cal.4th at pp. 82, 85-86.) In
doing so, however, the decision distinguished two Court of Appeal cases holding that
more general waivers of the right to appeal did not encompass post-plea sentencing
errors, on the basis that the sentencing issues those defendants raised “were left
unresolved by the particular plea agreements involved.” (Id. at pp. 85-86.) In People v.
Vargas (1993) 13 Cal.App.4th 1653 (Vargas), the Fourth District Court of Appeal held
that a defendant’s general waiver of “ ‘[his] appeal rights’ ” did not encompass his
challenge to the calculation of conduct credits “occurring after the waiver because [the
waiver] was not knowing and intelligently made,” explaining that “a waiver of possible
future error [did] not appear to be within [the] defendant’s contemplation and knowledge
at the time” of the plea. (Id. at p. 1662.) Similarly, in People v. Sherrick (1993)
19 Cal.App.4th 657 (Sherrick), the Second District Court of Appeal, relying on Vargas,
held that a waiver of the right to appeal “any ruling in this case” did not preclude the
defendant from challenging the trial court’s erroneous assessment of his eligibility for
probation. (Sherrick, at pp. 658-659.)
       Vargas and Sherrick concluded that an appellate waiver was not knowing and
intelligent without considering whether a certificate of probable cause was required to
enable the defendant to argue that the waiver was unenforceable on those grounds.
Similarly, Panizzon determined that the appeal was subject to dismissal because the
defendant knowingly waived his right to appeal the sentence, not because he had failed to
obtain a certificate of probable cause. The decision, which was authored by Justice
Baxter and predates his concurrence in Buttram, did not address whether the lack of a
certificate of probable cause prevented consideration on the merits of the waiver’s
enforceability. Thus, these decisions do not undermine Mashburn’s holding that a
certificate of probable cause is required before a reviewing court can consider the validity
of an appellate waiver entered as part of a plea. (See Riverside County Sheriff’s Dept. v.
Stiglitz (2014) 60 Cal.4th 624, 641 [cases not authority for propositions not considered].)



                                              7
        Based on the reasoning of these authorities, it may be that Espinoza did not
knowingly and intelligently waive the right to challenge the weapons condition, and in
that sense her position is stronger than that of the Mashburn defendant. But the error she
raises still challenges “the validity of the waiver . . . and, thus, the plea itself.”
(Mashburn, supra, 222 Cal.App.4th at p. 943.) Espinoza’s claim that her waiver should
not be construed to extend to a challenge of the weapons condition because that aspect of
the waiver was not knowing and intelligent is no different than the position taken by the
Mashburn defendant, who similarly argued that his waiver was unenforceable because it
was not knowing and intelligent. (Id. at p. 941.) Thus, Mashburn’s holding has equal
force here. Where a defendant broadly waives the right to appeal as part of a plea, he or
she must obtain a certificate of probable cause to appeal on any ground covered by the
waiver, not just grounds that were apparent before entry of the plea.
       Attempting to avoid this conclusion, Espinoza argues in her reply brief that she is
not “claiming that her waiver, at the time it was made[,] was not knowing, intelligent[,]
or voluntary” but that “post-plea events . . . rendered the waiver not knowing, voluntary,
or intelligent.” This is a distinction without a difference: even if a waiver could
retroactively become not knowing and intelligent, Espinoza’s contention is still that her
waiver should not be enforced because an aspect of it is invalid.
       Espinoza also relies on the dissent in People v. Moret (2009) 180 Cal.App.4th 839,
which, reaching an issue the majority did not address (id. at pp. 842, 844), concluded that
the defendant’s waiver of the right to appeal and failure to obtain a certificate of probable
cause did not prevent him from challenging a probation condition. (Id. at pp. 883-884
(dis. opn. of Kline, P.J.).) Moret pre-dates Mashburn, however, and the dissent did not
address whether the lack of a certificate of probable cause barred the appeal because the
defendant was effectively challenging the validity of the plea by contending the waiver
was invalid. Instead, the dissent first relied on Vargas and Sherrick to conclude that the
waiver did not encompass the right to challenge the probation condition, and it then
concluded that a certificate of probable cause was not necessary because the defendant
was challenging a condition imposed “after entry of the plea.” (Moret, at pp. 883-884


                                                8
(dis. opn. of Kline, P.J.).) Thus, apart from the fact it is not authority, the Moret dissent,
like the other decisions Espinoza cites, does not support her position because it did not
consider the theory upon which we rely to dismiss her appeal.
         In summary, we hold that when a defendant waives the right to appeal as part of a
plea agreement, and the waiver’s terms encompass the issue the defendant wishes to
raise, the defendant must obtain a certificate of probable cause to avoid dismissal of the
appeal. With a certificate of probable cause in hand, the defendant may argue that the
waiver is not enforceable as to the issue raised, whether because the waiver was not
knowing and intelligent or for some other reason. And if the reviewing court determines
that the waiver is not enforceable, it will reach the merits of the defendant’s underlying
claim.
         We recognize that the failure to obtain a certificate of probable cause will
sometimes result in the dismissal of “potentially meritorious appeals,” but, as Justice
Baxter pointed out, “ ‘[a] strict application of section 1237.5 works no undue hardship on
defendants with [such] appeals.’ ” (Buttram, supra, 30 Cal.4th at p. 793 (conc. opn. of
Baxter, J.).) As he explained, “ ‘[t]he showing required to obtain a certificate is not
stringent,’ ” requiring only a showing that the appeal is not “ ‘ “clearly frivolous and
vexatious,” ’ ” and a defendant who “ ‘fails to persuade the trial court to issue a . . .
certificate . . . has the remedy of filing a timely petition for a writ of mandate’ ” or,
depending on the issue, seeking a writ of habeas corpus. (Ibid.) It is not too much to ask
that defendants who waive their right to appeal as part of a plea obtain a certificate of
probable cause before they can seek to avoid enforcement of the waiver against them.
                                              III.
                                         DISPOSITION
         The appeal is dismissed.




                                               9
                                  _________________________
                                  Humes, P.J.




We concur:




_________________________
Margulies, J.


_________________________
Dondero, J.




People v. Espinoza A151039




                             10
Trial Court:

       Superior Court of the County of Solano



Trial Judge:

       Hon. Wendy G. Getty



Counsel for Defendant and Appellant:

       Garrick Allen Byers, First District Appellate Project


Counsel for Plaintiff and Respondent:

       Xavier Becerra, Attorney General

       Gerald A. Engler, Chief Assistant Attorney General

       Jeffrey M. Laurence, Senior Assistant Attorney General

       Seth K. Schalit, Supervising Deputy Attorney General

       Laurence K. Sullivan, Supervising Deputy Attorney General




People v. Espinoza A151039


                                            11
