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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              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.

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       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


                                              4
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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