Filed 5/1/15 P. v. Serrato CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                         H040406
                                                                   (Monterey County
         Plaintiff and Respondent,                                  Super. Ct. No. SS122448A)

         v.

NICOLAS PEREZ SERRATO,

         Defendant and Appellant.



         Pursuant to a negotiated disposition, appellant Nicolas Perez Serrato pleaded no
contest to one count of theft of over $950 by an employee. (Pen. Code, § 508.)
As promised, the court placed appellant on formal probation for a period of three years
and imposed various terms and conditions of probation. Three of those probation
conditions are challenged on appeal. For reasons that follow, we must dismiss the appeal
for lack of a certificate of probable cause.
                                                     Background
         We take the facts of the underlying crime from the probation officer’s report.
         From December 4 to December 24, 2012, appellant was employed at Target and
stole several items from the Target stock room. Appellant admitted the thefts and
estimated the value of the items at over $20,000. However, Target was able to verify that
only $7,081 of merchandise was stolen.
       Appellant executed a written plea agreement in which he acknowledged that
another case—case No. SS130178A—would be dismissed at sentencing with a Harvey
waiver (People v. Harvey (1979) 25 Cal.3d 754), meaning that the sentencing judge could
take that case into consideration when sentencing appellant on this case. Since case
No. SS130178A was not consolidated with this case, the only facts underlying that case
are contained in the probation officer’s report. According to that report, appellant and his
codefendant brother-in-law Jesus Ayala were charged with receiving stolen property
(Pen. Code, § 496, subd. (a)) following a search warrant service and bail compliance
search at 30945 Tavernetti Road in Gonzales. The police ordered all occupants out of the
home via loudspeaker. As the occupants began to depart the residence, it was noted that
the garage light had been turned on and then off. The people that came out of the home
were Maria Ayala, Jesus Ayala, Maria and Jesus’s four-year-old minor daughter, and
appellant. A search of the residence yielded a black canvas bag found in the garage that
contained four handguns, ammunition, magazines, gun cleaning supplies; 50-round and
20-round magazines for a .22-caliber rifle; and other items. The canvas bag was located
in a metal tool chest that was in the garage. A search of the garage revealed eight
additional firearms and containers with ammunition.
       As part of the plea bargain in this case, appellant executed a waiver of his
appellate rights. Specifically, appellant agreed to “waive and give up all rights regarding
state and federal writs and appeals. This includes, but is not limited to, the right to appeal
my conviction, the judgment, and any other orders previously issued by this court.
I agree not to file any collateral attacks on my conviction or sentence at any time in the
future.” (Italics added.) When the court went over the plea bargain conditions with
appellant the court indicated that appellant was “waiving [his] rights to writs and appeals.
And that means that you will not be filing any State or Federal writs of appeals. That
includes, but is not limited to, the right to appeal your conviction, the judgment, and any


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other order previously issued by the Court.” Appellant confirmed that the court’s
understanding was correct.
                                         Discussion
       Respondent argues that since appellant expressly waived his right to appeal and
his right to challenge his probation conditions as part of his plea bargain, he is required to
request a certificate of probable cause. Respondent urges us to dismiss the appeal.
       Under Penal Code section 1237.5, a defendant generally may not appeal from a
judgment of conviction following a guilty or no contest plea, unless he files with the trial
court a statement “showing reasonable, constitutional, jurisdictional, or other grounds
going to the legality of the proceedings” (Pen. Code, § 1237.5, subd. (a)), and the trial
court executes and files “a certificate of probable cause for such appeal with the clerk of
the court” (Id., § 1237.5, subd. (b)); See also People v. Maultsby (2012) 53 Cal.4th 296,
299 (Maultsby); People v. Cole (2001) 88 Cal.App.4th 850, 859-860 (Cole); Cal. Rules of
Court, rule 8.304(b).) 1 “The purpose of section 1237.5 is practical and salutary: ‘to
discourage and weed out frivolous or vexatious appeals challenging convictions
following guilty and nolo contendere pleas,’ and to do so ‘ “before time and money is
spent preparing the record and the briefs for consideration by the reviewing court.” ’
[Citation.] The requirements of section 1237.5 . . . must be strictly applied. [Citation.]
The Supreme Court has disapproved the practice of applying the rule loosely in order to
reach issues whose consideration would otherwise be precluded. [Citation.]” (Cole,
supra, at p. 860, fn.omitted; see also Maultsby, supra, at pp. 298-299.)
       Nevertheless, the law recognizes an exception to Penal Code section 1237.5’s
certificate requirement. This exception, stated in rule 8.304(b)(4)(B), permits an appeal
without a probable cause certificate if the appeal is based on “[g]rounds that arose after
entry of the plea and do not affect the plea’s validity.” (See also Maultsby, supra, 53


1
       All references to rules are to the California Rules of Court.
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Cal.4th at p. 299 fn. 2; Cole, supra, 88 Cal.App.4th at p. 860 [citing to former
rule 31(d)].)
       Respondent argues that the inclusion of the words “the judgment” in appellant’s
waiver form indicates that future sentencing errors were contemplated when appellant
waived his right to appeal. We agree.
       The judgment in a criminal case is the oral pronouncement of sentence. (See
People v. Mesa (1975) 14 Cal.3d 466, 471; Pen. Code, § 1202.) As this court has
explained before, “[i]n a criminal case, it is the oral pronouncement of sentence that
constitutes the judgment.” (People v. Scott (2012) 203 Cal.App.4th 1303, 1324.)
       Although the notice of appeal in the present case states it is based “on the sentence
or other matters occurring after the plea that do not affect the validity of the plea[,]”
“ ‘ [i]n determining whether section 1237.5 applies to a challenge of a sentence imposed
after a plea of guilty or 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. [Citation.]’ [Citation.]” (People v.
Buttram (2003) 30 Cal.4th 773, 781-782 (Buttram ); see also People v. Panizzon (1996)
13 Cal.4th 68, 76 (Panizzon).)
       In Panizzon, the defendant agreed to a plea bargain that called for him to receive a
specified sentence and the prosecution agreed to dismiss several charges. (Panizzon
supra, 13 Cal.4th at p. 73.) After the defendant was sentenced to the negotiated term, he
appealed without first obtaining a certificate of probable cause, contending the sentence
violated the federal and state prohibitions against cruel and unusual punishment. (Id. at
p. 74.) The Supreme Court concluded that since the defendant was “in fact challenging
the very sentence to which he agreed as part of the plea,” the challenge “attacks an
integral part of the plea [and] is, in substance, a challenge to the validity of the plea,
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which requires compliance with the probable cause certificate requirements of
section 1237.5.” (Id. at p. 73; see also id. at p. 78, [by contesting the constitutionality of
the very sentence he negotiated as part of the plea bargain, [the] defendant is, in
substance, attacking the validity of the plea].) The Supreme Court dismissed the appeal
because the defendant did not obtain a certificate of probable cause. (Id. at pp. 89-90.)
       In contrast, in Buttram, the Supreme Court considered a situation where the
defendant pleaded guilty to felony drug charges in return for an agreed maximum
sentence. (Buttram, supra, 30 Cal.4th. at p. 776.) Thereafter, the defendant appealed the
trial court’s denial of diversion and imposition of the maximum term. (Ibid.) The
Supreme Court held the defendant was not required to obtain a certificate of probable
cause because, “absent contrary provisions in the plea agreement itself, a certificate of
probable cause is not required to challenge the exercise of individualized sentencing
discretion within an agreed maximum sentence. Such an agreement, by its nature,
contemplates that the court will choose from among a range of permissible sentences
within the maximum, and that abuses of this discretionary sentencing authority will be
reviewable on appeal, as they would otherwise be.” (Id. at pp. 790-791.)
       Buttram is instructive in the present case expressly because the Supreme Court
noted that the defendant did not, in pleading guilty, waive his right to appeal as to
sentencing. (Buttram, supra, 30 Cal.4th at pp. 777-778, 787.) Justice Baxter, who
authored Buttram, wrote in a separate concurring opinion, “A prime reason why we
conclude here that defendant Buttram may take his appeal without a certificate, and that
the Court of Appeal must address it on the merits, is that Buttram’s plea is silent on the
appealability of the trial court’s sentencing choice. [¶] Yet it is well settled that a plea
bargain may include a waiver of the right to appeal.” (Id. at p. 791.) If the plea bargain
had included an express waiver of appeal, “an 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
                                               5
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.” (Id. at p. 793.) Finally, Justice Baxter pointed out that “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.” (Ibid.)
       Appellant claims that “appellate waivers do not include errors the court made after
waiver and entry of plea because waiver of appeal from those errors could not be made
knowingly and intelligently.” Appellant would be correct if his appellate waiver was just
a general waiver of the right to appeal. Here, however, appellant specifically waived his
right to appeal the judgment.
       Under the reasoning of Panizzon and Justice Baxter’s concurrence in Buttram,
supra, 30 Cal.4th 773, the substance of the appeal in the present case is a challenge to the
validity of the waiver of the right to appeal the judgment in the plea bargain and, thus, the
plea itself. (Id. at p. 793.) Appellant’s challenge to his sentence may be heard only if the
waiver of the right to appeal the judgment is unenforceable, which is an issue for which
appellant was obligated to obtain a certificate of probable cause. (Ibid.)
                                         Disposition
       The appeal is dismissed for lack of a certificate of probable cause.




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                                  _________________________________
                                  ELIA, J.


WE CONCUR:




_______________________________
RUSHING, P. J.




_______________________________
PREMO, J.
