People v. Embry CA2/6 ( 2024 )

Filed 9/18/24 P. v. Embry CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B332695
(Super. Ct. No. BA510806)
Plaintiff and Respondent, (Los Angeles County)
v.
CHARLES EMBRY,
Defendant and Appellant.
Charles Embry appeals from the judgment after he pleaded
no contest to one count of making a criminal threat (Pen. Code,1
§ 422, subd. (a)). He contends the trial court erred in finding him
unsuitable for pretrial mental health diversion pursuant to
section 1001.36. The Attorney General contends the appeal
should be dismissed because Embry did not obtain the requisite
certificate of probable cause. (§ 1237.5; Cal. Rules of Court, rule
8.304(b); People v. Robinson (2024) 100 Cal.App.5th 133, 136
1
Further unspecified statutory references are to the Penal
Code.
(Robinson).) We agree with the Attorney General and dismiss
the appeal.
FACTUAL AND PROCEDURAL HISTORY
Embry was charged with making a criminal threat (§ 422,
subd. (a).) He filed a motion for pretrial mental health diversion
pursuant to section 1001.36. The trial court denied his motion,
finding him eligible but not suitable for mental health diversion.
The court found that Embry could not be treated safely in the
community based on his criminal history.
Thereafter, defense counsel stated, “[I]n light of [the denial
of diversion], the People had made an offer . . . for Mr. Embry to
be placed on probation . . . and I believe Mr. Embry is willing to
agree to that and enter a plea of no contest.” Embry then pleaded
no contest to making a criminal threat (§ 422, subd. (a)).
Pursuant to a plea agreement, the trial court granted the
People’s motion to dismiss Embry’s two prior strikes and Embry
was placed on probation for two years with various conditions,
including that he enroll in and complete a 90-day residential
treatment program, followed by a six-month outpatient program.
Embry filed a notice of appeal from the order denying his
motion for health diversion. He did not obtain a certificate of
probable cause.
DISCUSSION
Pursuant to section 1237.5 and California Rules of Court,
rule 8.304(b), no appeal may be taken from a judgment from a no
contest plea unless (1) a defendant has filed “a written statement
. . . showing reasonable constitutional, jurisdictional, or other
grounds going to the legality of the proceedings,” and (2) the trial
court has executed and filed a certificate of probable cause for
such an appeal. Issues pertaining to the validity of a plea require
2
compliance with section 1237.5. (People v. Buttram (2003) 30
Cal.4th 773, 781 (Buttram).) Without a certificate of probable
cause, “the appellate court lacks authority . . . to consider the
claim” and the court must order dismissal. (People v. Espinoza
(2018) 22 Cal.App.5th 794, 797; People v. Mendez (1999) 19
Cal.4th 1084, 1099.)
However, a certificate of probable cause is not required for
an appeal based on or from the “sentence or other matters
occurring after the plea or admission that do not affect the
validity of the plea or admission.” (Cal. Rules of Court, rule 8.304
(b)(2)(B).) “ ‘In 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.” [Citations.] 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.]” (Buttram, supra, 30 Cal.4th at p. 781.)
In Robinson, the appellant raised an ineffective assistance
of counsel claim based on his counsel’s failure to request pretrial
mental health diversion. The Court of Appeal dismissed the
appeal on the ground that the appellant had not obtained a
certificate of probable cause. (Robinson, supra, 100 Cal.App.5th
at p. 135.) In concluding that a certificate of probable cause was
required, the court relied on our Supreme Court’s decision in
People v. Braden (2023) 14 Cal.5th 791 (Braden). Braden held
that a request for mental health diversion must be made before
the attachment or jeopardy at trial or the entry of a guilty or no
contest plea. (Braden, at p. 819.) In the wake of Braden,
3
Robinson reasoned that “an attorney’s failure to request pretrial
mental health diversion cannot, by definition, be a ‘matter
occurring after the plea’ ” that is appealable without a certificate
of probable cause. (Robinson, at p. 136; Cal. Rules of Court, rule
8.304(b)(2)(B).) Accordingly, the appellant’s claim on appeal
required a certificate of probable cause because the grounds for
appeal arose before he entered his plea. (Robinson, at p. 136.)
We agree with the reasoning in Robinson. A grant of
mental health diversion postpones the prosecution of criminal
charges, and a defendant who satisfactorily performs in diversion
is entitled to have their charges dismissed. (§ 1001.36, subds. (f)
& (h).) It follows that had Embry’s request for diversion been
granted, he would not have entered a no contest plea. Defense
counsel noted that “in light of [the court’s denial of diversion]”
Embry was “willing to agree” to the plea offer. His claim of error
on appeal thus implies that his subsequent plea was induced by
error, rendering it invalid when entered. (See People v. Padfield
(1982) 136 Cal.App.3d 218, 228 [“wrongful denial of pretrial
diversion constitutes ‘other grounds going to the legality of the
proceedings’ (Pen. Code, § 1237.5), and may be raised on appeal”
if a certificate of probable cause was obtained].) Therefore, we
conclude Embry’s claim on appeal is “in substance a challenge to
the validity of the plea” and subject to the requirements of section
1237.5. (Buttram, supra, 30 Cal.4th at p. 782; see Robinson,
supra, 100 Cal.App.5th at p. 136, fn. 2.)
Embry urges us to follow People v. Hill (2021) 59
Cal.App.5th 1190. In Hill, the appellant contended his counsel
rendered ineffective assistance for failure to request a hearing on
his eligibility for pretrial mental health diversion. (Id. at pp.
1192-1193.) The Court of Appeal held that “no certificate of
4
probable cause was required” because the claim did “not attack
the validity of [the] plea and instead challenge[d] the trial court’s
sentencing discretion relating to the application of section
1001.36.” (Id. at p. 1195.) We respectfully disagree with Hill
that the claim did not attack the validity of the plea. As
explained in Robinson, supra, 100 Cal.App.5th at p. 136, Hill was
decided before Braden, supra, 14 Cal.5th 791, and Braden
implicitly abrogated Hill as to its interpretation that a request
for mental health diversion is a sentencing matter occurring after
the plea. (Robinson, at p. 136 & fn. 2.)2
Embry acknowledges Robinson but contends that it was
decided after he filed his notice of appeal. He asserts that Hill
was governing law at the time and that it would be unfair to
apply Robinson here. We are unpersuaded. Braden implicitly
abrogated Hill (Robinson, supra, 100 Cal.App.5th at p. 136), and
Braden was decided on June 5, 2023, before Embry filed his
notice of appeal on July 25, 2023. Thus, Embry was on notice
that reliance on Hill, would, at best, be questionable.
Moreover, Hill is distinguishable from our case. Unlike the
defense counsel in Hill, Embry’s counsel requested pretrial
mental health diversion, and the trial court denied the request
after a hearing. Only after that denial did Embry consider and
accept the prosecution’s probationary plea offer and dismissal of
his two strike priors. The trial court then imposed the negotiated
sentence—two years’ probation. Under these circumstances,
where the court imposed the negotiated sentence, we reject
2 After briefing was completed, People v. Moore (2024) 104
Cal.App.5th 90 was decided. Moore, which was authored by the
same justice who authored Hill, recognized that Hill had been
implicitly abrogated by Braden. (Moore, at p. 94.)
5
Embry’s claim of error as one relating to the court’s sentencing
discretion not subject to the requisite certificate of probable
cause.
Embry also relies on People v. Oglesby (2008) 158
Cal.App.4th 818, but that case is distinguishable. In Oglesby, the
defendant appealed on the ground that the trial court failed to
hold a mental competency hearing after he entered his plea but
before sentencing. (Id. at p. 827.) The Court of Appeal held that
no certificate of probable cause was required because defendant’s
appeal concerned a postplea question. It noted that the only
issue raised was “whether the court should have halted the
proceedings to determine if he would be able to understand the
nature of the sentencing proceedings in the future. He does not
seek to set aside the plea, or his bargained for six-year sentence.”
(Ibid.) Unlike Oglesby, Embry’s appeal of the denial of mental
health diversion concerns a preplea question. (Braden, supra, 14
Cal.5th at p. 819.) Thus, a certificate of probable cause was
required for appeal. (Robinson, supra, 100 Cal.App.5th at p.
136.)
Lastly, Embry claims that counsel’s failure to obtain a
certificate of probable cause constituted ineffective assistance of
counsel. But if “ ‘ “ the record on appeal sheds no light on why
counsel acted or failed to act in the manner challenged[,] . . .
unless counsel was asked for an explanation and failed to provide
one, or unless there simply could be no satisfactory explanation,”
the claim on appeal must be rejected.’ [Citations.] A claim of
ineffective assistance in such a case is more appropriately
decided in a habeas corpus proceeding.” (People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266-267.) Because the record here sheds
6
no light as to why counsel did not seek a certificate of probable
cause, we reject the ineffective assistance of counsel claim.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P. J.
YEGAN, J.
7
Richard S. Kemalyan, Judge
Superior Court County of Los Angeles
______________________________
Arielle Bases, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Ana R. Duarte and Kenneth C. Byrne, Deputy
Attorneys General, for Plaintiff and Respondent.