Unreported / Non-Citable
Background
Defendant Clifford Dale Salsbury entered a plea agreement under which he pled no contest to one count of making criminal threats under Penal Code section 422, subdivision (a), and admitted the aggravating circumstance that he was armed with or used a weapon during the offense. The trial court suspended imposition of sentence and admitted him to three years of probation, conditioned on serving the first 270 days in county jail. Among the conditions was a 10-year criminal protective order under section 136.2, subdivision (i)(1), protecting the named victim and two confidential victims.
Salsbury, proceeding in propria persona, filed notices of appeal challenging the protective order because the protected persons lived in his house, leaving him homeless and unable to retrieve his belongings. One notice also appeared to seek withdrawal of the plea, asserting that he did not commit the crime and pled out of fear of prison. He did not request a certificate of probable cause. Appellate counsel filed a Wende brief identifying no arguable issues, and Salsbury did not file a supplemental brief within the allotted 30 days.
The Court’s Holding
The court first held that the plea challenge was not reviewable. Section 1237.5 bars an appeal from a conviction on a nolo contendere plea unless the defendant filed a sworn statement showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings and the trial court executed and filed a certificate of probable cause. Citing People v. Panizzon, the court explained that issues going to the validity of a plea require compliance with section 1237.5. Because Salsbury did not seek a certificate, his claim effectively seeking to withdraw the plea was not reviewable.
The court next held that the protective-order challenge likewise required a certificate. Although an exception permits appeal after a no-contest plea without a certificate for post-plea matters that do not affect the plea's validity, a certificate is required when the challenge goes to an aspect of the sentence that the defendant agreed to as an integral part of the plea agreement. Here the protective order was an agreed condition: the felony advisement and plea form noted it, and the prosecutor mentioned it at the plea hearing. The challenge was therefore in substance a challenge to the validity of the plea. The court added that Salsbury had not asserted any error in the protective order itself.
After independent Wende review of the record, the court found no reasonably arguable factual or legal issues and affirmed the judgment.
Key Takeaways
- A challenge to a protective order that was an agreed term of a plea agreement is treated as a challenge to the validity of the plea and requires a certificate of probable cause under section 1237.5.
- Even a purported challenge only to the sentence requires a certificate when it attacks an aspect of the sentence that was an integral part of the plea agreement.
- The crucial question is what the defendant is challenging, not the time or manner in which the challenge is made.
- A defendant who pleads no contest without obtaining a certificate of probable cause cannot raise on appeal claims that effectively seek to withdraw the plea.
- Under Wende, when counsel finds no arguable issues, the appellate court independently reviews the record and may affirm when no reasonably arguable factual or legal issues exist.
Why It Matters
The unpublished decision reinforces that a defendant cannot avoid the certificate-of-probable-cause requirement by framing an appeal as a challenge to a sentencing term when that term was part of the negotiated plea. The plea form's notation that a protective order was included was central to the court's conclusion.
The opinion also shows the practical consequence of failing to obtain a certificate: a no-contest defendant who later challenges any integral part of the plea agreement, including a protective order, forfeits appellate review of that claim. Because the opinion is not certified for publication, its precedential effect is limited under California Rules of Court, rule 8.1115.