People v. Moore

Filed 8/9/24 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A167918 v. NATHAN HOWARD MOORE, (Mendocino County Defendant and Appellant. Super. Ct. No. 22CR02044)

Nathan Howard Moore pleaded no contest to the charge of stalking in violation of Penal Code section 646.9, subdivision (a).1 In this appeal, he challenges his permanent revocation of probation following his admission to a probation violation on the grounds of ineffective assistance of counsel, based on his attorney’s failure to request pretrial mental health diversion (§ 1001.36). We hold that defendant was required to obtain a certificate of probable cause to pursue this appeal. (§ 1237.5; Cal. Rules of Court, rule 8.304(b).) The contrary holding in People v. Hill (2021) 59 Cal.App.5th 1190 has been implicitly abrogated by our Supreme Court in People v. Braden (2023) 14 Cal.5th 791. Therefore, we dismiss the appeal because defendant failed to obtain the requisite certificate of probable cause.

1 All statutory references are to the Penal Code.

1

BACKGROUND On September 1, 2022, defendant pleaded no contest to the charge of stalking in violation of section 646.9, subdivision (a). Defendant was sentenced to 36 months of probation and ordered to serve a term in a Mendocino County jail or other approved California correctional facility for 96 days, with credit for 48 days served. After his stalking conviction, defendant violated his probation four times. After defendant admitted his fourth probation violation, the court permanently revoked his probation and sentenced him to two years in prison with credit for 417 days. Defendant filed his notice of appeal on May 19, 2023, indicating that the appeal is based on “[t]he sentence or other matters occurring after the plea or admission that do not affect the validity of the plea or admission.” (California Rules of Court, rule 8.304(b)(2)(B).) Defendant did not request or obtain a certificate of probable cause. DISCUSSION Defendant contends that no certificate of probable cause is required to raise his ineffective assistance of counsel claim because his appeal challenges only the trial court’s sentencing and not the validity of his plea. Defendant alleges that his counsel was ineffective for failing to request pretrial mental health diversion pursuant to section 1001.36. Section 1237.5 precludes appeals from convictions upon pleas of guilty or nolo contendere, or revocation of probation following admission of violation, “except where both of the following are met: [¶] (a) The defendant 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. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the