People v. Embry CA2/6

Filed 9/18/24 P. v. Embry CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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