People v. Robinson

Filed 3/1/24 CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A165379 v. LAMAR DUANE ROBINSON, (Sonoma County Super. Ct. No. SCR7490361) Defendant and Appellant.

Lamar Duane Robinson pleaded nolo contendere to two felonies pursuant to a negotiated plea agreement. In this appeal, he challenges the resulting judgment of conviction on three closely related grounds: (1) ineffective assistance of counsel (IAC), based on his attorney’s failure to request pretrial mental health diversion (Pen. Code, § 1001.36);1 (2) the trial court’s alleged violation of its purported sua sponte duty to consider Robinson’s eligibility for such diversion; and (3) the retroactive effect of recent amendments to the mental health diversion statute. In the published part of this opinion we reject Robinson’s claims for failure to procure a certificate of probable cause. The judgment is affirmed.

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this

opinion is certified for publication with the exception of parts 2 and 3. 1 All undesignated statutory references are to the Penal Code. All “rule”

references are to the California Rules of Court.

1

BACKGROUND On March 2, 2022, Robinson pleaded no contest to carrying a concealed dirk or dagger (§ 21310) and grand theft from person (§ 487, subd. (c)). He also admitted a prior serious or violent felony conviction under section 1170.12. After denying Robinson’s motion to strike the prior conviction, the trial court sentenced him to an aggregate term of five years and four months in state prison. Robinson filed his notice of appeal on May 26, indicating that the appeal was “based on the sentence or other matters occurring after the plea that do not affect the validity of the plea. ([R]ule 8.304(b).)” There was no certificate of probable cause. DISCUSSION 1. A Certificate of Probable Cause Is Required for Claims of Error Concerning Pretrial Mental Health Diversion Under Section 1001.36 Robinson contends that no certificate of probable cause is required to raise his IAC claim. According to him, his counsel committed IAC by failing to request pretrial mental health diversion. We disagree. “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of . . . nolo contendere, . . . 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 clerk of the court.” (§ 1237.5.) A certificate of probable cause is not “required for an appeal based on . . . [¶] . . . [¶] [t]he sentence or other matters occurring after the plea or