Filed 11/30/18 P. v. Hopkins CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, A153756

v. (Napa County

Super. Ct. No. CR184555)

KLARK DEZIRAY HOPKINS,

Defendant and Appellant.

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Klark Deziray Hopkins pleaded no contest to the charge of driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer. (Veh. Code, § 2800.2.) The court placed Hopkins on three years of probation. Hopkins appeals. She challenges a probation condition and the court’s imposition of a restitution fine. However, as part of her plea bargain, Hopkins waived her right to appeal. Her appeal challenges the breadth of her waiver and therefore the validity of her plea. As a result, it requires a certificate of probable cause. (Pen. Code, § 1237.5.)[1] Hopkins did not obtain one, so we dismiss her appeal without reaching the merits of her contentions.

FACTUAL AND PROCEDURAL BACKGROUND

On September 1, 2017, Hopkins was arrested after leading police officers on a high-speed car chase in Napa County, California. She was charged with assault upon a peace officer (§ 245, subd. (c); count one), driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2; count two), and driving with a suspended license (Veh. Code, § 14601, subd. (a); count three).

On November 7, 2017, Hopkins pleaded no contest to count two, and the district attorney dismissed the other charges. The plea form stated, in handwriting, that Hopkins “will receive probation with full search & seizure, [n]o additional jail, testing, no illegal drugs, probation term 3 years no early termination, waive appeal, [n]o [g]uns/weapons/ ammo[,] dismiss remaining charges as to Ms. Hopkins.”

On January 30, 2018, the court suspended imposition of sentence and placed Hopkins on three years of probation. The court imposed probation conditions, including the condition that she “not use, consume or possess any marijuana[.]” The court ordered Hopkins to pay restitution to the American Canyon Police Department in the sum of $3,243.72.

DISCUSSION

On appeal, Hopkins challenges the probation condition prohibiting marijuana use and the restitution fine. We do not reach the merits of Hopkins’s claims because we must dismiss her appeal.

Under section 1237.5, a defendant cannot appeal from a judgment of conviction following a no contest plea, unless she files with the trial court a statement “showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings,” and the trial court executes and files “a certificate of probable cause for such appeal with the clerk of the court.” (§ 1237.5, subds. (a), (b).) “ ‘The purpose of section 1237.5 is . . . “to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas,” ’ ” and the “ ‘requirements of section 1237.5 . . . must be strictly applied.’ ” (People v. Mashburn (2013) 222 Cal.App.4th 937, 941 (Mashburn).)

There is an exception to the certificate requirement when the appeal is based on “[g]rounds that arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(4).) “ ‘In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of . . . 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.” ’ ” (People v. Buttram (2003) 30 Cal.4th 773, 781.)

“[A] defendant who waives the right to appeal as part of a plea agreement must obtain a certificate of probable cause to appeal on any ground covered by the waiver, regardless of whether the claim arose before or after the entry of the plea. Absent such a certificate, the appellate court lacks authority under California Rules of Court, rule 8.304(b) to consider the claim because it is in substance a challenge to the validity of the appellate waiver, and therefore to the validity of the plea.” (People v. Espinoza (2018) 22 Cal.App.5th 794, 797 (Espinoza).)

Here, Hopkins’s plea form expressly stated “waive appeal,” or, in other words, that she waived her right to appeal. Hopkins did not obtain a certificate of probable cause. Therefore, we must dismiss her appeal and cannot reach the merits of her claims. (Mashburn, supra, 222 Cal.App.4th at p. 943 [“If the plea bargain had included an express waiver of appeal, ‘an attempt to appeal the sentence notwithstanding the waiver would necessarily be an attack on an express term, and thus on the validity, of the plea.’ ”].)

Hopkins attempts to distinguish Espinoza and Mashburn by arguing the defendants in those cases broadly waived their right to appeal, but Hopkins did not do so. She argues her “waiver of the right to appeal expressly applied to illegal drugs, not legal drugs.” We are not persuaded. The plea form stated Hopkins “waive[d] appeal,” and she initialed the form indicating she reviewed its terms. At the hearing on her plea, Hopkins answered affirmatively to the court’s questions regarding whether she had an opportunity to read the plea form or have it read to her, and whether she had adequate time to discuss it with her attorney. Hopkins had no questions for the court. Her attorney joined “in the waiver, [and] consent to the plea.” The court found Hopkins “made a knowing, intelligent, voluntary waiver of her rights.” There is no indication this waiver of the right to appeal was limited to a particular subject matter, such as the right to challenge probation conditions prohibiting the use of illegal drugs, but not legal ones.

More fundamentally, Hopkins’s attempt to limit the scope of her waiver is itself a challenge to “the validity of the waiver . . . and, thus, the plea itself.” (Mashburn, supra, 222 Cal.App.4th at p. 943.) As a result, a certificate of probable cause was required to argue her waiver of the right to appeal does not apply to her challenge to probation conditions or the restitution fine. We are required by statute to dismiss Hopkins’s appeal. (§ 1237.5.)

For the first time in her reply brief, Hopkins argues a certificate of probable cause is not necessary when challenging “later, unknown, future errors.” Ordinarily, we will not consider arguments made for the first time on reply. (In re Groundwater Cases (2007) 154 Cal.App.4th 659, 693.) In any event, the same argument was considered and rejected in Espinoza, supra, 22 Cal.App.5th at pages 801–802. We agree with the reasoning of Espinoza and adopt it as our own. Nor can we address on direct appeal Hopkins’s argument that defense counsel provided ineffective assistance by failing to obtain a certificate of probable cause.

DISPOSITION

The appeal is dismissed.

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Jones, P.J.

We concur:

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Simons, J.

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Needham, J.

A153756