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Name: People v. Brown
Case #: B211558
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 01/26/2010

A certificate of probable cause is required when the purpose of an appeal is to ultimately invalidate a plea of guilty or no contest. Appellant’s retained counsel brought a suppression motion that was denied. Appellant then entered into a plea negotiation whereby he was guaranteed a nine-year prison sentence in exchange for his no contest plea to possession of cocaine for sale and admission of a gun enhancement and prior “strike” conviction. At the sentencing hearing, retained counsel advised the court that appellant wished to withdraw his pleas but that he, retained counsel, could not make the motion because of a conflict. Appellant asked the court to appoint counsel to bring the motion as he could not afford to hire another attorney. The court denied the request and sentenced appellant to the agreed-upon term. Appellant filed a notice of appeal indicating that he was appealing from the denial of the suppression motion, but did not obtain a certificate of probable cause. In his opening brief, appellant did not raise the denial of the suppression motion, and instead sought a remand for a new hearing on a motion to withdraw his plea. The court dismissed the appeal for lack of a certificate of probable cause. Like the defendant in People v. Johnson (2009) 47 Cal.4th 668, appellant’s claim of error ultimately sought to invalidate his plea and, thus, required a certificate of probable cause to pursue the appeal. Appellant relied on People v. Earp (2008) 160 Cal.App.4th 1223 as support for his position. Although noting that Johnson did not expressly disapprove Earp, the court observed that the distinction it made in Earp no longer appeared sound.