People v. Saleh CA1/2 ( 2021 )

Filed 1/6/21 P. v. Saleh CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A158509
v.
WASAIM QAHTAN SALEH, (Solano County
Super. Ct. No. VCR230787)
Defendant and Appellant.
Wasaim Qahtan Saleh appeals from the trial court’s orders following
his admission of a probation violation, at which time the court issued a 10-
year criminal protective order. On appeal, appellant contends the court did
not have statutory authority to include appellant’s two minor children in the
criminal protective order because they were not victims of the crime of which
appellant was convicted. Appellant, however, expressly agreed to those
terms when he admitted violating probation, and he was therefore required
to obtain a certificate of probable cause before filing his notice of appeal.
Because he failed to do so, we shall dismiss the appeal.
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PROCEDURAL BACKGROUND
On March 13, 2018, appellant was charged by information with making
criminal threats (Pen. Code, § 422—count 1);1 assault with a firearm (§ 245,
subd. (a)(2)—count 2); corporal injury on a spouse or cohabitant (§ 273.5,
subd. (a)—counts 3 & 5); assault by means likely to produce great bodily
injury (§ 245, subd. (a)(4)—counts 4 & 6); torture (§ 206—count 7); and
cruelty to a child by inflicting injury (§ 273a, subd. (b)—counts 8 & 9). The
information alleged as to counts 1 and 2 that appellant personally used a
firearm within the meaning of sections 1203.06, subdivision (a)(1) and
12022.5, subdivision (a)(1).
On April 30, 2018, appellant pleaded no contest to count 4 and the
prosecution dismissed the remaining charges with a Harvey2 waiver.
On June 22, 2018, the trial court placed appellant on formal probation
for three years. The court ordered appellant to have no contact with the
victim—his wife—except for telephone contact for child-exchange purposes
and in-person contact for exchange of the children under police supervision.
On July 25, 2019, the prosecutor filed a request for revocation of
appellant’s probation for failure to obey the criminal protective order. On
August 16, 2019, appellant admitted the probation violation and his
probation was revoked.
On September 19, 2019, the court sentenced appellant to the middle
term of three years in state prison on count 4, assault by means likely to
produce great bodily injury (§ 245, subd. (a)(4)). The court issued a new 10-
year criminal protective order prohibiting appellant from contact with his
All further statutory references are to the Penal Code unless
1
otherwise indicated.
2
People v. Harvey (1979) 25 Cal.3d 754, 758.
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wife, as well as his two minor children, with an exception for a subsequent
family law court order permitting visitation between appellant and the
children.
On September 25, 2019, appellant filed a notice of appeal.
FACTUAL BACKGROUND
The following facts are taken from the June 25, 2018 presentence
report. Victim, appellant’s wife, “went to the Solano County Sheriff’s Office
in regards to a domestic violence complaint. [The victim] stated she and the
defendant had been married for 10 years but were separated and have two
children ages 9 and 6. On 4-28-17, [the victim] went to the home of the
defendant’s parents to pick up her children and take them to her home. As
the victim walked up to the front door of the home, the defendant opened the
door. The victim told police the defendant had been upset with her because
she was six and a half months pregnant and refused to get an abortion.
“The defendant had a gun in his left hand while standing near the door.
When the victim greeted the defendant, he began yelling obscenities in
Arabic at her. He pointed the handgun at the victim’s head and stated in
Arabic, ‘Bitch, you’re going to die.’ The victim told sheriff’s deputies she was
scared for her life and genuinely believed the defendant was going to kill her
because she refused to get an abortion. During the altercation, the victim
and defendant’s two children were standing near the doorway and could see
both the defendant and the victim.
“The defendant reached out and pushed the victim, causing her to fall
backwards and down four concrete steps from the porch onto the ground and
twist her ankle. When brought into the house by her father-in-law, the
defendant poked at her with a wooden broom, striking her once in the face.
Eventually, the victim was able to go out to her vehicle with her children,
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however, the defendant punched the victim once while she was sitting in the
driver’s seat of her vehicle.
“The victim went home with her children and a few hours later, the
defendant arrived and kicked and beat the victim throughout the evening,
resulting in the victim’s two front teeth being broken. As the victim was
searching for her teeth on the floor while actively bleeding, the defendant
continued to strike her multiple times all over her body. [The victim] finally
told one of her children to call the police. The defendant said ‘sorry’ and then
left the residence. [The victim] told deputies their two children were home
and saw the incident between the defendant and the victim.”
DISCUSSION
I. Trial Court Background
At the August 16, 2019 hearing on appellant’s probation violation,
defense counsel asked that the two minor children not be included in the 10-
year criminal protective order as a term of appellant’s admission of probation
violation, as the prosecution had requested. Counsel believed it would be
best to let the family law court determine whether there should be contact
between appellant and the children. The court rejected this request, stating
if the parties did not reach an agreement and appellant went forward with a
probation revocation hearing, the court would include the minor children, as
well as appellant’s wife, in the 10-year protective order, subject to any
changes made in a subsequent family law order. When the court asked if
appellant “wish[ed] to admit under those terms or not,” or if the court should
instead set a hearing on the probation violation, defense counsel responded
that appellant was prepared to admit the probation violation “with the terms
that [the court] just indicated.”
The court then engaged in the following exchange with appellant.
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“THE COURT: [Appellant], did you hear and understand all of that?
“THE DEFENDANT: Yes.
“THE COURT: Did you wish to admit knowing these are the
consequences?
“THE DEFENDANT: Yes.”
After appellant affirmed that he understood all the rights he had given
up when he signed and initialed the waiver of rights form, under which he
would receive the midterm of three years in prison and any new charges
based on the probation violation would be dismissed, the following exchange
took place.
“THE COURT: You understood and heard everything regarding the
ten-year protective order, no contact with the victim in this case along with
the children except as set forth in any valid law family court order issued
after this date. Do you understand all that?
“THE DEFENDANT: Yes.
“THE COURT: Having all these rights and consequences in mind, is it
your desire to give up these rights in order to admit you violated your
probation?
“THE DEFENDANT: Yes.”
Appellant then admitted that he had violated the probation condition
that he obey all laws when he made contact with the victim, in violation of a
lawful restraining order (§ 273.6). The court accepted appellant’s admission,
found that it was knowing, intelligent, and voluntary, and set the sentencing
hearing for a month later.
Prior to sentencing, defense counsel filed a supplemental sentencing
memorandum in which she argued that there was no legal authority or
evidentiary grounds for including the two minor children in the criminal
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protective order and that, moreover, the children and the victim did not wish
for them to be included. Although counsel acknowledged that during the
hearing at which appellant admitted the probation violation, “the court
emphasized that [appellant] was to have ‘no contact with the victim along
with the children except as set forth in any valid law family court order [sic]’
issued after the date of his plea,” she further stated that appellant “stands by
his admission of the probation violation, but disputes the validity of the CPO
[criminal protective order] as indicated by this court.”
The prosecutor filed a responsive memorandum in which she argued
that the children should be included in the protective order, noting that this
had been an agreed upon component of appellant’s admission to a violation of
probation in exchange for a three-year prison term and no additional charges
related to the violation. The prosecutor further explained: “Rather than
filing additional violations of [the then current protective order], the People
agreed to allow [appellant] to plead to a probation violation for a midterm 3-
year resolution and a 10-year CPO for the children and the victim . . . . On
[appellant’s] plea form, it clearly indicates that part of the resolution is the
agreement not to file any additional charges from violations that occurred
before the date of sentencing. Defense now seeks to persuade the court not to
impose a 10-year protective order for the victim and minor children.”
At the September 17, 2019 sentencing hearing, following arguments of
counsel about whether the children should be included in the criminal
protective order, the court sentenced appellant to three years in prison, as
previously agreed. The court then rejected defense counsel’s most recent
arguments against inclusion of the children in the criminal protective order
and issued a protective order on the same terms appellant had agreed to
when he admitted the probation violation.
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II. Legal Analysis
Appellant contends the court did not have authority under section
136.23 to include appellant’s two minor children in the criminal protective
order because they were not victims of the crime of which appellant was
convicted.
Before addressing this contention on the merits, we must first address
respondent’s argument that this claim is not cognizable on appeal because
appellant’s challenge to the terms of the criminal protective order is in
essence a challenge to the validity of his admission of a violation of probation,
and appellant did not obtain a certificate of probable cause as is required
before such a challenge may be raised on appeal. (See § 1237.5; Cal. Rules of
Court, rule 8.304(b)(1).)4
Section 1237.5 provides: “No appeal shall be taken by the defendant
from a judgment of conviction upon a plea of guilty or nolo contendere, or a
revocation of probation following an admission of violation, except where both
of the following are met:
3
Section 136.2, subdivision (i)(1) provides: “When a criminal defendant
has been convicted of a crime involving domestic violence as defined in
[enumerated statutes], the court, at the time of sentencing, shall consider
issuing an order restraining the defendant from any contact with a victim of
the crime. The order may be valid for up to 10 years, as determined by the
court. This protective order may be issued by the court regardless of whether
the defendant is sentenced to the state prison or a county jail or subject to
mandatory supervision, or whether imposition of sentence is suspended and
the defendant is placed on probation. It is the intent of the Legislature in
enacting this subdivision that the duration of a restraining order issued by
the court be based upon the seriousness of the facts before the court, the
probability of future violations, and the safety of a victim and the victim’s
immediate family.”
4
All further rule references are to the California Rules of Court.
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“(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.” (Italics added.)
“It has long been established that issues going to the validity of a plea
require compliance with section 1237.5. [Citation.]” (People v. Panizzon
(1996) 13 Cal.4th 68, 76 (Panizzon); see also People v. Billetts (1979) 89
Cal.App.3d 302, 306–308 [“Absent a certificate of probable cause, the issues
raised by defendant concerning the validity of his admission of violation of
probation, are not reviewable on appeal”]; accord, People v. Ramirez (2008)
159 Cal.App.4th 1412, 1428.) “The purpose for requiring a certificate of
probable cause is to discourage and weed out frivolous or vexations appeals
challenging convictions following guilty and nolo contendere pleas.
[Citations.]” (Panizzon, at p. 75.)
An exception to this rule allows an appeal after a guilty plea or
admission of probation violation when the grounds for the appeal “arose after
the entry of the plea [or admission] and do not affect [its] validity.” (Rule
8.304(b)(4)(B).) “[E]xcept when sentence is imposed pursuant to a plea
agreement, the potential grounds for claims of error in sentencing are the
same whether the defendant has pleaded guilty or whether he or she has
pleaded not guilty and been found guilty after a trial.” (People v. Johnson
(2009) 47 Cal.4th 668, 678.) However, “[e]ven when a defendant purports to
challenge only the sentence imposed, a certificate of probable cause is
required if the challenge goes to an aspect of the sentence to which the
defendant agreed as an integral part of a plea agreement. [Citation.]” (Ibid.)
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“In determining whether section 1237.5 applies to a challenge of a
sentence imposed after a plea of guilty or 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.’
[Citation.] Hence, the critical inquiry is whether a challenge to the sentence
is in substance a challenge to the validity of the plea, thus rendering the
appeal subject to the requirements of section 1237.5 [Citation.]” (Panizzon,
supra, 13 Cal.4th at p. 76; see, e.g., id. at pp. 73–74 [certificate of probable
cause was required for claim that sentence to which defendant had agreed as
part of plea bargain violated constitutional prohibitions against cruel and
unusual punishment]; compare People v. Buttram (2003) 30 Cal.4th 773, 785
[where parties to plea agreement agree only to a maximum sentence, no
certificate of probable cause is required because parties thus “leave
unresolved between themselves the appropriate sentence within the
maximum”].)
In his notice of appeal, appellant marked the box stating that the
appeal was “based on the sentence or other matters occurring after the plea
that do not affect the validity of the plea.” However, as the exchange between
the court, defense counsel, and appellant at the August 16, 2019 probation
revocation hearing made clear, a 10-year criminal protective order that
included appellant’s wife and his two minor children was a condition to which
appellant agreed when he admitted his probation violation in exchange for
certain favorable terms. That the court permitted defense counsel to again
argue against inclusion of the children in the criminal protective order at the
subsequent sentencing hearing does not change the fact that this provision
was an integral part of the plea agreement between the parties.
Consequently, appellant’s challenge to the terms of the criminal protective
9
order is a challenge to the validity of the plea, and he was required to obtain
a certificate of probable cause before appealing from the court’s imposition of
the criminal protective order. (See § 1237.5; rule 8.304(b)(1); see also People
v. Johnson, supra, 47 Cal.4th at pp. 668, 678; Panizzon, supra, 13 Cal.4th at
p. 76; cf. People v. Shelton (2006) 37 Cal.4th 759, 763, 769 [where plea
agreement included a maximum possible (“lid”) sentence, but permitted
defendant to argue at sentencing that court should exercise its discretion in
favor of a shorter term, because “the defendant did not reserve, either
expressly or impliedly, a right to challenge the trial court’s authority to
impose the lid sentence[, his] contention that the lid sentence violated the
multiple punishment prohibition of Penal Code section 654 was in substance
a challenge to the plea’s validity and thus required a certificate of probable
cause, which defendant failed to secure”]; People v. Young (2000) 77
Cal.App.4th 827, 830 [where defendant had pleaded no contest to all charges
and admitted “strike” allegations in exchange for the promise of a maximum
sentence of 25 years to life and an opportunity to ask trial court to strike one
or more of his prior convictions, his failure to obtain a certificate of probable
cause precluded him from challenging on appeal constitutionality of
maximum sentence to which he agreed as part of plea bargain].)
In sum, appellant’s challenge on appeal to the court’s authority include
his children in the criminal protective order is “in substance a challenge to
the validity of the negotiated plea,” for which a certificate of probable cause
was required. (People v. Shelton, supra, 37 Cal.4th at p. 771.)5 Given his
5
We also find unpersuasive appellant’s argument that, regardless of
“the chronological separation of the post-plea adversary hearing from the
entry of plea, the nature of appellant’s argument at the adversary hearing
shows that appellant’s challenge was not to the validity of his plea but to the
trial court’s jurisdictional authority to add appellant’s minor children to the
protective order.” As our Supreme Court has explained, however: “The rule
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failure to obtain a certificate of probable cause, appellant’s appeal must be
dismissed. (See § 1237.5; rule 830.4(b)(1).)
DISPOSITION
The appeal is dismissed.
that defendants may challenge an unauthorized sentence on appeal even if
they failed to object below is itself subject to an exception: Where the
defendants have pleaded guilty in return for a specified sentence, appellate
courts will not find error even though the trial court acted in excess of
jurisdiction in reaching that figure, so long as the trial court did not lack
fundamental jurisdiction.” (People v. Hester (2000) 22 Cal.4th 290, 295,
citing, inter alia, People v. Couch (1996) 48 Cal.App.4th 1053, 1056–1057;
People v. Nguyen (1993) 13 Cal.App.4th 114, 122–124.) Here, as in Hester,
appellant’s contention is that the trial court acted in excess of its jurisdiction
when it included the children in the protective order, not that it lacked
fundamental jurisdiction. (See Hester, at p. 295.)
This case is also distinguishable from two cases cited by appellant,
People v. Corban (2006) 138 Cal.App.4th 1111 and People v. Loera (1984) 159
Cal.App.3d 992. In Corban, “as in Loera, defendant raise[d] a purely legal
argument—that a particular enhancement could not be used in her case;
although the People suggest otherwise, she is not disputing the
enhancements in question fit the facts of her offense. . . . In these
circumstances, the challenge is in substance more to the propriety or legality
of the sentence than the plea, and no certificate of probable cause was
required.” (Corban, at p. 1117; but see, e.g., People v. Zuniga (2014) 225
Cal.App.4th 1178, 1186 [disagreeing with Loera and Corban, and concluding
that “the better course is to follow [appellate court cases] requir[ing]
compliance with section 1237.5 in cases that are, in substance, challenges to
the validity of a guilty plea”].) Here, unlike in Loera and Corban, appellant’s
challenge is not purely legal. Rather, he claims that the particular facts of
his case do not support the breadth of the criminal protective order that was
issued.
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_________________________
Kline, P.J.
We concur:
_________________________
Stewart, J.
_________________________
Miller, J.
People v. Saleh (A158509)
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