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Filed 12/4/23 P. v. Valdivia CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

MARC J. VALDIVIA,

Defendant and Appellant.

 A166930

 (Lake County

 Super. Ct. No. CR-964425)

Defendant Marc Valdivia appeals from an order granting probation 

after he pleaded no contest to one count of felony vandalism. The trial court 

imposed a four-year probation term, to which Valdivia specifically agreed 

under the plea agreement. Nonetheless, he now challenges that term,

contending that the maximum probation term for his offense is two years

under Penal Code1 section 1203.1, subdivision (a), and the sentence is 

therefore unauthorized. We agree with the Attorney General that the appeal 

must be dismissed because Valdivia failed to obtain a certificate of probable 

cause.

1 All further statutory references are to the Penal Code.
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I.

FACTUAL AND PROCEDURAL

BACKGROUND

The incident giving rise to the charges against Valdivia occurred on 

August 9, 2022.2 Briefly, Valdivia broke the windshield of his wife’s van and 

rammed the van with his own vehicle, causing approximately $10,000 in 

damage. Later that day, Valdivia threatened to stab his 12-year-old son with 

a knife. He then told his wife “that when he returned, he would hurt them 

all,” apparently also referring to his 14-year-old son.

Valdivia was charged with two counts of criminal threats and one count 

of vandalism, all felonies, and a misdemeanor count of child endangerment.3

In December 2022, under a plea agreement, he pleaded no contest to the 

vandalism count. The remaining charges were dismissed, with a Harvey

waiver as to the child-endangerment count.4 Valdivia specifically agreed to 

be placed on probation for four years. 

At the sentencing hearing later that month, the prosecutor raised the 

issue that even though the parties had agreed to a probation term of four 

years, the probation report recommended a two-year term. Valdivia’s trial 

counsel responded, “While obviously the defense would prefer two years, we 

do acknowledge that four was what was agreed upon.” The trial court then 

suspended imposition of the sentence and placed Valdivia on formal 

2 The facts in this paragraph are taken from the preliminary hearing 

transcript, which provided the factual basis for Valdivia’s plea.

3 The charges were brought under sections 422, subdivision (a) 

(criminal threats), 594, subdivision (a) (vandalism), and 273a, subdivision (b) 

(child endangerment). 

4 A Harvey waiver permits a trial court to consider facts underlying a 

dismissed count in imposing a sentence under a plea bargain. (People v. 

Munoz (2007) 155 Cal.App.4th 160, 166–167, citing People v. Harvey (1979) 

25 Cal.3d 754.)
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probation for four years. Probation was conditioned on Valdivia’s serving 265 

days in jail, a term he had already served with conduct credits. 

Valdivia filed a notice of appeal in which he checked boxes indicating 

that the appeal challenged the validity of his plea and was based on 

ineffective assistance of counsel. Accordingly, he requested a certificate of 

probable cause, which the trial court denied. 

II.

DISCUSSION

Valdivia contends that the four-year probation term is unauthorized

because the maximum probation term for felony vandalism is two years. We 

do not decide the merits of this claim because we agree with the Attorney 

General that the appeal must be dismissed. 

Generally, a defendant cannot appeal after entering a no-contest plea 

unless “[t]he trial court has executed and filed a certificate of probable cause 

for such appeal with the clerk of the court.” (§ 1237.5, subd. (b).) If the trial 

court “denies a certificate of probable cause, the appeal will be limited to 

issues that do not require a certificate of probable cause.” (Cal. Rules of 

Court, rule 8.304(b)(3).) As relevant here, a certificate of probable cause is 

not required if the appeal is based on “[t]he sentence or other matters 

occurring after the plea or admission that do not affect the validity of the plea 

or admission.” (Id., rule 8.304(b)(2)(B).)

“ ‘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.’ ” (People v. Buttram
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(2003) 30 Cal.4th 773, 781–782.) Where, as here, a defendant agrees to a 

specific term—as opposed to agreeing to a maximum sentence that the trial 

court will not exceed when exercising its sentencing discretion—a challenge 

to the sentence as part of a plea agreement “attacks an integral part of the 

plea, [and] is, in substance, a challenge to the validity of the plea” requiring a 

certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68, 73; 

Buttram, at pp. 782–785.)

Valdivia does not contest that the four-year probation term was “an 

integral part” of the plea agreement under Panizzon, supra, 13 Cal.4th at 

p. 73. Instead, he claims that “an illegal sentence requires no certificate of 

probable cause.” He provides no authority for this position, which we 

conclude is incorrect.

“ ‘ “When a guilty [or nolo contendere] plea is entered in exchange for 

specified benefits such as the dismissal of other counts or an agreed 

maximum punishment, both parties, including the state, must abide by the 

terms of the agreement.” ’ ” (People v. Cuevas (2008) 44 Cal.4th 374, 383.) 

This requirement is not affected by a defendant’s claim that the negotiated 

term is unauthorized by law. Rather, because a “ ‘[d]efendant’s attack on the 

legality of [the] maximum sentence is an effort to unilaterally improve, and 

thus alter, the terms of that which was agreed,’ ” such a claim requires a 

certificate of probable cause. (Ibid.; People v. Shelton (2006) 37 Cal.4th 759, 

769.)

Indeed, even if we were to conclude that no certificate of probable cause 

was required, Valdivia would be estopped from challenging the legality of the 

four-year term. “The rule 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 [or no contest] in 
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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. The rationale 

behind this policy is that defendants who have received the benefit of their 

bargain should not be allowed to trifle with the courts by attempting to better 

the bargain through the appellate process.” (People v. Hester (2000) 

22 Cal.4th 290, 295.)

Finally, it is hardly clear that Valdivia would end up being better off 

even if we considered the appeal on the merits and agreed with him that the 

four-year term is illegal, since we would not simply modify that term

downward as he requests. This case does not involve an intervening change 

in the law that rendered the sentence unauthorized. Assembly Bill No. 1950 

(2019–2020 Reg. Sess.), which amended section 1203.1 to limit the maximum 

probation term for most felony offenses to two years, took effect nearly two 

years before Valdivia was sentenced. (People v. Rodriguez (2022) 

79 Cal.App.5th 637, 640.) Instead, if Valdivia’s four-year probation term is

unauthorized, the plea agreement was illegal at the time it was entered, and 

the appropriate remedy would be a remand for the People to either accept a 

reduced probation term or withdraw from the plea agreement. (See People v. 

Prudholme (2023) 14 Cal.5th 961, 974.) Valdivia’s strong objection to such a 

remand is understandable given the favorable terms of the plea agreement, 

which allowed him to avoid further confinement even though he was charged 

with three felonies. 

In short, Valdivia’s claim that the four-year probation term is 

unauthorized is a clear challenge to the validity of the plea and requires a 

certificate of probable cause. Because Valdivia failed to obtain a certificate, 

his appeal cannot proceed. 
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III.

DISPOSITION

The appeal is dismissed.
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_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Getty, J.*

*Judge of the Superior Court of the County of Solano, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California Constitution.

People v. Valdivia A166930