Filed 3/25/14 P. v. Boyer CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDRE PIERRE BOYER,

Defendant and Appellant.

 B245556

 (Los Angeles County

 Super. Ct. No. PA070872)

APPEAL from a judgment of the Superior Court for Los Angeles County, 

Cynthia L. Ulfig, Judge. Appeal dismissed.

John L. Staley, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. 

Matthews and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and 

Respondent. 
2

Defendant Andre Pierre Boyer filed a notice of appeal from a judgment 

entered following a plea agreement. The notice of appeal indicated that the appeal 

is based upon both the sentence or other matters occurring after the plea that do not 

affect the validity of the plea, as well as matters for which a certificate of probable 

cause is required. Concurrently with the notice of appeal, defendant filed with the 

trial court a request for certificate of probable cause. The trial court denied his 

request. 

In his appellant’s opening brief, defendant contends the trial court obtained 

an inadequate Faretta1 waiver because he was not advised of the potential penalties 

for the crimes with which he was charged; defendant also challenges the validity of 

the Supreme Court’s decision in Faretta. The Attorney General addresses the 

merits of these issues in the respondent’s brief, but also argues that we should 

decline to address the issues defendant raises because he failed to obtain a 

certificate of probable cause. The Attorney General is correct.

Penal Code section 1237.52states that “[n]o appeal shall be taken by the 

defendant from a judgment of conviction upon a plea of guilty or 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 [and] [¶] (b) The trial court has executed and filed a 

certificate of probable cause for such appeal with the clerk of the court.” The 

California Supreme Court has recognized only two exceptions to the certificate of 

probable cause requirement: “First, a defendant may appeal from a ruling 

involving a search and seizure issue without obtaining a certificate, because an 

 

1

Faretta v. California (1975) 422 U.S. 806.

2

Further statutory references are to the Penal Code.
3

appeal from such a ruling explicitly is authorized by section 1538.5 

‘notwithstanding the fact that the judgment of conviction is predicated upon a plea 

of guilty.’ [Citations.] Second, a defendant is ‘not required to comply with the 

provisions of section 1237.5 where . . . he is not attempting to challenge the 

validity of his plea of guilty but is asserting only that errors occurred in the 

subsequent adversary hearings conducted by the trial court for the purpose of 

determining the degree of the crime and the penalty to be imposed.’ [Citation.]” 

(People v. Johnson (2009) 47 Cal.4th 668, 677.)

Neither of those exceptions apply in the present case. Nevertheless, 

defendant argues in his reply brief that “[t]he language used by the [California 

Supreme] Court [in People v. Marlow (2004) 34 Cal.4th 131, 146] suggests that 

issues pertaining to counsel can be raised on appeal despite the absence of a 

certificate of probable cause.” He is incorrect. 

In People v. Marlow, the defendant pleaded guilty to all charges, including 

murder, and admitted the special circumstances allegations. In his appeal from the 

judgment sentencing him to death, he contended that the trial court erred in 

denying his Faretta motion. The Attorney General contended this contention was 

forfeited by defendant’s guilty plea. The Supreme Court stated: “Although not 

relying on the absence of a certificate of probable cause [citations], respondent 

argues the claim of erroneous denial of a Faretta motion is not one going to the 

‘legality of the proceedings’ and thus is not cognizable on appeal. [Citations.] We 

disagree. Just as a claim of denial of the right to counsel is cognizable on appeal 

after a guilty plea [citation], so too is a claim of Faretta error [citation].” (People 

v. Marlow, supra, 34 Cal.4th at pp. 146-147.) 

The Supreme Court’s language does nothing to “suggest” that a certificate of 

probable cause generally is not required for claims of Faretta error. The Court’s 

statement that the Attorney General did not rely on the absence of the certificate 
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was simply an observation, a part of its explanation of the Attorney General’s 

contention. The Court had no occasion to address the effect of the absence of a 

certificate of probable cause in People v. Marlow because the requirement of a 

certificate of probable cause does not apply to automatic appeals in capital cases. 

(See People v. Massie (1998) 19 Cal.4th 550, 568-569.) In this case, a noncapital 

case, the requirement strictly applies, and is a “‘condition precedent’ to the taking 

of an appeal within its scope.” (People v. Mendez (1999) 19 Cal.4th 1084, 1098.) 

Therefore, because defendant failed to obtain a certificate of probable cause, we 

must dismiss this appeal.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

MANELLA, J. EDMON, J.*

*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant

 to article VI, section 6 of the California Constitution.