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Filed 12/12/13 P. v. Mashburn CA1/5 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

BRIAN PRESTON MASHBURN, 

 Defendant and Appellant. 

 A138252 

 (Solano County Super. Ct. 

 No. FCR294075) 

 Defendant Brian Preston Mashburn pled no contest to felony possession of 

methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and the trial court placed him 

on formal probation for three years. He filed a notice of appeal purporting to challenge 

the denial of his Penal Code section 1538.51 motion to suppress evidence. Because 

appellant waived his right to appeal as part of his plea bargain and because he did not 

obtain a certificate of probable cause, this appeal must be dismissed. 

BACKGROUND 

 In December 2012, appellant was charged by information with possession of 

methamphetamine (Health & Saf. Code, § 11377, subd. (a); count one) and possession of 

a device for smoking a controlled substance (id., § 11364.1, subd. (a); count two). 

 

1 All further undesignated section references are to the Penal Code. 
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 In January 2013, appellant filed a motion to suppress evidence (§ 1538.5), which 

the trial court denied in March. Thereafter, appellant pled no contest to count one. A 

plea form reflects appellant’s agreement to plead no contest to count one with a 

maximum term of three years in jail. Numbered paragraph 6 of the form is initialed 

“BM” and reads, “Even though I will be convicted in this case as a result of my plea, I 

have the right to appeal the judgment and rulings of the court. [¶] I give up my right of 

appeal.” (Boldface in original.) Numbered paragraph 13, also initialed “BM,” reads, “I 

declare that my attorney has read and explained this document to me, and I hereby freely 

and voluntarily, having full knowledge and understanding of the rights that I am giving 

up and the possible consequences which may result from my plea, do hereby request the 

Court to accept my new and different plea(s).” The plea form was also signed by defense 

counsel, who averred she read and explained the document to appellant and was satisfied 

he understood the consequences of the plea and made his decision to plead “only after a 

full discussion with [her] of the facts and the law of this case.” 

 The trial court accepted appellant’s plea and found that appellant was fully 

informed of his rights and that his waivers were knowing, intelligent, and voluntary. The 

court dismissed count two and a separate criminal case on the prosecutor’s motion, and 

placed appellant on three years’ formal probation with imposition of sentence suspended, 

a time-served jail term, and Proposition 36 treatment. 

 Appellant filed a notice of appeal based on the denial of his motion to suppress. 

The record contains no certificate of probable cause. 

DISCUSSION 

 Appellant contends the trial court erred in denying his motion to suppress. He also 

contends he did not knowingly and intelligently waive his right to appeal and any such 

waiver did not encompass his challenge to the denial of the motion to suppress. 

Respondent contends the present appeal must be dismissed because appellant challenges 

the enforceability of the waiver of appeal that was part of his plea bargain, and appellant 

failed to obtain a certificate of probable cause. We agree the appeal must be dismissed. 
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I. The Requirement of a Certificate of Probable Cause

 Under section 1237.5, a defendant generally may not appeal from a judgment of 

conviction following a guilty or no contest plea, unless he files with the trial court a 

statement “showing reasonable, constitutional, jurisdictional, or other grounds going to 

the legality of the proceedings” (§ 1237.5, subd. (a)), and the trial court executes and files 

“a certificate of probable cause for such appeal with the clerk of the court” (§ 1237.5, 

subd. (b)). (See also People v. Maultsby (2012) 53 Cal.4th 296, 299 (Maultsby); People 

v. Cole (2001) 88 Cal.App.4th 850, 859-860 (Cole); Cal. Rules of Court, rule 8.304(b).)2 

“The purpose of section 1237.5 is practical and salutary: ‘to discourage and weed out 

frivolous or vexatious appeals challenging convictions following guilty and nolo 

contendere pleas,’ and to do so ‘ “before time and money is spent preparing the record 

and the briefs for consideration by the reviewing court.” ’ [Citation.] The requirements 

of section 1237.5 . . . must be strictly applied. [Citation.] The Supreme Court has 

disapproved the practice of applying the rule loosely in order to reach issues whose 

consideration would otherwise be precluded. [Citation.]” (Cole, at p. 860, fn. omitted; 

see also Maultsby, at pp. 298-299.) 

 The law recognizes an exception to the section 1237.5 certificate requirement. 

This exception, stated in rule 8.304(b)(4), permits an appeal without a probable cause 

certificate if the appeal is based on “[t]he denial of a motion to suppress evidence under 

. . . section 1538.5” or “[g]rounds that arose after entry of the plea and do not affect the 

plea’s validity.” (See also Maultsby, supra, 53 Cal.4th at p. 299; Cole, supra, 88 

Cal.App.4th at p. 860 [citing to former rule 31(d)].) 

II. Application of the Certificate Requirement in the Present Case 

 Although the notice of appeal in the present case states it is based on denial of 

appellant’s section 1538.5 motion to suppress, “ ‘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 

 

2 All rules references are to the California Rules of Court. 
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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.]’ [Citation.]” (People v. Buttram (2003) 30 Cal.4th 773, 781-782 

(Buttram); see also People v. Panizzon (1996) 13 Cal.4th 68, 76 (Panizzon ).) 

 In Panizzon, supra, 13 Cal.4th 68, the defendant agreed to a plea bargain that 

called for him to receive a specified sentence and the prosecution agreed to dismiss 

several charges. (Id. at p. 73.) After the defendant was sentenced to the negotiated term, 

he appealed without first obtaining a certificate of probable cause, contending the 

sentence violated the federal and state prohibitions against cruel and unusual punishment. 

(Id. at p. 74.) The Supreme Court concluded that, since the defendant was “in fact 

challenging the very sentence to which he agreed as part of the plea,” the challenge 

“attacks an integral part of the plea [and] is, in substance, a challenge to the validity of 

the plea, which requires compliance with the probable cause certificate requirements of 

section 1237.5.” (Panizzon, at p. 73; see also id. at p. 78 [“by contesting the 

constitutionality of the very sentence he negotiated as part of the plea bargain, [the] 

defendant is, in substance, attacking the validity of the plea”].) The Supreme Court 

dismissed the appeal because the defendant did not obtain a certificate of probable cause. 

(Id. at pp. 89-90.) 

 In contrast, in Buttram, supra, 30 Cal.4th 773, the Supreme Court considered a 

situation where the defendant pled guilty to felony drug charges in return for an agreed 

maximum sentence. (Id. at p. 776.) The defendant then appealed the trial court’s denial 

of diversion and imposition of the maximum term. (Ibid.) The Supreme Court held the 

defendant was not required to obtain a certificate of probable cause because, “absent 

contrary provisions in the plea agreement itself, a certificate of probable cause is not 

required to challenge the exercise of individualized sentencing discretion within an 

agreed maximum sentence. Such an agreement, by its nature, contemplates that the court 

will choose from among a range of permissible sentences within the maximum, and that 
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abuses of this discretionary sentencing authority will be reviewable on appeal, as they 

would otherwise be.” (Id. at pp. 790-791.) 

Buttram is helpful in the present case because the Supreme Court expressly noted 

that the defendant did not, in pleading guilty, waive his right to appeal as to sentencing. 

(Buttram, supra, 30 Cal.4th at pp. 777-778, 787.) Justice Baxter, who authored Buttram, 

wrote in a separate concurring opinion: “A prime reason why we conclude here that 

defendant Buttram may take his appeal without a certificate, and that the Court of Appeal 

must address it on the merits, is that Buttram’s plea is silent on the appealability of the 

trial court’s sentencing choice. [¶] Yet it is well settled that a plea bargain may include a 

waiver of the right to appeal.” (Id. at p. 791.) 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. 

[Citation.] A certificate of probable cause would therefore be necessary to make the 

appeal ‘operative,’ and in the absence of a certificate, the superior court clerk would not 

be put to the time and expense of preparing a record on appeal. [Citation.] If a record 

were nonetheless prepared and transmitted, the Court of Appeal could still dismiss the 

appeal for lack of a certificate, without having to address its merits.” (Id. at p. 793.) 

Finally, in language directly applicable to the present case, Justice Baxter pointed out that 

“An attempt to appeal the enforceability of the appellate waiver itself (for example, on 

grounds that it was not knowing, voluntary, and intelligent, or had been induced by 

counsel’s ineffective assistance) would not succeed in circumventing the certificate

requirement. This is because, however important and meritorious such a challenge might 

be, it too would manifestly constitute an attack on the plea’s validity, thus requiring a 

certificate in any event.” (Ibid.) 

 Appellant contends Panizzon is inapposite because that case did not involve an 

appeal from denial of a motion to suppress, which is authorized under section 1538.5, 

subdivision (m). However, under the reasoning of Panizzon and Justice Baxter’s 

concurrence in Buttram, supra, 30 Cal.4th 773, the substance of the appeal in the present 

case is a challenge to the validity of the waiver of the right to appeal in the plea bargain 
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and, thus, the plea itself. (Id. at p. 793.) Appellant’s challenge to the denial of his motion 

to suppress may only be heard if the waiver of the right to appeal is unenforceable, which 

is an issue regarding which appellant was obligated to obtain a certificate of probable 

cause. (Ibid.) 

DISPOSITION 

 The appeal is dismissed. 

 

 SIMONS, J. 

We concur. 

 

JONES, P.J. 

 

BRUINIERS, J.