P. v. Gilpin

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Filed 3/5/20 P. v. Gilpin CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Tehama)
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THE PEOPLE,
Plaintiff and Respondent,
v.
BILLY SHANE GILPIN,
Defendant and Appellant.
C087517
(Super. Ct. No. 18CR000448)
Defendant Billy Shane Gilpin was sentenced to five years in prison pursuant to a
plea agreement in which he pled guilty to possession of a controlled substance,
methamphetamine, and misdemeanor possession of controlled substance paraphernalia.
He contends Penal Code1 section 1001.36 applies retroactively, requiring conditional
reversal of his convictions and sentence and remand of the matter for the trial court to
1 All further section references are to the Penal Code unless otherwise specified.

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conduct a mental health diversion eligibility hearing. Alternatively, defendant argues the
concurrent sentence on the paraphernalia possession count should be stayed pursuant to
section 654.
The People argue defendant’s mental health diversion claim should be dismissed
for failure to obtain a certificate of probable cause and, in any event, the claim fails on
the merits because section 1001.36 does not apply retroactively. As to the second
contention, the People concede the trial court should have stayed punishment on the
paraphernalia possession count under section 654.
We disagree with the People that a certificate of probable cause was required to
raise the section 1001.36 issue. We do not reach the question of retroactivity, however,
because we conclude defendant has failed to show section 1001.36 may apply to him.
Finally, we accept the People’s concession and agree the concurrent sentence on the
paraphernalia possession count violates section 654. We accordingly stay the sentence
on that count. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On February 26, 2018, a parole officer conducted an unannounced visit at
defendant’s home. Defendant told the officer he would test positive for
methamphetamine. The officer searched defendant’s home and found a hypodermic
syringe, a spoon with a piece of cotton stuck to it, and a baggie with one-tenth of a gram
of methamphetamine in a bedroom closet.
Defendant was charged with possession of a controlled substance,
methamphetamine, and misdemeanor possession of controlled substance paraphernalia.
As to the controlled substance count, the information alleged defendant had a prior strike
and had served a prior prison term.
On April 23, 2018, defendant entered an open plea of guilty on both counts and
admitted the special allegations in return for a seven-year “lid” and the right to seek
Romero relief. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The plea

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agreement further provided defendant would be referred to the behavioral health court.
The trial court denied defendant’s Romero request and application for probation. The
behavioral health court denied defendant’s referral, noting he “has severe mental health
and substance use issues” and suffers from a mental disorder identified in the fifth edition
of the Diagnostic and Statistical Manual of Mental Disorders. On June 4, 2018, the court
sentenced defendant to five years in prison.
Defendant filed a timely notice of appeal. He did not obtain a certificate of
probable cause.
DISCUSSION
I
Mental Health Diversion
A
No Certificate Of Probable Cause Required
The People contend defendant’s section 1001.36 argument should be dismissed for
failure to obtain a certificate of probable cause. We disagree.
Section 1237.5 provides in relevant part 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.
[¶] (b) The trial court has executed and filed a certificate of probable cause for such
appeal with the clerk of the court.”
“ ‘The purpose for requiring a certificate of probable cause is to discourage and
weed out frivolous or vexatious appeals challenging convictions following guilty and
nolo contendere pleas. [Citations.] The objective is to promote judicial economy “by
screening out wholly frivolous guilty [and nolo contendere] plea appeals before time and

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money is spent preparing the record and the briefs for consideration by the reviewing
court.” [Citations.]
“ ‘It has long been established that issues going to the validity of a plea require
compliance with section 1237.5. [Citation.] Thus, for example, a certificate must be
obtained when a defendant claims that a plea was induced by misrepresentations of a
fundamental nature [citation] or that the plea was entered at a time when the defendant
was mentally incompetent [citation]. Similarly, a certificate is required when a defendant
claims that warnings regarding the effect of a guilty plea on the right to appeal were
inadequate. [Citation.]’ [Citation.]
“ ‘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
(2003) 30 Cal.4th 773, 781-782.)
Our Supreme Court has explained that a plea in which the parties agree to a
maximum sentence does not require a certificate of probable cause unless the defendant
challenges the legal validity of the maximum sentence itself. (People v. Buttram, supra,
30 Cal.4th at pp. 790-791.) “When the parties negotiate a maximum sentence, they
obviously mean something different than if they had bargained for a specific or
recommended sentence. By agreeing only to a maximum sentence, the parties leave
unresolved between themselves the appropriate sentence within the maximum. That
issue is left to the normal sentencing discretion of the trial court, to be exercised in a
separate proceeding.” (Id. at p. 785.)
“[A] certificate of probable cause is not required to challenge the exercise of
individualized sentencing discretion within an agreed maximum sentence. Such an

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agreement, by its nature, contemplates that the court will choose from among a range of
permissible sentences within the maximum, and that abuses of this discretionary
sentencing authority will be reviewable on appeal, as they would otherwise be.
Accordingly, such appellate claims do not constitute an attack on the validity of the plea,
for which a certificate is necessary.” (People v. Buttram, supra, 30 Cal.4th at pp. 790-
791; see id. at p. 777 [“Unless it specifies otherwise, a plea agreement providing for a
maximum sentence inherently reserves the parties’ right to a sentencing proceeding in
which (1) . . . they may litigate the appropriate individualized sentence choice within the
constraints of the bargain and the court’s lawful discretion, and (2) appellate challenges
otherwise available against the court’s exercise of that discretion are retained”].)
Here, the parties agreed to a maximum sentence of seven years in the plea
agreement and the trial court exercised its discretion by imposing a lesser sentence of five
years. Defendant’s challenge to the trial court’s sentencing discretion relating to the
application of section 1001.36 does not require a certificate of probable cause.
B
Defendant Failed To Show Section 1001.36 May Apply To Him
Defendant contends we should conditionally reverse his convictions and sentence
and remand the matter for the trial court to conduct a mental health diversion eligibility
hearing under section 1001.36 because he suffers from “a qualifying diagnosed mental
disorder.” He contends the statute applies retroactively to him, relying on People v.
Frahs (2018) 27 Cal.App.5th 784, 791, review granted December 27, 2018, S252220.2
We do not reach the question of retroactivity because we conclude defendant has failed to
2 The questions before the California Supreme Court on review of Frahs are
whether section 1001.36 applies retroactively to all cases in which the judgment is not yet
final and whether the Court of Appeal erred by remanding for a determination under
section 1001.36.

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show section 1001.36 may apply to him such that affirming the judgment would result in
a miscarriage of justice.
“Perhaps the most fundamental rule of appellate law is that the judgment
challenged on appeal is presumed correct” (People v. Sanghera (2006) 139 Cal.App.4th
1567, 1573), and we shall not set aside a judgment unless we find “the error complained
of has resulted in a miscarriage of justice” (Cal. Const., art. VI, § 13). As this court
explained in Waller, “[p]rejudice is not presumed, and the burden is on the appealing
party to demonstrate that a miscarriage of justice has occurred.” (Waller v. TJD, Inc.
(1993) 12 Cal.App.4th 830, 833.) Here, the error complained of is that defendant was not
given the opportunity to seek a mental health diversion eligibility hearing under
section 1001.36.
Section 1001.36 was enacted after defendant’s sentencing (Stats. 2018, ch. 34,
§ 24, eff. June 27, 2018) and provides pretrial diversion may be granted if the trial court
finds all of the following criteria are met: (1) the defendant suffers from a recently
diagnosed mental disorder enumerated in the statute; (2) the disorder was a significant
factor in the commission of the charged offense, and that offense is not one of the
offenses enumerated in subdivision (b); (3) “[i]n the opinion of a qualified mental health
expert, the defendant’s symptoms of the mental disorder motivating the criminal behavior
would respond to mental health treatment”; (4) the defendant consents to diversion and
waives his right to a speedy trial; (5) the defendant agrees to comply with treatment as a
condition of diversion; and (6) the defendant will not pose an unreasonable risk of danger
to public safety, as defined in section 1170.18, if treated in the community. (§ 1001.36,
subd. (b)(1)-(2).) If the treatment under pretrial diversion is deemed successful, the
charges shall be dismissed and the defendant’s criminal record expunged. (§ 1001.36,
subds. (b)(1)(A)-(C), (c)(3), (e).)
The statute further provides: “At any stage of the proceedings, the court may
require the defendant to make a prima facie showing that the defendant will meet the

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minimum requirements of eligibility for diversion and that the defendant and the offense
are suitable for diversion. The hearing on the prima facie showing shall be informal and
may proceed on offers of proof, reliable hearsay, and argument of counsel. If a prima
facie showing is not made, the court may summarily deny the request for diversion or
grant any other relief as may be deemed appropriate.” (§ 1001.36, subd. (b)(3).)
We disagree with Frahs and Weaver that a defendant meets his or her burden of
demonstrating a miscarriage of justice occurred merely by arguing he or she has a
diagnosed mental health disorder within the meaning of section 1001.36,
subdivision (b)(1)(A), as defendant attempts to do here. (See People v. Frahs, supra, 27
Cal.App.5th 784; People v. Weaver (2019) 36 Cal.App.5th 1103, 1121-1122, review
granted Oct. 9, 2019, S257049.) Rather, we find it appropriate to require a defendant,
raising the issue for the first time on appeal, to show that he or she may fall within the
class of persons who may seek discretionary relief under the statute such that affirming
the judgment would result in a miscarriage of justice. Practically speaking, this means a
defendant must meet the requirements of section 1001.36, subdivision (b)(3) -- that is,
showing he or she “will meet the minimum requirements of eligibility for diversion and
that the defendant and the offense are suitable for diversion.”
While we require a defendant to make an argument on appeal that he or she may
be entitled to relief under the statute, we do not require a defendant to make a showing
that the trial court would grant mental health diversion. This is an important distinction.
Defendant, of course, did not have the benefit of developing the record and evidence at
trial to support a claim for diversion under a statute that was not then in existence.
Moreover, the eligibility determination is soundly vested in the trial court and we will not
make any factual determinations in the first instance on appeal as to whether a defendant
has sufficiently demonstrated any of the eligibility factors for mental health diversion or
speculate as to whether the trial court will find defendant eligible for mental health
diversion.

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What we require, however, is that defendant meets his burden on appeal to
demonstrate that affirmance of the judgment will result in a miscarriage of justice.
Defendant argues only that he has a qualifying mental health disorder under
section 1001.36, subdivision (b)(1)(A). This is insufficient. “An appellate court is not
required to examine undeveloped claims, nor to make arguments for parties.” (Paterno v.
State of California (1999) 74 Cal.App.4th 68, 106.) We will not make defendant’s
arguments for him.
II
The Sentence On The Drug Paraphernalia Possession
Count Must Be Stayed Under Section 654
Defendant contends his concurrent sentence on the drug paraphernalia possession
count was imposed in error because the sentence should have been stayed under section
654. The People concede the point. We accept the concession and agree.
Section 654, subdivision (a) provides in pertinent part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” As this court
explained in Louie: “The challenge in applying section 654 arises because, ‘[f]ew if any
crimes . . . are the result of a single physical act.’ [Citation.] Accordingly, courts have
long recognized that the proscription against multiple punishment may also apply when a
course of criminal conduct violates more than one statute. [Citation.] Where a
defendant’s crimes are the result of a course of criminal conduct, courts endeavor to
determine whether the course of conduct is divisible, i.e., whether it constitutes more than
one criminal act. [Citation.] A course of conduct will give rise to more than one criminal
act if the actions were incident to more than one objective. [Citation.] The point of
determining whether a defendant had more than one criminal objective is to discover
whether the defendant’s multiple actions should be considered one criminal act or more

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than one criminal act for the purpose of section 654.” (People v. Louie (2012) 203
Cal.App.4th 388, 396-397.)
As the People explain, the methamphetamine and syringe were found in the same
place -- defendant’s bedroom closet. Those items were found along with a spoon, a tool
commonly used to prepare methamphetamine for injection. There is no evidence in the
record suggesting defendant had a different or separate intent with regard to the
paraphernalia other than to use it to inject the methamphetamine. Thus, there is no
substantial evidence to support the trial court’s implied finding of a separate intent or
objective. (People v. Islas (2012) 210 Cal.App.4th 116, 129.) Section 654 applies to stay
the punishment for the drug paraphernalia possession count.
DISPOSITION
The punishment for the drug paraphernalia possession count is stayed pursuant to
section 654. In all other respects, the judgment is affirmed. The trial court shall prepare
an amended abstract of judgment and forward a certified copy to the Department of
Corrections and Rehabilitation.
/s/
Robie, Acting P. J.
We concur in the result:
/s/
Butz, J.
/s/
Murray, J.

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