Filed 3/24/21 P. v. Totten 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Shasta)
----
THE PEOPLE, C091285
Plaintiff and Respondent, (Super. Ct. No. 19F3867)
v.
NATHAN AARON TOTTEN,
Defendant and Appellant.
Originally charged with elder abuse and stalking of an elderly woman for whom
he had done some yard work, defendant Nathan Aaron Totten pleaded no contest to
making a criminal threat against the woman’s son and admitted a strike prior in exchange
for a stipulated six-year prison sentence; he also agreed to a Harvey1 waiver for the
dismissed counts involving the elderly woman and imposition of no contact orders.
1 People v. Harvey (1979) 25 Cal.3d 754.
1
On appeal, defendant contends the no contact order is invalid because the trial
court lacked jurisdiction to impose it since defendant did not plead guilty to any charges
involving the elderly woman. Because the protective order was a material term of the
plea agreement, defendant cannot challenge the term without a certificate of probable
cause, which he did not obtain. We therefore dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2019, defendant was charged in Shasta County case No. 19F03867 with
stalking P.G. (Pen. Code, § 646.9, subd. (a), count 1),2 criminal threats against P.G.
(§ 422, count 2), and elder abuse of P.G. (§ 368, subd. (c), count 3). It was further
alleged that defendant had a strike prior (§ 1170.12); three on-bail enhancements were
also alleged (§ 12022.1). Evidence at the preliminary hearing showed the following.3
In June 2019, P.G., an elderly woman in her eighties, reported to law enforcement
that defendant was harassing her and vandalizing her property. P.G. met defendant
through her son, R.L., who arranged to have defendant do some work at his mother’s
house following a severe storm. After completing the work, defendant started squatting
beneath P.G.’s carport. He left his belongings there during the day and slept in the
carport at night. P.G. confronted him six or seven times telling him to leave, but he
continued to sleep there and leave a backpack or other personal property. Although she
warned him that she would dispose of his belongings if he did not leave, defendant
continued to squat at P.G.’s residence. P.G. eventually threw away defendant’s
backpack.
2 Further undesignated statutory references are to the Penal Code.
3 The facts are taken from the preliminary hearing transcript, as defendant resolved his
case by plea before trial.
2
After she got rid of his property, defendant began to terrorize P.G. He snuck onto
her property at night and vandalized her car and home several times. He broke car and
house windows, stole two of her car tires, and then later punctured or deflated all four of
her tires; he also wedged yard tools and broom sticks against her doorways to block her
exit, and left a dead woodpecker in her mailbox.
When R.L. confronted defendant, defendant stated that R.L.’s mother should not
keep people’s stuff. Defendant admitted to R.L. that he had stolen two of R.L.’s mother’s
car tires. In another conversation, defendant threatened R.L. that he was going to burn
down P.G.’s house if his personal property was not returned. R.L. related the threat to his
mother, and she took it as a credible threat that scared her. Due to her fear of defendant,
she was unable to sleep at night.
In September 2019, defendant agreed to a plea bargain that resolved several
pending matters. Under the terms of the written plea agreement, defendant agreed to
plead no contest in case No. 19F38687 to an amended count 2 that alleged R.L. as the
victim rather than P.G., admitted a strike prior, and admitted he violated parole in Shasta
County Superior Court case No. 18F3600. In exchange for his plea, the balance of the
charges in case No. 19F38687 were dismissed with a Harvey waiver, parole was revoked
and terminated in case No. 18F3600, and several other matters were either dismissed
outright or were dismissed with a Harvey waiver for restitution. The parties stipulated
that the preliminary hearing transcript could serve as the factual basis for the plea.
During the change of plea hearing on September 6, 2019, the trial court explained
the consequences of the plea to defendant, which included no contact orders. Defendant
responded that he understood the consequences of the proposed plea bargain and made no
objection.
3
After the change of plea hearing but before sentencing,4 the court entered a 10-
year criminal protective order protecting P.G. from any contact with defendant. The
court signed Judicial Council Form No. CR-160, entitled “Criminal Protective Order-
Domestic Violence.” The court checked the box indicating that it issued the protective
order pursuant to section 646.9, subdivision (k).
On November 13, 2019, the court sentenced defendant to the stipulated six-year
term under the plea agreement. The court also ordered that defendant have no contact
with P.G. and R.L. The court’s signed written judgment recites that “defendant shall
have no contact with P.G.” for a period of 10 years pursuant to section 646.9, subdivision
(k), and that he had been served with the criminal protective order. Defendant timely
appealed without a certificate of probable cause.
DISCUSSION
Defendant contends the court erred when it entered a 10-year criminal protective
order under section 646.9, subdivision (k) prohibiting him from contacting P.G. He
argues the court lacked jurisdiction to enter the no contact order because he was not
convicted of stalking P.G. under the terms of the plea agreement (as that count was
dismissed with a Harvey waiver), and section 646.9 authorizes a no contact order only
where a defendant has been convicted of stalking. (§ 646.9, subd. (k).) In his view, the
issue is cognizable on appeal despite his failure to object below because the no contact
order constitutes an unauthorized sentence that may be corrected at any time. (People v.
Robertson (2012) 208 Cal.App.4th 965, 995.)
4 Before sentencing, defendant also made a motion pursuant to People v. Marsden
(1970) 2 Cal.3d 118 to relieve his counsel, arguing he was innocent of the charges, that
her representation had been inadequate, and that he wanted to withdraw his plea. The
court denied the motion.
4
The People, on the other hand, argue defendant cannot appeal the no contact order
without a certificate of probable cause because it constitutes a material term of the plea
agreement to which defendant did not object. The People have the better argument.
Ordinarily, a defendant may appeal “from a final judgment of conviction.”
(§ 1237, subd. (a).) If the judgment resulted from a no contest plea, however, “section
1237.5, subdivisions (a) and (b), provide that no appeal may be taken unless ‘[t]he
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 the court ‘has executed and filed a certificate of probable
cause for such appeal with the clerk of the court.’ ” (People v. Stamps (2020) 9 Cal.5th
685, 694.) Under section 1237.5, a defendant may appeal without a certificate of
probable cause if he or she does so solely on noncertificate grounds, which go to postplea
matters not challenging the plea’s validity or matters involving a search or seizure whose
lawfulness was contested under section 1538.5. (People v. Mendez (1999) 19 Cal.4th
1084, 1096; People v. Panizzon (1996) 13 Cal.4th 68, 74; see Cal. Rules of Court, rule
8.304(b)(4).)
It is well settled that “ ‘issues going to the validity of a plea require’ a certificate
of probable cause.” (People v. Stamps, supra, 9 Cal.5th at p. 694.) But even where a
defendant purports to challenge only the sentence imposed rather than the plea itself, “ ‘a
certificate . . . 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.’ ” (Ibid.; People v. Buttram
(2003) 30 Cal.4th 773, 781 [to determine whether section 1237.5 applies to a challenge of
a sentence imposed after a no contest plea, courts look to the substance of the appeal, not
the timing or manner in which the challenge is made].) The critical inquiry is whether a
defendant’s challenge to his or her sentence is in substance a challenge to the validity of
the plea, thus rendering the appeal subject to section 1237.5’s certificate requirement.
(People v. Panizzon, supra, 13 Cal.4th at p. 76.)
5
Where the parties agree to a specified sentence, any challenge to that sentence
attacks a term of the agreement, and, thus, the validity of the plea itself. (People v.
Buttram, supra, 30 Cal.4th at p. 789.) Under those circumstances, a certificate of
probable cause is required. (Ibid.)
In this case, defendant does not dispute the People’s contention that the no contact
order constituted a material term of his plea agreement.5 The record, moreover, supports
such a finding. During the change of plea hearing, the court specifically explained to
defendant that a consequence of his plea was a no contact order. When the court asked
defendant if he understood the consequences, implicitly including the no contact orders,
defendant responded that he did. At no time before pleading no contest did defendant
object to the no contact order or argue that such an order was not contemplated under the
parties’ agreement. Similarly, at sentencing, defendant did not object or otherwise claim
surprise when the trial court ordered him to have no contact with the victims.
Given the above, we conclude the no contact order was a material term of the
parties’ plea bargain. Thus, defendant’s claim is, in substance, an attack on the validity
of his plea, which is not reviewable on appeal because defendant failed to seek and obtain
a certificate of probable cause. Having concluded that the absence of a certificate is fatal
to defendant’s challenge, we need not reach the remaining issues raised by the parties and
shall dismiss the appeal. (People v. Panizzon, supra, 13 Cal.4th at pp. 89-90.)
5 Defendant informed the court that he did not intend to file a reply brief.
6
DISPOSITION
Defendant’s appeal is dismissed.
/s/
RAYE, P. J.
We concur:
/s/
RENNER, J.
/s/
KRAUSE, J.
7