NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, ACTING P. J.

Defendant Craig Buchanan pled no contest to multiple counts of assault by means likely to produce great bodily injury, criminal threats, extortion and kidnapping.1 On appeal from the resulting judgment, he contends he was denied due process and the right to counsel because sheriff's deputies opened a letter to him from his trial attorney which outlined counsel's trial strategy, and did not give the letter to defendant until after he entered his plea.2 We dismiss the appeal for lack of a certificate of probable cause.

FACTS3

The charged offenses arose out of a botched drug deal. Defendant drove victims Abel Acosta, Jr., and Sergio Mejia to a location where they intended to purchase some marijuana; the drug dealer and his companions arrived in another car; codefendant Madison Pazmore arrived in a third car with the money. After the drug dealer and his companions absconded with the money without turning over the drugs, defendant and Pazmore drove Acosta and Mejia to a motel. During the drive, various threats were made to Acosta and Mejia. At the motel, Acosta and Mejia were forced into a room at gunpoint. When they entered, codefendant Jahkeem Thomas was already there. Acosta and Mejia were threatened with serious bodily injury if defendants did not get their money back. After Acosta and Mejia complied with instructions to go into the bathroom and take off their clothes, defendant tied them up. Mejia was brought out of the bathroom, tied to a chair and beaten. Next, Acosta was brought out. Defendant forced the victims to call various family members and a ransom demand was made of those family members. Acosta and Mejia were freed when sheriff's deputies arrived.

PROCEDURAL BACKGROUND

On Tuesday, July 14, 2009, during jury voir dire, the prosecutor made a plea offer to each of the defendants, contingent on all three defendants accepting the plea. At the trial court's behest, the prosecutor agreed to keep the offer open until Monday, July 20, which was the next court date. But before the proceedings were recessed, defendant refused the offer against his counsel's advice.

The morning of July 20, defendant refused to come to court. The court was informed that defendant had been placed "on suicide precaution due to a reported hanging and medication overdose incident on July 15, 2009, while [in custody]. [Defendant] has been partly cooperative with treatment since his transfer. . . . Presently [defendant] is not cooperating at all. Will clear [defendant] to court with recommendation for waist restraints for self-precaution." After the lunch recess, defendant was brought into court in a wheelchair; he was nonresponsive. Defense counsel declared a doubt as to defendant's competency. Initially, the trial court expressed its belief that defendant had the capacity to cooperate, but was choosing not to do so. Eventually, the court appointed Dr. Kaushal Sharma to conduct an expedited psychiatric evaluation of defendant to be completed within three days while jury selection continued.4 The prospective jurors were informed that Thomas was no longer a part of the case and ordered back two days later, on Wednesday morning, July 22.

On Tuesday, July 21, Dr. Sharma reported that he had evaluated defendant and concluded that defendant was not incompetent, simply unwilling to cooperate. The trial court declined to appoint a second doctor to evaluate defendant, but told defendant he could retain a doctor of his own. The trial court indicated its inclination to deny Pazmore's motion to sever her trial from defendant's, but continued the matter to the next day. That night, defendant was examined by a psychiatrist of his own choosing.

The next day, the trial court denied Pazmore's motion to sever. After a recess, defendant indicated he wanted to enter a plea with the understanding that the trial court would recommend that he be housed in a prison that had mental health treatment available. The trial court confirmed with both defendant and his attorney that, notwithstanding his nonresponsiveness the last few days, defendant was now clear-headed and understood the consequences of pleading to the charges. After being advised of his rights and the consequences of a plea, defendant pled no contest to the following counts, and admitted the gun use enhancement on counts 13 and 14:

At the sentencing hearing on August 4, 2009, the trial court dismissed counts 1 and 2, and sentenced defendant to total of 17 years in prison on the remaining counts.

On June 17, 2010, this court granted defendant's request for relief from default for failure to file a timely notice of appeal and gave defendant until July 19, 2010, to file the notice. On that date, defendant filed a notice of appeal from "the order or judgment entered on 8/9/09 [sic]."5 The notice of appeal states both that the appeal is based on "the sentence or other matters occurring after the plea" and that it "challenges the validity of the plea or admission." With his notice of appeal, defendant submitted a Request for a Certificate of Probable Cause, including the requisite written statement executed under penalty of perjury (the written statement). (Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304.)6 According to the written statement, sheriff's deputies opened a letter to defendant from defense counsel which outlined counsel's trial strategy; deputies did not give the letter to defendant until 62 days later, after he had entered his plea. Defendant declared that the deputies' actions interfered with his attorney-client relationship and, therefore, his right to counsel; in addition, because defendant did not receive counsel's letter, he believed counsel was not preparing for trial causing a breakdown of the attorney-client relationship which affected defendant's mental state.7 On July 22, 2010, the trial court denied defendant's Request for a Certificate of Probable Cause.

DISCUSSION

A. Dismissal for Failure to Obtain a Certificate of Probable Cause

The People contend the appeal must be dismissed because defendant did not obtain a Certificate of Probable Cause as required by section 1237.5 and rule 8.304(b). Defendant counters that section 1237.5 is inapplicable.8 Relying on People v Kraus (1975) 47 Cal.App.3d 568 (Kraus), defendant argues that this is so because the appeal "relies wholly on matters raised and submitted to the court after judgment as grounds for setting aside his conviction" and therefore it is an appeal from "denial of a post judgment motion to vacate a conviction based on a plea of guilty," which does not require a Certificate of Probable Cause. We conclude that the absence of a Certificate of Probable Cause is fatal to defendant's appeal and requires dismissal.

Section 1237.5 provides, "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or [no contest] 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." Rule 8.304(b)(4)(B) provides that section 1237.5 need not be complied with if the appeal is based on "[g]rounds that arose after entry of the plea and do not affect the plea's validity."

Generally, a defendant who has pled no contest may not obtain review of "certificate issues" (i.e., constitutional, jurisdictional, or other grounds going to the legality of the proceedings) unless he has complied with section 1237.5. (People v. Aguilar (2003) 112 Cal.App.4th 111, 115.) The exception to this general rule is that an appeal may be taken without a certificate of probable cause "on noncertificate grounds, which go to postplea matters not challenging his plea's validity and/or matters involving a search or seizure whose lawfulness was contested pursuant to section 1538.5." (People v. Mendez (1999) 19 Cal.4th 1084, 1096 (Mendez).) Unless the defendant has complied with section 1237.5 (or the exception applies), the Court of Appeal may not proceed to the merits and must dismiss the appeal. If the exception applies, the court may address "noncertificate issues" but must decline to address certificate issues. (Mendez, at p. 1099.)

It is well settled that, "[i]n determining the applicability of section 1237.5, the crucial issue is what the defendant is challenging, not the time or the manner in which the challenge is made. . . . If a defendant challenges the validity of his plea by way of a motion to withdraw the plea, he cannot avoid the requirements of section 1237.5 by labe[l]ing the denial of a motion as an error in a proceeding subsequent to the plea." (People v. Ribero (1971) 4 Cal.3d 55, 63-64.) In Mendez, our Supreme Court held that mental incompetence is a certificate issue inasmuch as it goes to the legality of the proceedings and, specifically, the validity of the plea. (Mendez, supra, 19 Cal.4th at p. 1100.) And in In re Chavez (2003) 30 Cal.4th 643, 651, the court held that ineffective assistance of counsel (i.e., denial of the right to counsel) is also a certificate issue.

Here, the basis of defendant's appeal is that the interference with his attorney-client communication (1) denied him the right to counsel and (2) caused a mental breakdown. Both of these are certificate issues. Thus, the absence of a Certificate of Probable Cause requires dismissal of the appeal.

Defendant's reliance on Kraus for a contrary result is misplaced. In Kraus, supra, 47 Cal.App.3d 568, the defendant was sentenced on January 7, 1974, based upon his no contest plea to two sex offenses. A month later, a new defense attorney filed a motion to set aside the plea on the grounds that the defendant had been unable to understand the nature and consequences of his plea, the probation report and psychiatric report considered by the trial court at sentencing contained misstatements, and the sentence was unduly severe. On March 25, 1974, the trial court denied the motion to vacate, expressly finding that the defendant was legally sane, competently represented and understood the consequences of his plea; it also denied defendant's request for a Certificate of Probable Cause. The appellate court denied the People's motion to dismiss the appeal. It reasoned that the motion to vacate was in substance an application for a writ of error coram nobis, which is appealable as an order made after judgment, affecting the substantial rights of the party. Accordingly, no Certificate of Probable Cause was required. (Id. at pp. 572-574.)

Kraus is inapposite to this case for two reasons. First, unlike the defendant in Kraus, here defendant never made a motion to vacate the judgment. Second, even if we were to treat the written statement in support of the Request for Certificate of Probable Cause as a motion to vacate the judgment, it does not meet the requirements for a writ of error coram nobis. These requirements are that: "`(1) Petitioner must "show that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment." [Citations.] (2) Petitioner must also show that the "newly discovered evidence . . . [does not go] to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial." [Citations.] This second requirement applies even though the evidence in question is not discovered until after the time for moving for a new trial has elapsed or the motion has been denied. [Citations.] (3) Petitioner "must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ . . . ."' [Citation.]" (People v. Kim (2009) 45 Cal.4th 1078, 1093.) The allegedly new fact must have been unknown and in existence at the time of the judgment. (Ibid.)

Here, the written statement does not show any new fact which was not known to defendant before he entered his plea on July 22, 2009. Specifically, the written statement does not show that the letter or its interception were new facts that could not, with the exercise of reasonable diligence, have been known to defendant before he entered his plea. Although the written statement alleges that defendant was not given the letter from counsel until after he entered his plea, there is no allegation that defendant was unaware of the letter's contents. For example, defendant does not declare that defense counsel did not tell defendant about the letter or discuss the contents of the letter with defendant before defendant entered his plea. In fact, the record supports a contrary conclusion. The June 4 letter states, "When I see you on the 9th we can discuss this." From this statement, it is reasonable to infer that the fact defendant had not received the letter must have come up at the subsequent meetings between defendant and his counsel or, even if it did not, counsel discussed with defendant the matters addressed in the letter. Thus, it is reasonable to infer that defendant and counsel knew that defendant had not received the letter for more than one month before defendant entered his plea on July 22. During this time, due diligence required that defendant be provided with a copy of the letter and that efforts be made to locate the original. Absent a showing that defendant did not know about the missing letter before defendant entered his plea, defendant has not shown the discovery of a new fact unknown to defendant at the time of the judgment, as required for a writ of error coram nobis. Therefore, the appeal must be dismissed.

DISPOSITION

The appeal is dismissed.

FLIER, J. and GRIMES, J., concurs.