P. v. Berlin

Filed 5/29/19 P. v. Berlin CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JASON BERLIN,
Defendant and Appellant.
D073030
(Super. Ct. No. SCD261086)
APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F.
Fraser, Judge. Affirmed.
Raymond Mark DiGuiseppe, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Matthew
Mulford, Deputy Attorneys General, for Plaintiff and Respondent.

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Jason Berlin pleaded guilty to one count of rape of an intoxicated person.
(Pen. Code, § 261, subd. (a)(3).)1 The trial court initially sentenced Berlin to the upper
term of eight years in prison. The court later recalled Berlin's sentence under
section 1170, subdivision (d), and resentenced him to the middle term of six years.
Berlin appeals. He contends (1) the trial court erred by denying his pre-
resentencing motion to withdraw his guilty plea; and (2) the judgment should be reversed
and the matter remanded for the trial court to consider whether to admit Berlin to a
pretrial mental health diversion program under recently-enacted section 1001.36.
We conclude that Berlin's first contention is barred by his failure to obtain a
certificate of probable cause under section 1237.5. Berlin's second contention is
unpersuasive because he is categorically barred from the mental health diversion program
based on his rape conviction. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Over several months, Berlin engaged two self-described "pickup" instructors
(Alexander Smith and Jonas Dick) to help him seduce and have sex with women. On
October 13, 2013, Smith and Dick met the victim and her friend outside a bar in San
Diego and brought them back to an apartment that Berlin had rented. While Dick
distracted the victim's friend, Smith and Berlin raped the victim. The victim was heavily
intoxicated and could not resist. When the victim's friend realized what was happening,
1 Further statutory references are to the Penal Code unless otherwise specified.

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she confronted the men, who told them to leave. Outside the apartment, the victim told
her friend she had been raped, and they called police.
Berlin was charged, along with Smith and Dick, with rape of an intoxicated person
(§ 261, subd. (a)(3)) and rape of an unconscious person (§ 261, subd. (a)(4)). Berlin
pleaded guilty to rape of an intoxicated person and agreed to cooperate with the
prosecution. In exchange, the prosecution agreed to dismiss the remaining charge of rape
of an unconscious person.2
At Berlin's sentencing, the prosecution recommended the middle term of six years
in prison. The trial court disagreed and imposed the upper term of eight years in prison.
Berlin appealed. (See People v. Berlin (D071975, app. filed Mar. 14, 2017).)
While that appeal was pending, the trial court recalled Berlin's sentence under
section 1170, subdivision (d). This court therefore dismissed Berlin's appeal, and the trial
court set a new sentencing hearing. In advance of that hearing, Berlin filed a motion to
withdraw his guilty plea. He primarily argued that his plea was not knowing or voluntary
because his counsel erroneously advised him that he had no valid defense to the charges.
He claimed that competent counsel would have investigated and substantiated a defense
based on Berlin's autism spectrum disorder, which allegedly prevented him from forming
the mental state required for the offense of rape of an intoxicated person.
2 Berlin testified on behalf of the prosecution at Smith's trial. Smith was convicted
of rape of an intoxicated person and rape of an unconscious person. This court affirmed
his conviction. (See People v. Smith (Dec. 21, 2017, D071479) [nonpub. opn.].) Dick
pleaded guilty to rape of an unconscious person.

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At the new sentencing hearing, the trial court denied Berlin's motion to withdraw
his plea. The court found that it had no jurisdiction to consider the motion because it was
outside the scope of resentencing under section 1170, subdivision (d). (See People v.
Alanis (2008) 158 Cal.App.4th 1467, 1476.) After reconsidering Berlin's sentence, the
court decided to impose the middle term of six years in prison.
Berlin appealed again. In connection with his notice of appeal, he requested a
certificate of probable cause. He contended that the issue of the court's jurisdiction to
consider his motion to withdraw his plea was a nonfrivolous ground for appeal. The trial
court denied his request. Berlin challenged this denial by petition for writ of mandate,
which this court summarily denied. (Berlin v. Superior Court (D073946, May 11,
2018).) Berlin petitioned for review in the California Supreme Court, but he was
unsuccessful. (Berlin v. Superior Court (S248881, June 27, 2018).) This appeal has
therefore proceeded without a certificate of probable cause, and this court entered an
order limiting the issues accordingly.3
3 The Attorney General has filed an unopposed request for judicial notice, which we
grant in part. We will take judicial notice of the appellate record in People v. Berlin
(D071975) and the portion of the appellate record in People v. Smith (D071479)
reflecting Berlin's trial testimony for the prosecution. (Evid. Code, §§ 452, subd. (d),
459, subd. (a).) We decline to take judicial notice of a document concerning the
legislative history of Penal Code section 1001.36 because it is not relevant to the issues
resolved in this appeal. (See People v. Townsel (2016) 63 Cal.4th 25, 42, fn. 2 [court
need not take judicial notice of irrelevant materials].)

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DISCUSSION
I
Motion to Withdraw Guilty Plea
Berlin contends the trial court erred by denying his motion to withdraw his guilty
plea on jurisdictional grounds. He claims the judgment should be reversed so that the
court can consider his motion on its merits.
Because Berlin appeals following a guilty plea, we must first consider whether his
contention is barred by his failure to obtain a certificate of probable cause. "The right to
appeal from a final judgment of conviction based on a plea of guilty or no contest is
subject to certain limitations, including first obtaining a certificate of probable cause from
the trial court." (People v. Arriaga (2014) 58 Cal.4th 950, 958 (Arriaga), citing §§ 1237,
subd. (a), 1237.5.) "The provision lays down a 'condition precedent' to the taking of an
appeal within its scope. [Citation.] It is a general 'legislative command' to defendants.
[Citation.] It is not an authorization for 'ad hoc dispensations' from such a command by
courts. [Citation.] Indeed, it effectively precludes dispensations of this sort, which are
'squarely contrary' to its terms [citations]." (People v. Mendez (1999) 19 Cal.4th 1084,
1098 (Mendez).)
" '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
money is spent preparing the record and the briefs for consideration by the reviewing

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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].' " (People v. Buttram (2003) 30 Cal.4th
773, 781.)
Moreover, as directly relevant here, "[a] defendant must obtain a certificate of
probable cause in order to appeal from the denial of a motion to withdraw a guilty plea,
even though such a motion involves a proceeding that occurs after the guilty plea."
(People v. Johnson (2009) 47 Cal.4th 668, 679.) This requirement applies both where a
defendant contends his motion should have been granted and where, as here, the
defendant seeks remand for the trial court to reconsider the motion in the first instance.
"Whether the appeal seeks a ruling by the appellate court that the guilty plea was invalid,
or merely seeks an order for further proceedings aimed at obtaining a ruling by the trial
court that the plea was invalid, the primary purpose of section 1237.5 is met by
requiring a certificate of probable cause for an appeal whose purpose is, ultimately, to
invalidate a plea of guilty or no contest." (Id. at p. 682; accord, People v. Brown (2010)
181 Cal.App.4th 356, 361.)
Berlin failed to obtain a certificate of probable cause. He is therefore precluded
from raising issues that challenge the validity of his guilty plea, including his contention
that the court erred by denying his motion to withdraw his plea.

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Berlin claims an "exception" to the certificate requirement applies, but the statute
admits no such exceptions where a certificate is otherwise required. (See Mendez, supra,
19 Cal.4th at p. 1098.) Berlin relies on People v. Totari (2002) 28 Cal.4th 876, but the
exceptions identified in that opinion are not exceptions to the certificate requirement.
They are exceptions to the general rule that a postjudgment order " 'ordinarily is not
appealable when the appeal would merely bypass or duplicate appeal from the judgment
itself.' " (Id. at p. 882.) Here, as we discuss further below, the order denying Berlin's
motion to withdraw his plea was not a postjudgment order. It was entered before the
appealed judgment, and it is therefore reviewable on appeal from the judgment itself.
Totari has no application here.
Berlin also argues that the certificate requirement should not apply because
otherwise the merits of his motion to withdraw his plea would escape review. But the
purpose of the requirement of a certificate of probable cause is, in fact, to prevent
appellate review if the defendant cannot state a nonfrivolous ground for appeal. A
defendant subject to the certificate requirement may not appeal without it. (§ 1237.5
["No appeal shall be taken . . . ."].) Here, the trial court determined that Berlin had not
raised a nonfrivolous ground for appeal that would justify issuing a certificate of probable
cause. We summarily denied Berlin's petition for writ of mandate and the Supreme Court
likewise denied review. It would subvert the purpose of the certificate requirement for
this court to examine the merits of Berlin's contention again in this appeal. We express
no opinion whether Berlin's claims of ineffective assistance of counsel might be pursued
in other proceedings, such as habeas corpus.

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Separately, Berlin claims the order denying his motion to withdraw his plea should
be seen as a postjudgment order (an appeal from which would not be subject to the
certificate requirement, see Arriaga, supra, 58 Cal.4th at p. 960) because it occurred after
his initial sentencing. We disagree. The order was entered prior to Berlin's resentencing.
The resentencing resulted in a new sentence and therefore a new judgment. (See People
v. Rivera (1984) 157 Cal.App.3d 494, 497 ["The resentence became the sentence and thus
the judgment."]; see also People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9; People v.
Wilcox (2013) 217 Cal.App.4th 618, 625 [" 'A "sentence" is the judgment in a criminal
action . . . .' "].) The new judgment following resentencing was generally appealable
as a final judgment of conviction. (§ 1237, subd. (a); see People v. Roe (1983)
148 Cal.App.3d 112, 118.) In an appeal from that judgment—assuming the certificate
requirement has been met (or was not applicable)—Berlin could challenge any
intermediate order or decision affecting the judgment. (See People v. Mena (2012)
54 Cal.4th 146, 152-153; People v. Allgood (1976) 54 Cal.App.3d 434, 439.) The trial
court's order denying Berlin's motion to withdraw his plea was plainly an intermediate
order affecting the judgment, since the court would not have entered the appealed
judgment if it had granted Berlin's motion. It was therefore an intermediate order,
leading to an appealable judgment, and not a postjudgment order.
In sum, because Berlin has appealed from a judgment following his guilty plea,
and his contention on appeal challenges the validity of that plea, he was required to
obtain a certificate of probable cause to proceed. Berlin has not obtained a certificate of

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probable cause. His contention that the court erred by denying his motion to withdraw
his plea is therefore barred, and we will not consider its merits.
II
Mental Health Diversion
Berlin next contends the judgment should be reversed and the matter remanded for
the trial court to determine whether he should be granted mental health diversion under
section 1001.36. Section 1001.36 was enacted while this appeal was pending and became
effective immediately. (See Stats. 2018, ch. 34, §§ 24, 37.) Berlin argues that
section 1001.36 applies retroactively to him because it is an ameliorative statute and his
case is not yet final on appeal. (See In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada).)
Section 1001.36 created a pretrial diversion program for certain defendants who
suffer from mental disorders and meet the criteria specified in the statute. (§ 1001.36,
subd. (b).) If a defendant meets these criteria, the trial court may postpone criminal
proceedings against him to allow the defendant to undergo mental health treatment.
(§ 1001.36, subds. (a), (c).) If the defendant performs satisfactorily in diversion, the trial
court shall dismiss the criminal charges against him. (§ 1001.36, subd. (e).)
Three months after section 1001.36 was enacted and became effective, the statute
was amended to exclude defendants like Berlin who have been charged with rape.
(§ 1001.36, subd. (b)(2)(C), added by Stats. 2018, ch. 1005, § 1.) The amendment
became effective approximately three months later. (See Cal. Const., art. IV, § 8,
subd. (c), par. (1); Gov. Code, § 9600, subd. (a).)

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The Attorney General argues that this contention, too, is barred by Berlin's failure
to obtain a certificate of probable cause. Recent opinions have split on the issue of
whether a defendant must obtain a certificate of probable cause to raise retroactivity
arguments in other, similar contexts. (Compare People v. Baldivia (2018)
28 Cal.App.5th 1071, 1079 and People v. Hurlic (2018) 25 Cal.App.5th 50, 57-59
[certificate not required] with People v. Kelly (2019) 32 Cal.App.5th 1013, 1016-1017
[certificate required].) The Attorney General also argues that section 1001.36 should not
be given retroactive effect. (Cf. People v. Frahs (2018) 27 Cal.App.5th 784, 791, review
granted Dec. 27, 2018, S252220 [holding that section 1001.36 is retroactive under
Estrada]; In re M.S. (2019) 32 Cal.App.5th 1177, 1191 (M.S.) [same].)
We need not consider these arguments because, even assuming that Berlin may
raise this contention without a certificate of probable cause, and further assuming that
section 1001.36 applies retroactively under Estrada, Berlin is not entitled to relief
because he is categorically excluded from diversion under the current statute. As noted, a
defendant may not be granted diversion if he is charged with certain offenses, including
rape. (§ 1001.36, subd. (b)(2)(C).) Berlin was charged with rape of an intoxicated
person and rape of an unconscious person. He is therefore ineligible for diversion under
current law. (See M.S., supra, 32 Cal.App.5th at p. 1191 [pretrial diversion under
§ 1001.36 not available to juvenile, found to have committed murder, whose appeal was
pending on and after statute was amended to exclude enumerated crimes].) Even
assuming that section 1001.36 applied to Berlin under Estrada, he could not benefit from
it.

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Berlin claims that under Estrada he should enjoy the benefit of section 1001.36 as
initially enacted, which did not exclude defendants charged with rape. Berlin is incorrect.
Under Estrada, Berlin would enjoy the benefit of unamended section 1001.36 only if we
could conclude the Legislature intended the unamended version to apply retroactively to
nonfinal cases like this one. We cannot reach such a conclusion here.
" 'The Estrada rule rests on an inference that, in the absence of contrary
indications, a legislative body ordinarily intends for ameliorative changes to the criminal
law to extend as broadly as possible, distinguishing only as necessary between sentences
that are final and sentences that are not.' " (People v. Superior Court (Lara) (2018)
4 Cal.5th 299, 308.) "When the Legislature amends a statute so as to lessen the
punishment it has obviously expressly determined that its former penalty was too severe
and that a lighter punishment is proper as punishment for the commission of the
prohibited act. It is an inevitable inference that the Legislature must have intended that
the new statute imposing the new lighter penalty now deemed to be sufficient should
apply to every case to which it constitutionally could apply. . . . This intent seems
obvious, because to hold otherwise would be to conclude that the Legislature was
motivated by a desire for vengeance, a conclusion not permitted in view of modern
theories of penology." (Estrada, supra, 63 Cal.2d at p. 745.)
In order to apply the unamended section 1001.36 retroactively under Estrada, we
would have to infer that the Legislature determined that the lack of mental health
diversion for defendants charged with the specified offenses (including rape) was too
severe a penalty and continuing to apply such a rule in nonfinal cases would be an act of

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vengeance. But the subsequent amendment to section 1001.36 forecloses that inference.
It specifically excludes those defendants from the mental health diversion program. We
may therefore infer that this exclusion is not too severe a punishment. It is, in fact,
exactly what the Legislature intends. The Estrada rule does not compel the retroactive
application of unamended section 1001.36.
Berlin asserts that applying the amended section 1001.36, rather than the
unamended version, would violate the federal and state prohibitions on ex post facto
laws. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) Again, he is incorrect. As
our Supreme Court has explained, " ' "any statute [1] which punishes as a crime an act
previously committed, which was innocent when done; [2] which makes more
burdensome the punishment for a crime, after its commission, or [3] which deprives one
charged with crime of any defense available according to law at the time when the act
was committed, is prohibited as ex post facto." ' " (Tapia v. Superior Court (1991)
53 Cal.3d 282, 294; accord, People v. White (2017) 2 Cal.5th 349, 360.) "Through this
prohibition, the Framers sought to assure that legislative Acts give fair warning of their
effect and permit individuals to rely on their meaning until explicitly changed." (Weaver
v. Graham (1981) 450 U.S. 24, 28-29 (Weaver); accord, In re Vicks (2013) 56 Cal.4th
274, 287.)
"Critical to relief under the Ex Post Facto Clause is not an individual's right to less
punishment, but the lack of fair notice and governmental restraint when the legislature
increases punishment beyond what was prescribed when the crime was consummated.
Thus, even if a statute merely alters penal provisions accorded by the grace of the

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legislature, it violates the Clause if it is both retrospective and more onerous than the law
in effect on the date of the offense." (Weaver, supra, 450 U.S. at p. 30.)
On the date of Berlin's offense, he would not have been eligible for mental health
diversion (because the program did not exist yet). Similarly, under amended
section 1001.36, he is not eligible for mental health diversion (because he is categorically
excluded). The amendment to section 1001.36 did not increase the punishment Berlin
faced, when compared with the date of the commission of his offense, because in both
instances mental health diversion would be unavailable to Berlin. The amended statute
does not violate the constitutional prohibitions on ex post facto laws as applied to Berlin.
(See People v. Cawkwell (2019) 34 Cal.App.5th 1048, 1054.)
Berlin relies on People v. Perez (1998) 68 Cal.App.4th 346, but it is
distinguishable. Perez considered a statutory amendment that replaced a pretrial drug
diversion program with a deferred entry of judgment program. (Id. at p. 351.) The
defendant in Perez committed his offense while the diversion program was in effect, but
the trial court applied the later-enacted deferred entry of judgment program to his case.
(Id. at pp. 349-350.) Perez held that such application "arguably" violates ex post facto
principles: "[A]pplication of the 1997 amendments to section 1000 to pre-1997 conduct
can be viewed as making a defendant's punishment more burdensome than the applicable
punishment at the time of the commission of the alleged conduct. [Citation.] Therefore,
application of 1997 section 1000 to conduct committed before January 1, 1997, arguably
is a prohibited application of an ex post facto law." (Id. at p. 356, fn. omitted.)

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Unlike in Perez, applying amended section 1001.36 to Berlin does not result in
any greater punishment than Berlin faced when he committed his offense. In both cases,
as noted, pretrial mental health diversion would not be available to him. Berlin has not
established any ex post facto violation.
DISPOSITION
The judgment is affirmed.
GUERRERO, J.
WE CONCUR:
IRION, Acting P. J.
DATO, J.

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