People v. Salsbury CA5

Filed 11/4/26 P. v. Salsbury CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT THE PEOPLE, F090483 Plaintiff and Respondent, (Super. Ct. No. RF009786A) v. CLIFFORD DALE SALSBURY, OPINION Defendant and Appellant. THE COURT * APPEAL from a judgment of the Superior Court of Kern County. Kenneth Green, Judge; Murray J. Robertson, Commissioner. † Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. * Before Franson, Acting P. J., Meehan, J. and Guerra, J. † Judge Green presided on August 14, 2025; Commissioner Robertson presided on September 11, 2025.  -ooOoo- INTRODUCTION Defendant Clifford Dale Salsbury entered into a plea agreement under which he pled no contest to one count of making criminal threats (Pen. Code, 1 § 422, subd. (a)) and admitted the aggravating circumstance that he was armed with or used a weapon at the time of the commission of the crime (Cal. Rules of Court, rule 4.421(a)(2)). The imposition of sentence was suspended and the court admitted defendant to probation for a period of three years, conditioned on him serving the first 270 days of his probationary period in the county jail; various other conditions were imposed. Among them was a 10- year protective order issued pursuant to section 136.2, subdivision (i)(1). Defendant, proceeding in propria persona, filed notices of appeal, one of which appears to be an attempt to withdraw his plea and both of which challenge the criminal protective order on the ground the protected persons live in defendant’s house and he is thereby rendered homeless and unable to retrieve his belongings from the residence. Defendant did not request a certificate of probable cause. Appellate counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 indicating counsel has been unable to identify any arguable issues for reversal on appeal and asking us to independently review the record for error. Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the Wende brief. More than 30 days have elapsed and defendant has not filed a supplemental brief. Having considered the contentions raised by defendant and conducting our own independent review of the record, we affirm. 1 Undesignated statutory references are to the Penal Code. 2.  BACKGROUND I. Complaint On July 1, 2025, the Kern County District Attorney filed a complaint charging defendant with making criminal threats against Joshua R. (§ 422, subd. (a); count 1), misdemeanor exhibiting a firearm (§ 417, subd. (a)(2)(B); count 2), and two misdemeanor counts of cruelty to a child by endangering the health of two confidential victims aged 11 and six years old, respectively (§ 273a, subd. (b); counts 3 and 4). With respect to count 1, the People alleged the aggravating circumstances that defendant was armed with or used a weapon at the time of the commission of the crime (Cal. Rules of Court, rule 4.421(a)(2)), and had prior convictions as an adult or sustained petitions as a juvenile that were numerous or of increasing seriousness (id., subd. (b)(2).) II. Plea The parties appeared on August 14, 2025, and defense counsel indicated defendant would be entering a plea of no contest to count 1 conditioned on a maximum sentence of 16 months. The prosecutor added that defendant would be admitting an aggravating circumstance pursuant to California Rules of Court, rule 4.421(a)(2) and protective orders would be entered at the time of sentencing on behalf of Joshua and the two confidential victims. The court confirmed that defendant initialed and signed a felony advisement of rights, waiver, and plea form. The form noted that the terms of the plea included a criminal protective order for Joshua and the two confidential victims. Defendant initialed paragraphs indicating the plea was entered freely and voluntarily, with understanding of the charges and possible defenses, and following an opportunity to speak with his attorney regarding the case, his defenses and constitutional statutory rights, and the consequences of the plea. He initialed additional paragraphs acknowledging the consequences of a guilty plea, his constitutional rights, and his waiver of those rights. 3.  The court confirmed that defendant had reviewed his rights with his attorney, understood them, and wished to give them up to take advantage of the plea agreement. The court found the waiver of rights was knowing, intelligent, and voluntary. The parties stipulated to a factual basis for the plea based on police reports and the court found a factual basis for the plea. Defendant then entered a plea of no contest to count 1 and admitted the allegation that he was armed with or used a weapon at the time of the commission of the crime. The remaining counts and allegations were dismissed. III. Sentencing Defendant was sentenced on September 11, 2025. The imposition of sentence was suspended and the court admitted defendant to probation for a period of three years, conditioned on him serving the first 270 days of his probationary period in the county jail. Other terms and conditions were imposed, including that he not knowingly come within 100 yards of the victims, their residence, or their place of employment or school. The court calculated defendant had 75 days of actual custody credit and 74 days of good conduct and work credit, for a total of 149 days credit. The court ordered a 10-year protective order, pursuant to section 136.2, subdivision (i)(1), listing the protected persons as Joshua and the two confidential victims, and prohibiting defendant from abusing or having contact with the protected persons, or coming within 100 yards of the protected persons’ home, job or workplace, vehicle, or school. During the hearing, defendant stated that he had a question and the court permitted him an opportunity to speak privately with his attorney. Thereafter, defense counsel informed the court that the protected persons lived in defendant’s house, as did defendant’s wife, and defendant was concerned that he would violate the protective order by telephoning his wife to get money or a ride. The court stated it was unlikely defendant would be considered in violation if he telephoned his wife and someone else answered, provided defendant hung up immediately without saying anything. The court 4. admonished defendant not to deliberately contact anyone who is a protected party. Defendant then asked if he could get his van from the residence and his attorney stated she would discuss that issue with him. IV. Notices of Appeal On September 13, 2025, defendant, proceeding in propria persona, sent a notice of appeal to the superior court, challenging the criminal protective order and “probation condition order.” (Capitalization omitted.) He stated he did not commit the crime and entered his plea out of fear of going to prison. He asserted the incident leading to the charges arose because he feared harm from Joshua, who had hurt him in the past. He further asserted the incident arose out of a verbal disagreement that Joshua escalated to physical violence. He acknowledged that he “warn[ed]” (underscoring omitted) Joshua not “to try that ag[a]in” and stated he would defend himself and showed Joshua his holstered revolver. The notice of appeal was filed September 22, 2025. Also on September 13, 2025, defendant sent a notice of appeal to this court, challenging the protective order. He sought restoration of his parental rights over the confidential victims, who he asserted were his grandchildren whom he had adopted. He further asserted that the criminal protective order rendered him homeless and he could not retrieve his van or other belongings from the home. The notice of appeal was filed September 24, 2025. DISCUSSION I. Challenge to Plea Section 1237.5 provides, in relevant part: “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of … 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 5.  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 court.” “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 ….” (People v. Panizzon (1996) 13 Cal.4th 68, 76 (Panizzon).) To the extent defendant attempts to argue his plea is invalid because he did not commit the offense, the requirements of section 1237.5 apply. Additionally, although defendant did not file a motion to withdraw his guilty plea, an appeal from the denial of such motion would likewise require a certificate of probable cause. (People v. Johnson (2009) 47 Cal.4th 668, 679 (Johnson).) Because defendant did not seek a certificate of probable cause, this claim, which effectively seems to argue he should be permitted to withdraw his plea, is not reviewable on appeal. II. Challenge to Protective Order An exception to section 1237.5’s requirements allows for an appeal after a plea of no contest without a certificate of probable cause where the appeal is based on “[t]he sentence or other matters occurring after the plea … that do not affect [its] validity.” (Cal. Rules of Court, rule 8.304(b)(2)(B).) However, “[e]ven when a defendant purports to challenge only the sentence imposed, a certificate of probable cause 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.” (Johnson, supra, 47 Cal.4th at p. 678.) “Such an agreed-upon aspect of the sentence cannot be challenged without undermining the plea agreement itself. Consequently, an attack upon an integral part of the plea agreement ‘is, in substance, a challenge to the validity of the plea.’ ” (Id. at pp. 678–679.) “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 6. appeal: ‘the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.’ ” (Panizzon, supra, 13 Cal.4th at p. 76.) Here, the criminal protective order was a condition to which defendant agreed when he entered his plea of no contest. The felony advisement of rights, waiver, and plea form noted that the terms of the plea included a criminal protective order for Joshua and the two confidential victims. The prosecutor also mentioned the protective order would be entered at the time of sentencing on behalf of Joshua and the two confidential victims. Consequently, defendant’s challenge to the criminal protective order is a challenge to the validity of the plea, and he was required to obtain a certificate of probable cause before appealing from the court’s imposition of the criminal protective order. (See § 1237.5; Cal. Rules of Court, rule 8.304(b)(1); see also Johnson, supra, 47 Cal.4th at pp. 678, 679; Panizzon, at p. 76.) Regardless, defendant has not asserted any error in the protective order. III. Wende Review After independent review of the record, we find no reasonably arguable factual or legal issues exist. DISPOSITION The judgment is affirmed. 7.