Can a criminal appeal from a plea of guilty or no contest proceed with a certificate of probable cause?

A criminal appeal from a plea of guilty or no contest may proceed only with a certificate of probable cause unless it involves an issue relating to the suppression of evidence or postplea proceedings relating to the degree of the crime or the sentence. (People v. Panizzon (1996) 13 Cal.4th 68, 74-75.)

People v. Emery (2006) 140 Cal.App.4th 560 reiterated that the focus in determining the viability of such an appeal is on the substance of a defendant's arguments, not the manner in which the defendant chose to characterize them; "[i]f the challenge is in substance an attack on the validity of the plea, [the] defendant must obtain a certificate of probable cause." (Id. at p. 565.) While the contention raised on appeal was a denial of due process in failing to grant trial counsel's request for a continuance of unspecified length to determine whether the victim's recantation was a basis to withdraw the plea, the merits of that argument rested directly on the validity of the plea and as a result a certificate of probable cause was necessary to pursue the appeal. (Ibid.)

The defendant's efforts to distinguish between People v. Emery and the present case are not persuasive. The only purpose for a continuance in People v. Emery was investigating a basis to set aside the plea. Eliminating the validity of the plea from the equation eliminated any prejudice from the claim of error. In the present case, the only purpose for the defendant to consult with a new attorney was to decide whether to withdraw his plea. Invoking the right to counsel is merely a sterile exercise in abstract constitutional rights in the absence of considering the validity of his plea. As a result, his appeal cannot proceed in the absence of a certificate of probable cause.