Does the Attorney General have the authority to bar a no contest plea?

The Attorney General asserts that although the trial court's actions were in excess of its jurisdiction, the court did not lack fundamental jurisdiction, and as a result the judgment is voidable, but not void. Because the judgment is voidable, the Attorney General argues, the lack of a certificate of probable cause bars the appeal. Indeed, "[t]he erroneous acceptance of a plea bargain is only an act in excess of jurisdiction and hence is not void for want of fundamental jurisdiction." (People v. Webb, supra, 186 Cal.App.3d at pp. 411-412.)

A certificate of probable cause is required when a defendant pleads guilty and thereafter challenges the "constitutional, jurisdictional, or other grounds going to the legality of the proceedings." ( 1237.5, subd. (a).) "[T]he critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5." (People v. Panizzon, supra, 13 Cal.4th at p. 76.) Here, defendant contends his conviction was unconstitutional and the proceedings did not comply with

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sections 1368 and 1369. These are bases that fall squarely under the requirements of section 1237.5. Moreover, competence issues are encompassed within the requirements of section 1237.5 and require a certificate of probable cause. (See Mendez, supra, 19 Cal.4th at p. 1104; People v. Hodges (2009) 174 Cal.App.4th 1096, 1105 ["defendant's mental competency argument is barred for lack of certificate of probable cause"].)

"[T]he decision to plead guilty is undeniably a profound one," and before accepting a guilty or no contest plea, "a trial court must satisfy itself that the waiver of [the defendant's] constitutional rights is knowing and voluntary." (Godinez v. Moran, supra, 509 U.S. at pp. 398. 400.) At the time of the plea, the court had never made a determination that defendant was competent to proceed, despite its previous declaration of doubt and suspension of the proceedings.⁶ We question whether a defendant who pled guilty under such circumstances should be bound by that choice, even in the absence of a certificate of probable cause.