Does a defendant have to obtain a certificate of probable cause to challenge the maximum allowable term in a criminal charge?

California, United States of America


The following excerpt is from People v. Garcia, F063103 (Cal. App. 2013):

In addition, defendant's attempt to raise constitutional challenges to the gang registration order does not permit him to avoid the procedural requirements of section 1237.5. For example, "the maximum allowable term reached in a charge bargain, and agreed to by the defendant, is 'part and parcel' of the plea agreement. Consequently, a defendant is required to obtain a certificate of probable cause before challenging the trial court's authority to impose the maximum allowable term reached in a charge bargain," and a certificate is required to raise the argument that the agreed-upon sentence constitutes cruel and/or unusual punishment and violates the double jeopardy provisions of the federal and state constitutions. (People v. Rushing (2008) 168 Cal.App.4th 354, 361-362; People v. Cuevas (2008) 44 Cal.4th 374, 381-382.)

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