Opinion
F076320
06-08-2020
THE PEOPLE, Plaintiff and Respondent, v. JENNIFER KATHRYN BARROM, Defendant and Appellant.
Tutti Hacking and Paul Stubb, Jr., under appointments by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF160492A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Craig Phillips, Judge. Tutti Hacking and Paul Stubb, Jr., under appointments by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
Before Peña, Acting P.J., Smith, J. and Snauffer, J.
-ooOoo-
Jennifer Kathryn Barrom brings this appeal after pleading no contest to several charges below. We find merit in her claim that her plea was improperly induced by the trial court's erroneous assurance that she would be able to appeal the denial of her suppression motion despite pleading no contest to all charges. Barrom's suppression motion was denied by the magistrate who presided over the preliminary hearing in this matter and defense counsel failed to renew the motion in the superior court, thereby precluding Barrom from raising the issue on appeal. We conditionally reverse the judgment to give Barrom an opportunity to reevaluate her no contest plea and withdraw that plea and proceed to trial if she so desires.
PROCEDURAL HISTORY
Barrom was charged by an amended information with seven counts: transporting methamphetamine (count 1; Health and Saf. Code, § 11379, subd. (a)); possession of a firearm by a felon (count 2; Pen. Code, § 29800, subd. (a)(1)); possession of ammunition by a felon (count 3; § 30305, subd. (a)); misdemeanor possession of narcotics paraphernalia (count 4; Health & Saf. Code, § 11364); misdemeanor being under the influence of a controlled substance (count 5; Health & Saf. Code, § 11550, subd. (a)); being armed with a loaded firearm while possessing methamphetamine (count 6; Health & Saf. Code, § 11370.1, subd. (a)); and misdemeanor driving under the influence of drugs (Veh. Code, § 23152, subd. (e)). The information also alleged prior prison enhancements as to the felony counts. The court dismissed count 1 based on Barrom's motion pursuant to section 995.
Subsequent statutory references are to the Penal Code unless otherwise specified.
Barrom eventually pled guilty to counts 2 through 7 and admitted all prison priors in exchange for a stipulated sentence of three years four months. She entered a waiver pursuant to People v. Cruz (1988) 44 Cal.3d 1247, 1254. She failed to appear for sentencing. When she was eventually sentenced a few months later, she received a higher sentence, five years in prison, pursuant to the terms of the Cruz waiver.
FACTS
The facts are drawn from the preliminary hearing as this case was resolved by plea bargain.
On June 14, 2015, Deputy Alberto Mejia-Rodriguez of the Kern County Sheriff's Department was working at the Central Receiving Facility of the county jail, in Bakersfield. He was patrolling, on foot, a parking lot south of the facility, at approximately 5:45 p.m. that day. He saw Barrom drive into the lot and park in an unauthorized (but not illegal) space near the double doors leading into the facility's lobby. Barrom entered the lobby and began utilizing one of two kiosks meant for depositing money on inmates' books. Mejia-Rodriguez, and a sergeant who had joined him, followed her into the lobby. Mejia-Rodriguez stood next to Barrom. The sergeant also stayed with Mejia-Rodriguez for the duration of his interaction with Barrom.
Mejia-Rodriguez noticed Barrom was wearing sunglasses and was sweating (it was over 100 degrees and "really hot" outside but Mejia-Rodriguez himself was not sweating). Barrom appeared nervous. Mejia-Rodriguez "just believed that she was under the influence" and decided to detain her. He said that two to three minutes after he entered the lobby, Barrom was no longer free to leave. He explained: "I had her detained."
The defense admitted an exhibit showing that the high temperature on the date in question was 103 degrees. The magistrate noted: "[Let the] record reflect that the Court was born and raised in Blythe, California. The Court is aware that the heat of the day is between 5 and 6 o'clock ... [¶] [and] between 5 and 6 o'clock in June on this date, it was hot enough to cause someone to perspire."
Mejia-Rodriguez asked Barrom whether she was on probation or parole, but she answered in the negative. Mejia-Rodriguez asked to "look at her pupils." Barrom agreed and Mejia-Rodriguez shone his light into her pupils; Mejia-Rodriguez did not detect anything unusual about Barrom's pupils (they reacted normally to the light). Mejia-Rodriguez then took a reading of Barrom's pulse; it was rapid - 140 beats per minute. Mejia-Rodriguez was aware that people tend to get nervous around law enforcement officers and that their pulse tends to go up. He did not take a second read of Barrom's pulse at the time, to check whether it subsequently went down.
Thereafter, Mejia-Rodriguez had Barrom perform the Romberg test: she stood with her feet together, arms at her sides, and tilted her head back. Rodriguez-Mejia asked her to tell him when 30 seconds were up; she said 30 seconds were up after 41 seconds. This suggested "she was under the influence." In addition, Barrom "wasn't standing very still." She also had eyelid and hand tremors during the Romberg test. Mejia-Rodriguez acknowledged, however, that the fact that Barrom took 41 seconds before indicating 30 seconds were up suggested she was not under the influence of a nervous system stimulant like methamphetamine, which would have been indicated had she called the 30 seconds before the actual time was up. The fact that she took 41 seconds to indicate 30 seconds were up suggested she was under the influence of a depressant, such as marijuana or an opiate.
Mejia-Rodriguez arrested Barrom for being under the influence of a controlled substance. Mejia-Rodriguez decided to impound Barrom's car as the car could not remain in the parking lot overnight. This was a discretionary decision; he could have allowed her to call someone to pick up the car.
Before the car was towed, Mejia-Rodriguez conducted an inventory search. Barrom told him she had methamphetamine in her purse; the purse was found in the car with 3.05 grams of methamphetamine in it. In addition, a loaded gun, four syringes, and a scale were found in the car. Mejia-Rodriguez also obtained a urine sample from Barrom for chemical analysis as well as a Mirandized statement.
Miranda v. Arizona (1966) 384 U.S. 436.
DISCUSSION
I. Opportunity to Withdraw Plea
Barrom filed, prior to the preliminary hearing, a motion to suppress evidence pursuant to section 1538.5; the People filed an opposition. Subsequently, on October 8, 2015, the magistrate held a combined preliminary hearing and hearing on the motion to suppress evidence. At the end of the hearing, Barrom was held to answer on all charges. Later that day, the magistrate filed a minute order summarily denying the suppression motion.
On May 22, 2017, the first day of jury trial, Barrom, with the assistance of defense counsel, entered into a negotiated plea agreement wherein she agreed to plead to the sheet and admit her prison priors in exchange for a stipulated prison sentence of three years four months. The record indicates some ambivalence on Barrom's part with regard to the plea agreement. Initially she stated she had not had sufficient time to discuss potential defenses with her attorney. Having then spoken to her attorney off the record, she later indicated she had not sufficiently discussed sentencing issues and potential consequences of the plea with him. She again spoke with her attorney off the record, but thereafter still had outstanding questions and concerns. She had the following exchange with the court:
"THE COURT: Do you have any questions for your attorney or me. Go ahead.
"THE DEFENDANT: There was one thing. That - the suppression motion, when I lost that suppression motion, I didn't know that was the whole case right there. Because this whole case is - is no probable cause [to arrest] and illegal search and - but if it - once that's litigated, it can't be brought up again?
"THE COURT: It can on appeal. But you - you have the opportunity by having that motion heard, which apparently you did, to contest the legality of the search and seizure in this case and ask to have that evidence suppressed or excluded during the trial based upon an illegal search or seizure.
"If the court grants it, it's excluded for the trial.... And then on appeal, you can appeal what happened at the trial. You can also appeal that motion.When the court told Barrom she could appeal the denial of her suppression motion after entering a guilty or no contest plea, Barrom entered no contest pleas to the charges in the information and admitted her prison priors.
"On the other hand, if you have the motion, like you did here, and it's denied, which is what my understanding is, and you enter a plea of guilty or no contest to the charges, you will still have the opportunity to file an appeal as it relates to the denial of that motion so it can be heard on appeal.
"Does that answer your question?
"THE DEFENDANT: Yes." (Italics added.)
As a general matter, following a plea of guilty or no contest, search and seizure issues are specifically reviewable on appeal pursuant to section 1538.5, subdivision (m). (People v. Shults (1984) 151 Cal.App.3d 714, 718.) However, to obtain direct appellate review of a magistrate's denial of a motion to suppress evidence, a defendant must either renew the motion in the superior court under section 1538.5, subdivision (i), or raise the search and seizure issues in a motion to set aside the information for lack of probable cause under section 995. (Lilienthal, supra, 22 Cal.3d at p. 896; People v. Hawkins (2012) 211 Cal.App.4th 194, 203; People v. Richardson (2007) 156 Cal.App.4th 574, 584-585, 595; People v. Hinds (2003) 108 Cal.App.4th 897, 900.) In the instant case, defense counsel did neither of these things, thereby precluding Barrom from obtaining direct appellate review of her suppression motion.
The reason for this rule is that "it would be wholly inappropriate to reverse a superior court's judgment for error it did not commit and that was never called to its attention." (People v. Lilienthal (1978) 22 Cal.3d 891, 896, fn. omitted (Lilienthal).)
Barrom argues she should be afforded an opportunity to withdraw her no contest plea as it was induced by the trial court's nugatory assurance or promise that she would be able appeal her suppression motion after entering the plea. A claim that a plea was improperly induced challenges the legality of the proceedings resulting in the plea and is cognizable on appeal. (§ 1237.5; People v. DeVaughn (1977) 18 Cal.3d 889, 896 (DeVaughn).)
Here, the record shows that Barrom characterized the suppression motion as targeting the foundation of the entire case against her (she indicated that after she lost the motion, she realized "that was the whole case right there"). In the suppression motion, the defense sought to suppress Barrom's statements following her arrest, the results of any urine tests, as well as all the items found in her car. The defense contended suppression of this evidence was required because the underlying detention and arrest of Barrom, as well as the search of her car pursuant to the decision to impound it and inventory its contents, were all unconstitutional. The defense also invoked the "'fruit of the poisonous tree'" in arguing for suppression of the above-mentioned categories of evidence. (Wong Sun v. United States (1963) 371 U.S. 471, 488.) Were the suppression motion to be granted, it would potentially affect all the charges against Barrom. Barrom's interaction with the court regarding the suppression motion suggested she was aware of the scope of the suppression motion and its status was a factor for her in evaluating whether to enter a plea. The court assuaged Barrom's concerns by clarifying: "[Y]ou will still have the opportunity to file an appeal as it relates to the denial of that motion[,] so it can be heard on appeal." Once the court essentially promised her that in entering a no contest plea, she would have the right to appeal the denial of her suppression motion, Barrom went ahead and entered the plea. Given this context, the court's assurance that Barrom would be able to appeal the denial of her suppression motion effectively served as a bargain or inducement on the court's part to secure Barrom's change of plea.
"'Where a defendant's plea is "induced by misrepresentations of a fundamental nature" such as a bargain which is beyond the power of the trial court, a judgment based upon the plea must be reversed.'" (People v. Hollins (1993) 15 Cal.App.4th 567, 574 (Hollins); see DeVaughn, supra, 18 Cal.3d at p. 896 [misrepresentations by trial court about preservation of the right to appeal a pretrial motion upon a change of plea constitute "misrepresentations of a fundamental nature"].) Indeed, it repeatedly has been held that when a plea is induced by an inaccurate promise that an issue is preserved for appeal, the defendant "'should be given an opportunity to reevaluate his guilty plea and withdraw that plea and proceed to trial if he so desires.'" (Hollins, supra, at p. 575; see People v. Truman (1992) 6 Cal.App.4th 1816, 1820-1821 (Truman); People v. Bonwit (1985) 173 Cal.App.3d 828, 833 (Bonwit); People v. Coleman (1977) 72 Cal.App.3d 287, 292-293.)
People v. Bowie (1992) 11 Cal.App.4th 1263, 1266-1267 (Bowie) is instructive. In Bowie, the defendant argued that a five-year sentence enhancement imposed under section 667, subdivision (a), pursuant to his admission of an allegation of a prior federal bank robbery conviction, had to be set aside. He asserted the underlying "admission was improperly induced by the trial court's misrepresentation that his ability to appeal the legality of the prior conviction was preserved" despite his admission to the enhancement allegation. (Bowie, supra, at p. 1266.)
As a preliminary matter, Bowie noted that "[a] plea or admission which is improperly induced by a trial court's misrepresentation purporting to preserve for appeal issues waived by such plea or admission may be attacked on appeal as invalid." (Bowie, 11 Cal.App.4th at p. 1266.) Next, Bowie explained: "[The defendant] contends his admission was improperly induced by the trial court's advice that he would be able to appeal the enhancement of his sentence by the federal bank robbery conviction despite his admission that the enhancement allegation was true. Obviously, if the advice was an inducement for the admission and the advice was incorrect, [the defendant] is entitled to have the admission and the enhancement set aside." (Id. at pp. 1266-1267.)
The Bowie defendant had raised a question as to whether his prior federal bank robbery constituted a serious felony for purposes of section 667, subdivision (a). In response, the trial court told him: "Now, you don't waive any legal issues in regard to this. In other words[,] if there is a question about whether or not the law applies to your particular conviction, you don't waive that by admitting it. What you're admitting simply is that it is true, in other words, that you were in fact convicted of this offense on this date. [¶] If you have any legal challenges to whether the statute is legal, whether the statute is constitutional, whether the statute applies to bank robberies or not, you can take those up on appeal ... you don't give up your right to appeal legal issues." (Bowie, supra, 11 Cal.App.4th at p. 1267.)
The Bowie court observed the trial court "was incorrect in advising [the defendant] that his admission preserved his right to appeal whether his federal bank robbery conviction constituted a serious felony under section 667, subdivision (a)." (Bowie, supra, 11 Cal.App.4th at p. 1268.) Bowie concluded: "Since it clearly appears that [the defendant] only admitted the enhancement allegation after being assured that he could appeal on the latter basis, this admission was improperly induced and constitutes grounds for reversal [of the judgment]." (Ibid.) Bowie therefore "reverse[d] and remand[ed] the matter of the prior conviction allegations to the trial court for further proceedings." (Ibid.)
Barrom similarly entered her no contest plea after being assured she could appeal her suppression motion. Under Bowie, her plea was improperly induced, whereby she is entitled to an opportunity to reevaluate her plea and withdraw it and proceed to trial if she so desires. This conclusion is compelled by other applicable cases as well, including Hollins, supra, 15 Cal.App.4th 567. In Hollins, the trial court denied the defendant's section 995 motion but informed him he could appeal the denial and agreed to provide a certificate of probable cause for the purpose. The defendant entered a no contest plea. Hollins described what occurred during the plea colloquy: "[T]he court began the preplea voir dire. After asking [the defendant] if he understood the effect of a nolo contendere plea, the court continued, 'you understand that you are preserving your right to an appeal under the 995 motion, but that that may or may not avail you of anything, you understand that? [¶] A: Yes, ma'am, I do.' The court finished the advisement of and waiver of rights, and [the defendant] entered a plea of 'no contest.'" (Hollins, supra, at pp. 572.) Hollins explained the trial court's advisement that the defendant's right to appeal the denial of his section 995 was preserved notwithstanding the plea was incorrect. (Hollins, supra, at pp. 574-575.) Hollins concluded "'[t]he promise was illusory and therefore was an improper inducement which voids the plea,'" whereby the defendant "'should be given an opportunity to reevaluate his guilty plea and withdraw that plea and proceed to trial if he so desires.'" (Id. at p. 575.)
As noted above, we likewise conclude that Barrom is entitled to an opportunity to reevaluate her no contest plea and withdraw that plea and proceed to trial if she so desires. (See Truman, supra, 6 Cal.App.4th at p. 1821 [where trial court represented, incorrectly, that the defendant would be able to appeal the denial of his section 995 motion after entering guilty plea, the defendant was entitled to "'an opportunity to reevaluate his guilty plea and withdraw that plea and proceed to trial if he so desires'"]; Bonwit, supra, 173 Cal.App.3d at p. 833 [where trial court offered to issue certificate of probable cause for the defendant to appeal the denial of a pre-trial motion following a plea, but the promise was illusory and therefore an improper inducement, the defendant was entitled to an opportunity to withdraw the plea].)
In light of our conclusion, we need not address Barrom's additional claim that defense counsel was ineffective for failing to renew her suppression motion in the superior court. In addition, we hereby deny Barrom's pending motion to expand the scope of appellate counsel's representation to include issues related to a writ of habeas corpus that was filed in the trial court on her behalf. Our resolution of this appeal provides the relief also sought in collateral proceedings, making it unnecessary to expand the scope of appellate counsel's representation to include the latter.
Finally, given the broad scope of Barrom's suppression motion (see above), we reject the People's contention that Barrom should be permitted to withdraw her plea only as to two misdemeanor counts at issue (i.e., being under the influence of a controlled substance (count 5) and driving under the influence of a controlled substance (count 7)). (See People v. Williams (1999) 20 Cal.4th 119, 130 [a defendant meets her initial burden of challenging the constitutionality of a warrantless search or seizure by "simply assert[ing] the absence of a warrant and mak[ing] a prima facie showing to support that assertion"; the prosecution then bears the burden of proving that the search or seizure was constitutionally reasonable].)
DISPOSITION
The judgment is conditionally reversed, and the matter is remanded to the trial court with directions to afford defendant an opportunity to withdraw her no contest pleas. If defendant moves to withdraw her no contest pleas within 45 days of the issuance of the remittitur, the trial court is directed to vacate the pleas and reinstate the operative information for further proceedings. Should defendant fail to move to withdraw her pleas within the specified period, the trial court is directed to reinstate the judgment.