Opinion
C083306
09-26-2017
THE PEOPLE, Plaintiff and Respondent, v. LEONARD COY JONES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62117711)
Defendant Leonard Coy Jones appeals from the trial court's order denying his motion to withdraw his plea. He seeks not only to withdraw the plea but to obtain the retroactive dismissal of all charges against him. Because an order denying a motion to withdraw a plea is nonappealable, we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
On April 17, 2013, defendant was charged with possession of marijuana for sale, cultivating marijuana , and unlawfully carrying a loaded firearm with intent to commit a felony.
On October 1, 2013, defendant pled no contest to cultivating marijuana in exchange for the dismissal of the remaining counts and a grant of probation. The stipulated factual basis for the plea was that on or about September and October 2012 defendant cultivated marijuana in Placer County; he had approximately 737 plants in his possession.
At sentencing, defense counsel noted that the offense actually occurred in Sutter County, but close to the Placer County line.
On November 26, 2013, the trial court suspended imposition of sentence and placed defendant on probation for five years, including 300 days on electronic monitoring. Under the terms and conditions of probation, defendant would forfeit the firearms and $8,000 seized from him, but would obtain the return of over $10,000 and his cell phone. A release of property order was to be prepared for that purpose.
On November 2, 2015, the Placer County Probation Department moved to transfer the case to Sacramento County, where defendant allegedly now lived.
On or about November 30, 2015, defendant, in propria persona, submitted a "motion to withdraw and set aside plea bargain and . . . to dismiss all counts in [case No. 62117711] ab initio." (Capitalization omitted.) He submitted an additional pleading on February 18, 2016. Defendant asserted that the district attorney had failed to return the items the plea agreement required to be returned, that the failure to return his cell phone had caused him to lose his home and his business, that the People had imposed unauthorized booking fees and court costs outside the plea agreement, and that had he known the district attorney would not honor the plea agreement, he would not have entered into it.
On April 21, 2016, defendant's appointed counsel filed a motion for termination of probation pursuant to Penal Code section 1203.3, alleging that it would be in the interest of justice because defendant had committed no further offenses since probation was granted.
On May 18, 2016, defendant submitted a motion for return of property. On June 29, 2016, the trial court signed an order granting the motion.
On August 31, 2016, the trial court heard and denied the motion to terminate probation. (At the outset, the court and defense counsel agreed that defendant's cell phone had been returned the previous month.) The court observed that the five-year term of probation was part of the plea agreement, which the People were entitled to enforce.
Counsel explained that he had filed his motion as the best available way of addressing the inequities that occurred after sentencing. The remedies defendant sought in his pro. per. motion were time-barred or unavailable as a matter of law. A petition for writ of mandate, filed to investigate the merits of defendant's factual claims, had disclosed no proof of any deprivation of property other than the cell phone. Given the People's breach of the plea agreement, the early termination of probation would serve the interest of justice.
Penal Code section 1018 requires any motion to withdraw a plea to be made no later than six months after an order granting probation. --------
The prosecutor asserted that defendant was properly convicted as a drug dealer because he was cultivating far more marijuana than he could consume personally, and admitted to selling to 10 other people at approximately $800 per pound, which yielded the sum ($8,000) forfeited under the plea agreement. Defendant's cell phone was not released promptly because the property release form was inadvertently sent to the wrong agency, which then refused to release the phone without a court order. Defendant's claim that the People's breach caused him to lose his home and business was unsubstantiated, but in any event did not constitute grounds for early termination of probation.
The trial court allowed defendant to speak in support of the motion. Defendant asserted that he had entered his plea because the People had seized his assets and left him penniless, not because he thought he was guilty of a crime. He needed the cell phone because it had all his electronic storage on it and he could not function in his business without it. If he had known he would not be able to recover the phone promptly, he might not have entered into the plea agreement.
The trial court denied the motion to terminate probation because the five-year term was part of the agreement.
On October 5, 2016, the trial court heard defendant's motion to withdraw his plea. Defense counsel restated his view that it was time-barred. Agreeing with counsel, the court denied the motion. Counsel then withdrew his petition for writ of mandate. Lastly, the court granted the probation department's motion for transfer of supervision of the case to Sacramento County.
Defendant filed notice of appeal, specifying only the order denying the motion to terminate probation. He did not obtain a certificate of probable cause.
DISCUSSION
Proceeding in propria persona, defendant does not discuss the order from which his appeal was taken. He attacks only the order denying his motion to withdraw the plea. As below, he claims that the People's breach of the agreement entitled him not only to withdraw his plea, but to have the charges against him dismissed retroactively. His "statement of appealability" (capitalization and bolding omitted) does not cite any legal authority or make any argument to show that an order denying a motion to withdraw a plea is appealable; instead, it simply gives reasons why he thinks the order was mistaken.
Citing a venerable line of case law holding that an order denying a motion to withdraw a plea is not appealable, the People urge us to dismiss the appeal. (People v. Francis (1954) 42 Cal.2d 335; People v. Beckett (1968) 262 Cal.App.2d 145; People v. Parker (1961) 196 Cal.App.2d 704.) We shall do so.
A criminal appeal will lie from a judgment (including an order granting probation), or from an order after judgment that affects a defendant's substantial rights. (Pen. Code, § 1237, subds. (a), (b)). An order denying a motion to withdraw a plea arrived at by means of a plea agreement does not fit into either category. The case law cited by the People squarely holds that an appeal will not lie from such an order, and defendant cites no contrary authority. In his reply brief, defendant does not address the People's argument or the cited case law.
Because the appeal is taken from a nonappealable order, we dismiss it. Therefore we need not reach the People's alternative arguments.
DISPOSITION
The appeal is dismissed.
/s/_________
Robie, J. We concur: /s/_________
Raye, P. J. /s/_________
Hoch. J.