Opinion
B227946
10-26-2011
THE PEOPLE, Plaintiff and Respondent, v. ALLEN PAUL RHODES, Defendant and Appellant.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Zee Rodriguez and Corey J. Robins, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA090346)
APPEAL from a judgment of the Superior Court of Los Angeles County. George Genesta, Judge. Conditionally reversed and remanded with directions.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Zee Rodriguez and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
Allen Paul Rhodes appeals from the judgment entered after he pleaded no contest to one count of second degree robbery and admitted special allegations that he had used a deadly or dangerous weapon during the robbery and that he had a prior juvenile adjudication for robbery that qualified as a "strike" under the "Three Strikes" law. Rhodes contends, and the People agree, that we should conditionally reverse the judgment to permit him to withdraw his plea because the trial court improperly conditioned the plea on his ability to challenge on appeal the denial of his motion under Penal Code section 995 to dismiss the robbery charge against him on the ground of insufficient evidence. Rhodes and the People are correct.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Amended Information
An amended information, dated July 23, 2010, charged Rhodes with one count of second degree robbery (§ 211). It specially alleged that (1) Rhodes personally had used a deadly or dangerous weapon—a pair of scissors—in committing the robbery (§ 12022, subd. (b)(1)); and (2) Rhodes's prior juvenile adjudication for robbery qualified as a "strike" under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Rhodes pleaded not guilty and denied the special allegations.
2. The Plea of No Contest and Certificate of Probable Cause
Before trial, Rhodes moved under section 995 to dismiss the robbery charge against him on the ground that the evidence presented at the preliminary hearing was insufficient to demonstrate the necessary element of force or fear. After reviewing the transcript from the preliminary hearing, the trial court denied the motion, finding sufficient evidence to hold Rhodes to answer to the robbery charge.
After the denial of his section 995 motion, and during jury selection at trial, Rhodes withdrew his not guilty plea and pleaded no contest to the robbery charge. Rhodes also admitted that he had used a deadly or dangerous weapon during the robbery within the meaning of section 12022, subdivision (b)(1), and that he had a prior juvenile adjudication for robbery that qualified as a "strike" under the Three Strikes law. The trial court expressly conditioned Rhodes's plea on his right to obtain a certificate of probable cause so that he could appeal the denial of his section 995 motion. As the court stated, Rhodes's "right to . . . appeal the . . . ruling on [his] [section] 995 motion on whether there was sufficient evidence presented at the time of the preliminary hearing to hold [him] over on a robbery charge is preserved and that can be appealed." In addition, the court noted that it would "issue a [certificate of] probable cause upon request if [Rhodes] wishes to appeal the [section] 995 motion. That issue is preserved for appeal as part of the plea agreement."
Under the terms of the plea agreement, the trial court sentenced Rhodes to a state prison term of seven years, consisting of the middle term of three years for the robbery count, doubled pursuant to the Three Strikes law, plus one year under section 12022, subdivision (b)(1), for use of a deadly or dangerous weapon. On Rhodes's request, the court issued a certificate of probable cause to allow him to appeal the denial of his section 995 motion, and Rhodes filed a notice of appeal.
DISCUSSION
"'Where a defendant's plea is "induced by misrepresentations of a fundamental nature" such as a bargain [that] is beyond the power of the trial court, a judgment based upon the plea must be reversed. [Citations.]' [Citation.]" (People v. Hollins (1993) 15 Cal.App.4th 567, 574.) Such a misrepresentation occurs when the defendant enters a guilty plea based on the promise that he can challenge on appeal the denial of a section 995 motion premised on any ground other than the validity of a search or seizure. (People v. Lilienthal (1978) 22 Cal.3d 891, 897 ["challenges to rulings on section 995 motions premised on other grounds [than the validity of a search or seizure] do not survive a guilty plea"]; People v. Truman (1992) 6 Cal.App.4th 1816, 1820-1821 [defendant's "guilty plea precludes him from seeking review of the denial of his motion pursuant to . . . section 995, notwithstanding the trial court's promises to the contrary[,]" and he thus "is entitled to withdraw his guilty plea if he wishes to do so"].) For these purposes, a plea of no contest is treated the same as a guilty plea. (§ 1016.)
In this case, the trial court expressly promised Rhodes in connection with his no contest plea that he could challenge on appeal the denial of his section 995 motion on the ground that the evidence presented at the preliminary hearing was insufficient to hold him to answer to the robbery charge. The court also issued a certificate of probable cause to allow an appeal to raise the propriety of the denial of the section 995 motion. Nevertheless, issues regarding the denial of Rhodes's section 995 motion on the ground of insufficient evidence do not survive the plea of no contest. Rhodes, therefore, "'should be given an opportunity to reevaluate his . . . plea and withdraw that plea and proceed to trial if he so desires. [Citations.]'" (People v. Truman, supra, 6 Cal.App.4th at p. 1821.)
DISPOSITION
The judgment is conditionally reversed, and the matter is remanded to the trial court. If, within 60 days after this opinion is final, Rhodes moves to withdraw his plea of no contest, the court is directed to grant that motion in accordance with this opinion. If Rhodes does not move to withdraw his plea within the 60-day period, the court shall reinstate the judgment. (See People v. Truman, supra, 6 Cal.App.4th at p. 1828, citing People v. Miller (1983) 33 Cal.3d 545, 556.)
NOT TO BE PUBLISHED.
ROTHSCHILD, J. We concur:
MALLANO, P. J. JOHNSON, J.