Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 206995-01.
RIVERA, J.
Kenneth Brumfield (defendant) appeals from a judgment upon his plea of guilty to assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)) and receiving stolen property (§ 496, subd. (a)). He also admitted that he had served two prior prison terms (§ 667.5, subd. (b)). On appeal, he contends that he must be given the opportunity to withdraw his plea because it was based on an illusory promise. The Attorney General concedes that remand is appropriate. We will remand the matter to allow defendant the opportunity to withdraw his guilty plea.
All further statutory references are to the Penal Code.
I. FACTUAL BACKGROUND
On February 26, 2008, a complaint was filed charging defendant with two counts of second degree robbery (§ 211) with the allegations that he was armed with a firearm (§§ 12022, subd. (a)(1), 12022.53, subd. (b)), and two counts of assault with a firearm (§ 245, subd. (a)(2)). The complaint further alleged that defendant suffered a prior strike conviction and three prior prison terms. The charges were based on defendant’s participation with a codefendant in a robbery and assault of two employees at a parking garage.
On February 29, 2008, defendant moved to dismiss the complaint on the ground that it had previously been dismissed on two occasions (§ 1387). On the first occasion, the magistrate approved a one-day continuance of the preliminary hearing after a request by the codefendant’s counsel despite the fact that defendant objected and did not waive time. The following day defendant moved to dismiss pursuant to section 859b for failure to hold the preliminary hearing within 60 days. The court dismissed the case.
The People refiled the complaint which was again dismissed on defendant’s motion pursuant to section 995. Defendant’s motion argued his substantial rights were violated due to the court’s violation of the one-session rule in that the preliminary hearing was continued several times and bifurcated over his objections, and because he was handcuffed throughout the hearing.
In ruling on defendant’s motion under section 1387, the court found that the first dismissal was due to excusable neglect but that the second was not. The court ruled that the People could proceed on the two robbery counts and enhancements, but granted the motion with respect to the assault charges finding that they were not violent felonies within the meaning of section 1387.1.
Section 1387 provides in pertinent part, “(a) An order terminating an action pursuant to this chapter, or Section 859b, 861, 871, or 995, is a bar to any other prosecution for the same offense if it is a felony... and the action has been previously terminated pursuant to this chapter....”
Section 1387.1 provides: “(a) Where an offense is a violent felony, as defined in Section 667.5 and the prosecution has had two prior dismissals, as defined in Section 1387, the people shall be permitted one additional opportunity to refile charges where either of the prior dismissals under Section 1387 [was] due solely to excusable neglect....”
On May 5, 2009, defendant entered a guilty plea to one count of assault with a semiautomatic firearm and one count of receiving stolen property. The plea was entered with the understanding that the court would sign a certificate of probable cause to allow defendant to appeal the issues of whether the court erred in (1) allowing the filing of a third complaint in this matter under section 1387.1, (2) charging a weapon use enhancement pursuant to section 12022.53, subdivision (b), (3) denying the motion to suppress, and (4) denying his right to a speedy preliminary hearing.
On June 5, 2009, the court sentenced defendant to the term of five years eight months in state prison. Defendant timely filed a notice of appeal and a request for a certificate of probable cause. The court issued the certificate of probable cause on July 30, 2009, certifying the agreed upon issues.
II. DISCUSSION
Defendant contends that he must be allowed to withdraw his plea because it was induced by the promise that he would be able to appeal the issue of whether the trial court erred by denying his section 995 motion based on a violation of his right to a speedy preliminary hearing. Because the issue of whether the court should have dismissed the case due to a violation of defendant’s right to a speedy preliminary hearing under section 859b is not cognizable on appeal (People v. Perez (1985) 172 Cal.App.3d 806, 809), defendant’s plea bargain was based on an illusory promise (People v. Hollins (1993) 15 Cal.App.4th 567, 574-575 (Hollins)). The issuance of a certificate of probable cause does not make cognizable those issues which are not reviewable after a plea of guilty. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896.)
As the Attorney General concedes, the proper remedy here is to remand the matter to allow defendant the opportunity to withdraw his guilty plea if he wishes to do so. (Hollins, supra, 15 Cal.App.4th at pp. 574-575; 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 Penal Code section 995, notwithstanding the trial court’s promise to the contrary. [Citations.]’ [Citation.] ‘The promise was illusory and therefore was an improper inducement which voids the plea. [Citation.] We recognize [defendant] should be given an opportunity to reevaluate his guilty plea and withdraw that plea and proceed to trial if he so desires. [Citations.]’ ” (Hollins, supra, 15 Cal.App.4th at pp. 574-575.)
III. DISPOSITION
The judgment is reversed and the matter is remanded to the superior court to allow defendant the opportunity to withdraw his plea. Should he fail to do so within 30 days of the filing of the remittitur, the judgment is affirmed.
We concur: REARDON, Acting P.J., SEPULVEDA, J.