Opinion
C080487
05-30-2017
THE PEOPLE, Plaintiff and Respondent, v. DONYA SHANNON CONNER, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF131446 )
Defendant Donya Shannon Conner pleaded no contest to burglary and admitted a prior Nevada burglary conviction was a serious or violent felony under California law. On appeal, he contends there was insufficient evidence to support the true finding that the Nevada conviction is a serious felony under California law. While taking the plea, the trial court incorrectly indicated that defendant would retain the right to challenge this issue on appeal. Because defendant's plea was improperly induced by the trial court's assertion that he could challenge on appeal whether his foreign conviction was a strike, defendant must be given an opportunity to withdraw his plea. We reverse the judgment and remand with directions to give defendant an opportunity to withdraw his plea.
FACTS AND PROCEEDINGS
An information charged defendant with committing first degree burglary (Pen. Code, § 459; unless otherwise set forth, statutory references that follow are to the Penal Code) and alleged he had previously been convicted of a strike prior (§§ 667, subd. (d), 1192) and a serious felony prior (§ 667, subd. (a)), specifically a Nevada conviction for burglary (NRS § 205.060). Defendant filed a motion to strike the strike enhancement arguing the Nevada burglary conviction did not qualify as a strike under California law. The People acknowledged the Nevada conviction did not facially qualify as a strike in California, but submitted the Nevada information and plea memorandum, which they argued demonstrated defendant had burglarized J.P.'s house, thereby demonstrating defendant had burglarized an inhabited dwelling. They argued this qualified the conviction as a strike under California law. The trial court found the motion premature and reserved ruling on the issue.
Approximately two weeks later, defense counsel indicated defendant intended to "plead to the sheet." At the time, defendant was serving a prison term out of Los Angeles County and had one day left on his term. He wanted the plea entered so he could get the "benefit of the sentencing law that allows concurrent and the principal subordinate scheme."
Defendant's plea declaration form specifically indicates he was not waiving his appellate rights and states, "I agree to enter a no contest plea to Count 1, a felony violation of PC 459, burglary in the 1st degree. I understand I must also admit case enhancements 1a + 1b as the Court has declined to rule on my motion that the record of conviction is insufficient to support either enhancement. I will continue to argue this issue at sentencing + I am not giving up any appeal rights in this case." The People did not concur in the plea because defendant would not waive his appeal rights. Defense counsel did not concur in the plea because she did not agree the Nevada conviction was a strike. The trial court indicated it would allow defendant to "preserve all appellate rights on all motions filed." Defendant pleaded no contest to the burglary charge and admitted the prior strike and prior serious felony conviction enhancement allegations, while attempting to preserve the issue of whether the Nevada conviction was in fact a strike and a serious felony. The trial court repeatedly indicated to defendant that his appellate rights on the issue of whether the prior conviction as a strike were preserved.
During the subsequent sentencing arguments the trial court indicated that although the record on the strike was uncertain in terms of establishing the strike, the People indicated they had requested additional components of the record of conviction, including a plea transcript. The trial court then indicated it would not accept the plea based on defendant contesting whether the conviction was a strike in California. The trial court felt because of this it did not provide an adequate factual basis to accept the plea. Defense counsel conferred further with defendant. Defendant indicated he wanted to go forward with the plea, was admitting the enhancements, and had signed the plea form. Counsel indicated any additional comments she had would be with respect to a Romero (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) motion to strike the strike. The trial court then stated it would accept the admission on the enhancement as an Alford plea (North Carolina v. Alford (1970) 400 U.S. 25 (Alford)) in which defendant sought to enter a plea but maintained his innocence for sentencing and tactical reasons. The trial court accepted the plea and sentenced defendant to term of two years on the burglary count, doubled pursuant to the prior strike, plus five years for the prior serious felony. Defendant's sentence on the Los Angeles County robbery was a consecutive one year, one-third the midterm, for an aggregate sentence of 10 years.
DISCUSSION
Defendant contends there is insufficient evidence to support the finding that his Nevada burglary conviction qualified as a strike or a serious felony conviction in California. The People argue the matter is not cognizable on appeal because defendant's plea precludes him from challenging the sufficiency of the evidence on appeal. The People are correct, as far as they go. However, it is also plain from the record that in entering his plea, defendant relied on the trial court's representations that he could appeal the sufficiency of the evidence supporting the enhancements. This was error.
Defendant argues the designation of his plea as an "Alford" plea makes his challenge to the sufficiency of the evidence cognizable on appeal. "In Alford, the Supreme Court held, inter alia, that it was constitutionally permissible for the court, where a factual basis for the charge is otherwise shown, to accept a defendant's plea of guilty along with his or her contradictory protestation of innocence." (People v. Roberts (2011) 195 Cal.App.4th 1106, 1121-1122.) Defendant cites no authority, and independent research has revealed none, which holds when a defendant enters an Alford plea, he may then challenge the sufficiency of the evidence on appeal. Such a holding would undercut the plea process altogether. Resolving cases through pleas and admissions assists the efficient administration of justice, reduces unnecessary costs upon taxpayers, and reduces the harassment and trauma of avoidable trials to both defendants and victims. (See People v. Orin (1975) 13 Cal.3d 937, 949.)
A defendant's guilty plea or admission of a sentence enhancement allegation is deemed to constitute a judicial admission of every element of the offense charged and severely restricts the defendant's right to appeal from the ensuing judgment. (People v. Thomas (1986) 41 Cal.3d 837, 844; People v. Chadd (1981) 28 Cal.3d 739, 748; People v. DeVaughn (1977) 18 Cal.3d 889, 895-896.) "[A] defendant 'cannot admit the sufficiency of the evidence by pleading guilty and then question the evidence by an appeal under section 1237.5. . . .' " (People v. Padfield (1982) 136 Cal.App.3d 218, 227.)
The trial court's issuance of a certificate of probable cause approving an appeal challenging the admission of the enhancement allegations does not help defendant. "A certificate of probable cause cannot render reviewable a claim that is otherwise not cognizable on appeal from a guilty plea." (People v. Collins (2004) 115 Cal.App.4th 137, 149; see People v. Hunter (2002) 100 Cal.App.4th 37, 41-42; People v. Robinson (1997) 56 Cal.App.4th 363, 368-369.)
However, defendant is entitled to review of the plea entered in the present case. A plea or admission which is improperly induced by a trial court's misrepresentation purporting to preserve for appeal issues that were waived by such plea or admission may be attacked on appeal as invalid. (People v. DeVaughn, supra, 18 Cal.3d at p. 896.) Where the trial court's advice is an inducement for the admission and the advice was incorrect, defendant is entitled to have the admission and the enhancement set aside. (People v. Bowie (1992) 11 Cal.App.4th 1263, 1266-1267.) The record on appeal here clearly demonstrates defendant entered his plea with the understanding from the trial court's explicit representations that he could appeal the sufficiency of the evidence supporting the prior conviction enhancement allegations and therefore encompasses the circumstances surrounding the entry of his plea. We therefore examine the entry of the 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).) Defendant's plea and admissions preclude him from seeking appellate review of the sufficiency of the evidence, nothwithstanding the trial court's assurances to the contrary. But," '[t]he 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.]' (People v. Bonwit (1985) 173 Cal.App.3d 828, 833.)" People v. Hollins (1993) 15 Cal.App.4th 567, 574-575.)
The record before us demonstrates that defendant's plea was induced by the trial court's representation that he would have the right to appeal the validity of the enhancement allegations, specifically whether the evidence established the Nevada burglary conviction qualified as a strike and a serious felony. Defendant's admission of the enhancement allegations, however, precludes him from seeking review of their validity, notwithstanding the representations made to him as part of the plea agreement. (People v. Truman (1992) 6 Cal.App.4th 1816, 1820-1821.) The illusory promise of the right to appeal the sufficiency of the evidence supporting the prior conviction enhancement allegations " 'voids the plea.' " (Hollins, supra, 15 Cal.App.4th at p. 575.) Defendant must therefore be given the " 'opportunity to reevaluate his guilty plea and withdraw that plea and proceed to trial if he so desires.' " (People v. Truman, supra, 6 Cal.App.4th at p. 1821; see Hollins, supra, 15 Cal.App.4th at p. 575.)
DISPOSITION
The judgment is reversed with directions to permit appellant to withdraw his plea within 30 days of the finality of this opinion. If appellant does not make a motion to withdraw his plea, the trial court is directed to reinstate the original judgment. (People v. Miller (1983) 33 Cal.3d 545, 556.)
HULL, Acting P. J. We concur: ROBIE, J. MURRAY, J.