Opinion
C083229
02-07-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES WILLIAM JACOBS, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STK-CR-MI-2015-9239)
Defendant James William Jacobs was convicted pursuant to a plea to misdemeanor child endangerment. (Pen. Code, § 273a, subd. (b).) He was placed on probation subject to various conditions. On appeal in the appellate division of the superior court, defendant claimed the record did not demonstrate he entered a valid plea. The appellate division concluded it lacked jurisdiction to address defendant's claim because he had not filed a timely motion to withdraw the plea. (See § 1018.)
Undesignated statutory references are to the Penal Code.
We granted defendant's timely petition for transfer. As we shall explain, a motion to withdraw the plea is not a prerequisite to appellate consideration of defendant's claim. Accordingly, we shall remand the matter to the appellate division.
PROCEDURAL BACKGROUND
A. Plea and Appellate Division Proceedings
Defendant entered a no contest plea in this case on August 6, 2015, and in the same proceeding, he was placed on probation subject to various terms and conditions. He filed a timely notice of appeal shortly thereafter, on August 25, 2015. Because the underlying case concerns a misdemeanor, the appeal was taken to the appellate division of the superior court.
Defendant filed subsequent notices of appeal in the matter that are not at issue here. Before the appellate division, the People argued that a later notice of abandonment defendant filed in 2016 applied to the August 2015 notice of appeal. But defendant correctly observed the notice of abandonment referred specifically to one of the later filed notices of appeal. It is apparent from the appellate division's opinion that it agreed with defendant that the August 2015 notice of appeal was not abandoned by defendant.
In his opening brief, defendant observed the plea colloquy was not recorded pursuant to a local rule because the underlying case involved a misdemeanor, the hearing at issue was not contested, and the parties had not requested it be recorded. Defendant emphasized, however, that documentation concerning the plea included the clerk's minutes memorializing the plea. The minute order uses a standard form in which a box is checked indicating defendant's written plea form was "signed, filed & incorporated herein by reference." But the plea form, which is also in the record, appears incomplete. It was not signed by either defendant, his counsel, or the court. Further, some of the boxes on the form are not initialed, including one that would indicate the decision to plead guilty was made "freely and voluntarily." Those boxes that were initialed, defendant argued, were essentially meaningless under these circumstances and did not establish the necessary reliable showing that defendant understood and waived his constitutional rights. Defendant argued, "In viewing the record in its totality, it is abundantly clear there is no affirmative showing that [defendant's] plea was entered into voluntarily and intelligently."
Defendant's argument also included an argument about denial of a motion to suppress, which the appellate division addressed on the merits. It is not at issue here.
In its opinion, the appellate division concluded without citation to authority: "As for [defendant's] argument that the taking of his no contest plea was deficient, this Court lacks jurisdiction to consider [defendant's] argument in the first instance. [Defendant] must first timely file a motion to withdraw his guilty plea and have it heard and decided by the trial court. He failed to do so." The appellate division noted that defendant did file some motions to withdraw the plea that were untimely and not cognizable on appeal. (See § 1018.) The appellate division further observed the trial court had lacked jurisdiction to hear defendant's later motions to withdraw his plea because the appeal was pending and also because defendant had filed the motions himself although he had been represented by counsel.
B. Petition for Transfer
The appellate division issued its opinion on September 8, 2016. Defendant filed a timely petition for rehearing or, in the alternative, application for certification of transfer with the appellate division. (See Cal. Rules of Court, rule 8.1005(b).) Following denial of rehearing and defendant's application, defendant filed a timely petition for transfer in this court on October 21, 2016. (Rule 8.1006.)
Further rule references are to the California Rules of Court.
This court requested the People to answer the petition. After reviewing the answer, this court granted the petition for transfer. In the order granting transfer, this court limited the issue to whether the appellate division of the superior court erred in declining to address defendant's argument concerning the validity of the plea in the absence of a valid motion to withdraw the plea. (See rule 8.1012(e).) This court explained that it would consider defendant's petition for transfer and the People's answer to be the parties' briefs, but that it would also entertain requests for supplemental briefing. Neither side submitted such an application for further briefing within the time provided by the court.
In the petition for transfer, defendant also argued the appellate division decided the issue without affording an opportunity for supplemental briefing pursuant to Government Code section 68081. --------
DISCUSSION
Defendant claims the appellate division erred in failing to address the claim that the plea was deficient. In felony cases, challenges to the validity of a plea may be made on appeal, provided a defendant first obtains a certificate of probable cause. (See § 1237.5.) There is no similar requirement in a misdemeanor case, as the People concede. (See § 1466; People v. Woods (1978) 84 Cal.App.3d 149, 154.)
First and foremost, the appellate division's conclusion that it lacked jurisdiction to address defendant's claim on the current record is inconsistent with state Court of Appeal and Supreme Court cases that have considered, in a variety of contexts, challenges to the validity of a plea on direct appeal. (See, e.g., People v. Mosby (2004) 33 Cal.4th 353, 359-364 [explaining standard for reviewing record on direct appeal]; People v. Howard (1992) 1 Cal.4th 1132, 1174-1180 [same]; People v. Christian (2005) 125 Cal.App.4th 688, 693-698 [judgment reversed where record did not affirmatively show knowing and voluntary plea].) The People do not attempt to reconcile the many cases reviewing such claims on appeal, without reference to or regard for whether a motion to withdraw the plea was filed in the trial court. We perceive no basis for doing so.
The People instead argue that while the appellate division did in fact have "jurisdiction" in the fundamental sense to address defendant's arguments, its use of that term to explain its decision was imprecise. The People claim the appellate division's decision was actually predicated on forfeiture principles. In this respect, the People cite a case from this court, People v. Turner (2002) 96 Cal.App.4th 1409 (Turner). We find Turner to be inapplicable to the current matter and find no forfeiture in the current case.
The defendant in Turner claimed on appeal his plea was involuntary because of alleged misinformation in a parole agent's report, the falsity of which he claimed he was unaware at the time of his plea. (Turner, supra, 96 Cal.App.4th at p. 1412.) Defendant acknowledged that he learned of this information two days after his plea. (See id. at pp. 1412-1413.) Almost a month later, on the date originally set for sentencing, the defendant was granted a continuance so that he could file a motion to withdraw the plea. (Id. at pp. 1411-1412.) Three weeks later, sentencing was again postponed because the defendant still had not filed the motion. (Id. at p. 1412.) A month later, he was sentenced. (Ibid.) He never filed a motion to withdraw his plea in the trial court. (Ibid.) The Turner court concluded the claim was forfeited because the defendant in that case had ample opportunity to file a motion to withdraw per section 1018 before judgment. (Turner, at pp. 1412-1413.) The court emphasized, "The record demonstrates [the] defendant was aware of the circumstances that allegedly caused his plea to be involuntary some two days after entry of the plea and well before judgment, that [the] defendant thereafter obtained a continuance to allow him to file a motion to withdraw his plea, and that no such motion was ever made. In the circumstances, by failing to move to withdraw his plea in the trial court, [the] defendant has forfeited the claim on appeal that his plea was entered involuntarily." (Ibid.)
Turner's active conduct in the prejudgment context by seeking a continuance to file a motion to withdraw a plea, which was subsequently not filed despite awareness of the issue presented, distinguishes that case from the current one. In contrast to Turner, supra, 96 Cal.App.4th 1409, there was no opportunity in the current case for defendant to file a motion to withdraw his plea before defendant was placed on probation, triggering the time limitations for appeal. Further, the time for filing an appeal was limited as a defendant has only 30 days to appeal in a misdemeanor case. (Rule 8.853.)
Defendant also cites the general rule that the filing of a notice of appeal divested the trial court of jurisdiction. (See People v. Nelms (2008) 165 Cal.App.4th 1465, 1471-1472; People v. Alanis (2008) 158 Cal.App.4th 1467, 1476; Stuart v. Superior Court (1979) 94 Cal.App.3d 182; see also People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 797, fn. 4.) In fact, the appellate division cited the same rule as one of the reasons for concluding that it need not address defendant's subsequently filed motions to withdraw his plea. As defendant observes, the appellate division's position essentially makes unreviewable challenges to the validity of a plea in cases in which a defendant wishes to preserve the right to direct appeal because it places a defendant in the position of either: (1) filing a notice of appeal, thereby depriving the trial court of jurisdiction to consider a motion to withdraw the plea, or (2) attempting to file and fully resolve a motion to withdraw a plea before the 30-day time for appealing has lapsed.
We conclude that absent particular facts indicating forfeiture in the prejudgment context, as in Turner, a defendant who files an appeal preserves those challenges to the validity of the plea that are based on the record of the plea itself. The appellate division was required to address defendant's argument that the record of the plea, including the court's minute order and the plea form, did not affirmatively demonstrate a valid plea.
DISPOSITION
The judgment of the appellate division is reversed, and the matter is remanded with directions that the appellate division address defendant's argument that the record does not demonstrate a valid plea.
BUTZ, Acting P. J. We concur: MURRAY, J. HOCH, J.