Summary
In People v. Langston, 2009 WL 245025 (Cal.App. 3 Dist. Aug. 10, 2009), the Court of Appeal found that plaintiff's 2008 criminal conviction must be reversed, and plaintiff be allowed to withdraw his plea inasmuch as the trial court promised plaintiff he could appeal issues that were not cognizable on appeal.
Summary of this case from Langston v. HartleyOpinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Super. Ct. No. 07F09116
RAYE, Acting P. J.Defendant Walter Shane Langston appeals following his plea of no contest to residential burglary (Pen. Code, § 459), vehicle theft (Veh. Code, § 10851, subd. (a)), possession of a stolen vehicle (Pen. Code, § 496d, subd. (a)), and misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)(1)). Defendant contends he must be allowed to withdraw his plea as he was induced to enter the plea by a promise from the trial court that he could appeal issues that are not cognizable on appeal. We agree and will reverse the judgment to afford defendant the opportunity to withdraw his plea.
All further statutory references are to the Penal Code.
PROCEDURAL AND FACTUAL BACKGROUND
The substantive facts underlying the offenses are irrelevant to the issues on appeal and are therefore not recounted here.
Defendant was charged with residential burglary, vehicle theft, possession of a stolen vehicle, and misdemeanor resisting a peace officer. It was further alleged that defendant had a prior residential burglary conviction that was a serious felony and a “strike.” In addition, it was alleged defendant had served three prior prison terms.
Trial was set for April 29, 2008. On that date, defendant made a Faretta motion, which was granted, and the trial was continued to May 1. Jury selection was continued to May 5.
Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta).
On May 5 defendant submitted a motion to continue his jury trial and a motion to suppress. On May 7 the court denied defendant’s motion to continue the jury trial. As part of his motion to continue the trial, defendant also made a motion under section 825, contending he was being “illegally detained” because charges had been dismissed and refiled. Following an evidentiary hearing, the motion to suppress was also denied.
Section 825 provides, in pertinent part: “(a)(1) Except as provided in paragraph (2), the defendant shall in all cases be taken before the magistrate without unnecessary delay, and, in any event, within 48 hours after his or her arrest, excluding Sundays and holidays. [¶] (2) When the 48 hours prescribed by paragraph (1) expire at a time when the court in which the magistrate is sitting is not in session, that time shall be extended to include the duration of the next court session on the judicial day immediately following. If the 48-hour period expires at a time when the court in which the magistrate is sitting is in session, the arraignment may take place at any time during that session. However, when the defendant’s arrest occurs on a Wednesday after the conclusion of the day’s court session, and if the Wednesday is not a court holiday, the defendant shall be taken before the magistrate not later than the following Friday, if the Friday is not a court holiday.”
On May 8 defendant advised the court he wanted to enter a plea of guilty or no contest to the charges. Defendant was informed that if he accepted the plea, he would be sentenced to 14 years 4 months in prison. Defendant was also advised that if he went to trial and was convicted on all the charges, he was facing a sentence of at least 16 years 4 months and as much as 21 years 4 months. Defendant indicated that based on the proposed reduction in his sentence and “with the exception of the condition to appeal,” he was willing to plead guilty. As the plea discussions continued, defendant made clear that the reduction in his sentence was a significant consideration in his accepting the plea.
Defendant also made clear he would not enter the plea unless he could appeal the denial of his motion to suppress, the denial of his section 825 motion, and the denial of his request for a continuance for further investigation. The court repeatedly assured defendant he could appeal on all of those grounds. In concluding the plea discussion, the court also stated, “I have indicated to [defendant] that I would sign a certificate of probable cause for an appeal from the denial of his [section] 1538.5 [motion], and from some argument that he has about the arrest date on this matter [the section 825 issue]. [¶]... [¶] And the denial of his continuance.”
Defendant was sentenced to state prison for 14 years 4 months. He timely filed a notice of appeal, and his certificate of probable cause was granted.
DISCUSSION
Defendant contends he must be allowed to withdraw his plea because it was induced by the trial court’s promise that he would receive appellate review of matters not cognizable on appeal. The People counter that the assurances by the court that defendant could appeal particular issues were not the impetus for his plea; rather, his reduced sentence was. Based on our review of the record, we believe the court’s promises regarding defendant’s appellate rights were a significant factor in his decision to enter a plea. Accordingly, we agree with defendant that he must be given the opportunity to withdraw his plea.
“Other than search and seizure issues specifically reviewable under section 1538.5, subdivision (m), all errors arising prior to entry of plea of guilty or nolo contendere are waived by the plea, except those based on ‘reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings;...’ [Citations.]” (People v. Shults (1984) 151 Cal.App.3d714, 718-719.) The parties and the trial court cannot, by an agreement for issuance of a certificate of probable cause, expand the jurisdiction of the appellate court and make cognizable on appeal an issue that has been waived by a plea of guilty or no contest. (People v. Kaanehe (1977) 19 Cal.3d 1, 9 (Kaanehe); People v. DeVaughn (1977) 18 Cal.3d 889, 895-896 (DeVaughn).) Furthermore, “[o]btaining a certificate of probable cause does not make cognizable those issues which have been waived by a plea of guilty.” (Kaanehe, supra, 19 Cal.3d at p. 9.)
Where an issue does not survive a guilty or no contest plea, a trial court’s acquiescence or representation that an issue is appealable does not confer appellate jurisdiction. (People v. Hernandez (1992) 6 Cal.App.4th 1355, 1361.) However, a claim that a plea was improperly induced challenges the legality of the proceedings resulting in the plea and is cognizable on appeal. (§ 1237.5; DeVaughn, supra, 18 Cal.3d at p. 896.) If a defendant enters a plea based on the trial court’s misrepresentation, he must be given the opportunity to withdraw the plea and proceed to trial. (People v. Truman (1992) 6 Cal.App.4th 1816, 1820-1821.)
Here, the court assured defendant it would issue a certificate of probable cause that would allow him to appeal the following three issues: the denial of his motion to suppress, the denial of his motion to continue, and the denial of his section 825 motion. The court’s assurances were improper.
The denial of the motion to suppress does not require a certificate of probable cause. Thus, defendant gained nothing by way of the promised certificate of probable cause as to this issue.
The denial of a motion to continue the trial following a plea is not cognizable on appeal. (Kaanehe, supra, 19 Cal.3d at p. 9.) The issuance of a certificate of probable cause on that point does not make it cognizable.
There is no authority directly addressing the appealability of a denial of a section 825 motion following a guilty plea. However, a section 825 motion addressing the timing of a defendant’s arraignment raises an irregularity in the proceedings but would not preclude a conviction. (See People v. Hughes (2002) 27 Cal.4th 287, 325-326; People v. Moore (1970) 13 Cal.App.3d424, 436-437.) Accordingly, it is the type of motion that is waived by a guilty plea. The issuance of a certificate of probable cause would not make this issue cognizable on appeal. Thus, on the latter two points, the trial court’s promise of appellate rights was illusory. It “was improper for the trial court to approve the negotiated plea bargain purporting to provide the otherwise illusory right of appeal” (People v. Lee (1980) 100 Cal.App.3d715, 718) as to these particular issues.
Furthermore, contrary to the People’s claim, our review of the record does not support the contention that the reduced sentence was defendant’s primary reason for entering into this plea. The record makes clear there were two reasons defendant chose to enter the plea: the reduced sentence and the repeated assurances he could appeal on three particular issues. Both of these reasons are discussed throughout the lengthy plea proceedings. Neither is more prominent than the other. What is clear from the record is that defendant was extremely concerned about his ability to preserve his appeal rights on these particular issues. Defendant’s concern about preserving these rights was so prominent in the discussion that after the plea had been taken and defendant sentenced, the court again felt compelled to reassure defendant he would sign a certificate of probable cause as to the three “preserved” issues for appeal. On this record, we cannot say that in the absence of the court’s assurances as to defendant’s appellate rights he would have entered the plea.
We are satisfied that the record supports defendant’s contention that his plea was, at least in part, induced by the misrepresentation of his appellate rights. Accordingly, “the judgment[] must be reversed because defendant[’s] plea[] [was] induced by misrepresentations of a fundamental nature.” (DeVaughn, supra, 18 Cal.3d at p. 896, fn. omitted.) Defendant must be given the opportunity to withdraw his plea and proceed to trial.
DISPOSITION
The judgment is reversed and the cause remanded to the trial court. Upon motion by defendant made within 30 days of the date the remittitur is filed in the trial court, the court shall vacate defendant’s no contest plea. If defendant does not move to withdraw his plea, the trial court shall reinstate the judgment.
We concur: BUTZ , J., CANTIL-SAKAUYE , J.