P. v. Jacobs
Filed 4/24/13 P. v. Jacobs CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
SARAH MARIE JACOBS,
Defendant and
Appellant.
F064685
(Super.
Ct. No. CRF35556)
THE COURT
name="_ftnref1" title="">*
APPEAL
from a judgment of the Superior Court
of
County. Eric L.
DuTemple, Judge.
Carol
Foster, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne
LeMon, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
Defendant
Sarah Marie Jacobs pled guilty to one count of
Code, § 11360, subd. (a)) and one count of
and ordered to serve four months in the county jail in accordance with her
plea. Defendant contends and respondent
concedes that she must be allowed to withdraw her plea as unenforceable; it was
conditioned upon her preserving the right
to appeal a pretrial ruling by the trial court. We find defendant’s plea was induced by an
unenforceable promise and, therefore, she is entitled to withdraw her plea.
PROCEDURAL AND FACTUAL BACKGROUND
On August 10, 2011, defendant was
charged in an amended information with two counts of marijuana sales and one
count of possessing marijuana for sale.
The charges were based upon defendant’s operation of Alternative Natural
Solutions, a medical marijuana dispensary.
On February 27, 2012,
at a pretrial hearing, defendant entered into a negotiated disposition of the
case. The following exchange took place:
“[Defense Counsel]: [Defendant] will plead guilty to Counts I and
II. And for that plea, she’ll receive
five years felony probation and county lid.
The Court also gave an indication of a nine-month cap.
“In
addition, [defendant] will not be waiving her right to an appeal, and the
District Attorney and I will set some facts on the record. And also, I believe [the prosecutor] will be
filing his motion regarding jury instructions.
“[Prosecutor]: Introduction of evidence motion in limine.
“The Court: Motion in limine for purposes of preserving
the right to appeal?
“[Defense Counsel]: Yes.â€
The parties
went on to provide a statement of facts to the court, and the People filed a
motion to exclude medical marijuana evidence.
After reviewing the motion and the stipulated facts provided by the
parties, the trial court granted the People’s motion in limine. The court explained that it’s ruling would
allow defendant “to appeal this Court’s ruling on that motion upon an entry of
plea.†Defendant filled out and signed a
change of plea form in connection with her plea. The change of plea form contained a box
stating “Waiver of Appeal: I understand that I will be waiving my right
to appeal and I will not be able to appeal from this Court’s sentence based on
the plea that I enter into in this matter.â€
Consistent with the discussion of appellate right with the parties, the
plea form has the notation “N/A†written into the boxes next to the waiver of appellate
rights.
defendant’s plea and sentenced her in accordance with that plea. Prior to filing this appeal, defendant
obtained a certificate of probable cause in accordance with Penal Code section
1237.5.
DISCUSSION
Defendant’s
Plea Was Improperly Induced by an Unenforceable Promise
It is well
settled that only limited issues are cognizable on appeal following a guilty
plea.
“A guilty plea admits every element of the charged
offense and constitutes a conviction [citations], and consequently issues that
concern the determination of guilt or innocence are not cognizable. [Citations.]
Instead, appellate review is limited to issues that concern the
‘jurisdiction of the court or the legality of the proceedings, including the
constitutional validity of the plea.’
[Citations.]†(
fn. omitted.)
Indeed, Penal Code section 1237.5, which governs the right
to appeal following a guilty plea, provides that a defendant may not seek an
appeal from a guilty plea unless “(a) The defendant has filed with the trial
court a written statement, executed under oath or penalty of perjury showing
reasonable constitutional, jurisdictional, or other grounds going to the
legality of the proceedings,†and “(b) The trial court has executed and filed a
certificate of probable cause for such appeal with the clerk of the
court.†(Ibid.)
A pretrial
ruling regarding the applicability of defenses at trial is an issue that goes
to guilt or innocence, and therefore is not reviewable on appeal. (People
v. Shults (1984) 151 Cal.App.3d 714, 718-720.) The issuance of a certificate of probable
cause does not operate to expand the scope of review to include a noncognizable
issue. (People v. Hoffard (1995) 10 Cal.4th 1170, 1178;
9.) Thus, the issue of whether the trial
court erred by granting the People’s motion to exclude evidence relating to
medical marijuana may not be reviewed on appeal.
Both
parties concede that the issue sought to be preserved in the trial court was
indeed waived by the entry of the plea.
The question then becomes whether defendant’s plea was premised upon her
right to appeal the trial court’s decision.
“Where a guilty plea … has been improperly induced by unenforceable
promises that issues have been preserved for appeal the defendant … is entitled
to an opportunity to withdraw the plea.â€
(Ricki J. v. Superior Court
(2005) 128 Cal.App.4th 783, 792.) It is
apparent from a plain reading of the hearing on the change of plea that
defendant’s plea was, in fact, induced by the promise that she would be able to
appeal the ruling. Consequently, she is
now entitled to withdraw her plea if she so chooses. (People
v. DeVaughn (1977) 18 Cal.3d 889, 896; People
v. Hollins (1993) 15 Cal.App.4th 567, 574.)
DISPOSITION
The case is
remanded to the trial court with instructions to allow defendant an opportunity
to withdraw her plea. If defendant fails
to withdraw the plea within 60 days of the remittitur, the judgment is
affirmed.
name="_ftn1" title="">*Before
Kane, Acting P.J., Franson, J. and Peña, J.
name="_ftn2" title="">[1]Defendant
may have initialed the box originally, but those initials appear to be marked
out.
