P. v. DeJongh
Filed 1/23/14 P. v. DeJongh CA2/4
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff
and Respondent,
v.
JENNIFER DeJONGH and
GEORGE DeJONGH,
Defendants
and Appellants.
B245146
(Los Angeles County
Super. Ct. No. BA332537)
APPEALS from judgments of the
Robert J. Perry, Judge. Reversed and
remanded for further proceedings.
The Severo Law Firm and Michael V.
Severo for Defendants and Appellants.
Kamala D. Harris,
Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Eric
E. Reynolds and Allison H. Chung, Deputy Attorneys General, for Plaintiff and
Respondent.
Pursuant to a plea bargain negotiated by
counsel, defendants Jennifer DeJongh and George DeJongh pled nolo contendere to
several counts of child custody deprivation.
(§ 278.5, subd. (a).)
name="_ftnref1" title="">[1] The trial court, as part of the plea bargain,
issued a certificate of probable cause
to permit defendants to appeal its denial of their common law motion to
dismiss. In this appeal, defendants
attempt to pursue that contention. We do
not reach its merits because we conclude that the contention does not survive their
pleas. Because defendants’ pleas were,
in part, based upon the trial court’s
illusory promise that they could prosecute this appeal, we reverse the
judgments and remand the case to the trial court to permit defendants to
withdraw their pleas.
FACTUAL AND
PROCEDURAL BACKGROUND
The People jointly charged each
defendant with three counts of child custody deprivation based upon the
following facts.
Defendant Jennifer DeJongh is the
mother of three minor children. She and
the children’s father (Brian Miller, Sr.) entered into a settlement in the
family law court providing for visitation between the children and their paternal
grandparents. Defendant Jennifer DeJongh
failed to comply with the order. Instead,
she took the children to Mexico with her husband
defendant George DeJongh. Several years
later, defendants were arrested with the children at the United States-Mexican
border.
The theory of the prosecution’s case
is that defendants’ actions deprived the paternal grandparents of their visitation
rights. At the preliminary hearing,
defendants argued, among other things, that no crime had been committed because
the order from the family law court had conferred no such right on the paternal
grandparents. The magistrate rejected
all defense arguments and held defendants to answer.
In the superior court, defendants,
citing section 995, moved to dismiss the information on the basis that the
evidence was insufficient as a matter of law because the family law court order
did not give the paternal grandparents any right of visitation. Judge George Lomeli denied the motion.
The case was assigned to Judge Robert
J. Perry for trial. Defendants moved to
exclude the testimony of the paternal grandparents on the basis that they had
acquired no visitation rights from the family law court order.
At the hearing on the motion, the
parties agreed with Judge Perry that the focus of the defense motion was
“whether or not the People have brought a valid charge based on the facts of the case.â€
(Italics added.) Later on, Judge
Perry stated: “I really think your
motion to exclude should be styled as a motion to dismiss or a non-statutory
motion to dismiss.†Defense counsel
agreed with the court’s characterization of his motion. Toward the end of the hearing, Judge Perry
reiterated: “[C]ounsel and I briefly
conferred in chambers off the record and we’re going to go forward at this time
with the defense motion for – I called it dismissal of the charges,
essentially, based on the record and other stipulated facts that were agreed to
in our discussion.â€
In denying the motion, Judge Perry
explained: “I think under these facts
that the [defense] case is not made to dismiss the matter. . . . Under these facts it’s clear that [the]
paternal grandparents were selected by agreement by the two parties [defendant
Jennifer DeJongh and Brian Miller, Sr.].
I do think that a right of visitation was conferred on them based on the
facts of this case, and I do deny the motion to dismiss.â€
Two weeks later, defendants appeared
before Judge Lance A. Ito. The parties
explained that they had reached a disposition before Judge Perry. Defense counsel told Judge Ito that the
disposition included the provision that the trial court would sign a
certificate of probable cause permitting defendants to appeal. He stated: “[T]he issue on appeal is we made motions to
dismiss both statutory and non-statutory based on the . . . question presented
that . . . there was no right of
visitation as a matter of law granted to the [paternal] grandparents in the
order . . . of the family law court, and as a consequence, there is no
crime.â€
In taking defendants’ pleas, Judge Ito
advised them that “part of the plea disposition is that you will be allowed to
appeal this particular legal issue.†He
placed defendants on formal probation for five years on various terms and
conditions.
Judge Ito subsequently signed a
certificate of probable cause.
Defendants, relying upon that document, filed a joint notice of appeal.
DISCUSSION
Defendants’ joint briefs challenge the
denial of their motion to dismiss. They
argue that “the paternal grandparents did not have a cognizable right of
visitation†so that defendants “did not commit a crime as to them.†The Attorney General responds to this claim
on the merits. We cannot and do not
reach the merits of the contention because it does not survive defendants’ nolo
contendere pleas.
title="">[2]
“‘Issues cognizable on an appeal
following a guilty plea are limited to issues based on “reasonable
constitutional, jurisdictional, or other grounds going to the legality of the
proceedings†resulting in the plea.’ [Citation.] By pleading guilty, a defendant impliedly
admits ‘that the People have established or can establish every element of the
charged offense, thus obviating the need for the People to come forward with
(People v. Roper (1983) 144
Cal.App.3d 1033, 1038-1039.) This means
that by pleading nolo contendere,
name="_ftnref3" title="">[3]
defendants implicitly conceded that the People’s theory that the paternal
grandparents had protectable visitation rights with which they criminally interfered
was legally sound and factually sufficient.
Consequently, defendants’ contention that the trial court erroneously
denied their common law motion to dismiss does not survive their pleas. (Id.
at p. 1039 [denial of a section 995 motion does not survive a guilty plea
unless the motion raised a Fourth Amendment claim].)
That the trial court issued defendants
a certificate of probable cause does not alter our conclusion. “[T]he trial court’s acquiescence in a
defendant’s expressed intention to appeal is wholly ineffective to confer
jurisdiction on the appellate court if the issue proposed to be raised is in
fact not cognizable on appeal.
‘Obtaining a certificate of probable cause does not make cognizable
those issues which have been waived by a plea of guilty.’ [Citations.]â€
(People v. Hernandez (1992) 6
Cal.App.4th 1355, 1361.)
Because defendants’ contention is not
reviewable on appeal, the negotiated plea bargain “purporting to provide the
otherwise illusory right of appeal†is invalid.
(People v. Lee (1980) 100
Cal.App.3d 715, 718.) The remedy is to
reverse the judgments and remand the cause to the trial court to give defendants
a reasonable opportunity to withdraw their pleas and proceed anew. (Id.
at pp. 718-719.)
The
judgments are reversed and the cause remanded to the trial court. If defendants move to withdraw their pleas
within 30 days of the finality of this decision, the superior court is directed
to vacate the pleas and reinstate the information for further proceedings. If defendants choose not to withdraw their
pleas within the 30-day period, the superior court is directed to reinstate the
judgments. (People v. Bonwit (1985) 173 Cal.App.3d 828, 834.)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
J.
We concur:
EPSTEIN, P. J. EDMON, J.*
*Judge of the Los Angeles Superior Court,
assigned by the Chief Justice pursuant
to article VI,
section 6 of the California Constitution.
statutory references are to the Penal Code.
to the hearing on this appeal, we sent the parties a letter directing them to
address at oral argument the following two issues: (1) was the defense contention cognizable on
appeal in light of defendants’ pleas; and (2) if not, should the case be
remanded to the superior court to permit them to withdraw their pleas? At oral argument, defense counsel conceded
that the contention was not cognizable and asked that we remand the case to the
trial court to permit his clients to withdraw their pleas. The Attorney General agreed with this
resolution of the matter. In addition,
both counsel agreed that letter briefing on these points was not necessary.
