Filed 3/7/18 P. v. Roman CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE LUIS ROMAN,

Defendant and Appellant.


E067504

(Super.Ct.No. 16CR010752)

OPINION


APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller, Judge. Reversed and remanded with directions.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
After a jury found defendant and appellant Jose Luis Roman guilty of driving or taking a vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a); count 1), and before trial on his prior conviction allegations, defendant entered into a negotiated plea agreement. As part of the plea agreement, defendant pled no contest to the vehicle theft offense as alleged in count 1, and admitted he had suffered one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). In exchange, the remaining allegations were dismissed, and defendant was promised he could appeal from any issues relating to his right to a speedy trial. Defendant was sentenced to a stipulated term of four years in state prison. Defendant subsequently appealed, and the trial court issued a certificate of probable cause as to the speedy trial claim. On appeal, defendant argues because the trial court gave him erroneous advice with respect to the appealability of his speedy trial right, he should be allowed to withdraw his guilty plea. Because the plea agreement cannot be carried out, the People concede the error. We agree, reverse and remand the matter to allow defendant the opportunity to withdraw his plea.
II
FACTUAL AND PROCEDURAL BACKGROUND
On March 15, 2016, San Bernardino County Deputy Sheriff Madril observed a white Ford Explorer with what appeared to be a tampered license plate. The reflective coating, which helps the automatic license plate reader recognize stolen vehicles, had been removed. Deputy Madril’s partner manually checked the Ford’s license plate number and discovered the Ford had been reported stolen a day or two prior.
Deputy Madril and his partner conducted a traffic stop of the Ford vehicle. They found defendant in the driver’s seat, and a female passenger. The driver’s window of the Ford was shattered, and there was glass on the floorboard inside of the vehicle and along the doorframe. Defendant told Deputy Madril that the Ford belonged to his “Uncle Jessie,” he knew that the Ford had been taken, he found the Ford, and he was returning it to his Uncle Jessie. The Ford was registered to Jesus Huerta. Deputy Madril also found two screwdrivers in the Ford: one in the vehicle’s center console and another in the dash. The vehicle’s ignition was “destroyed” in that the plastic housing for the key was gone and the metal part of the ignition was damaged. Deputy Madril inserted the screwdriver from the center console into the ignition and found that if he “cranked” the screwdriver long enough, the Ford started. Deputy Madril did not find keys for the Ford either on defendant or in the vehicle.
Maria Huerta testified at trial that, on March 14, 2016, as she was coming out of her house, she saw a man take her husband’s car. She found broken glass in the driveway, and her husband called the police. She stated that defendant was not her or her husband’s nephew, and that she did not recall meeting defendant. She did not give defendant permission to borrow the Ford, and asserted her husband does not lend the Ford to anyone.
Defendant testified in his defense. He admitted he was the person the police pulled over for driving the Huertas’ car, but denied stealing it. He claimed he was going to return the vehicle to the Huertas, but he was first going to get the vehicle’s broken window repaired and that is where he was headed when he was pulled over. Defendant also claimed that he knew Jesus Huerta, whom he referred to as “Uncle Jessie” because they had been neighbors in the past. Defendant further asserted that when he heard about Jesus’s car being stolen, he went to look for it and “found” the car only a few blocks away from Jesus’s home. Defendant also claimed that Jesus had given him a ride a couple of times in the car, and the ignition was damaged from being stolen on a prior occasion.
On August 30, 2016, an amended information was filed charging defendant with driving or taking a vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a); count 1) and receiving stolen property (§ 496d, subd. (a); count 2). The amended information also alleged that defendant had suffered one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and four prior prison terms (§ 667.5, subd. (b)).
Following trial, on October 13, 2016, a jury found defendant guilty of count 1. As instructed, based on the guilty verdict on count 1, the jury did not return a verdict on count 2. Defendant subsequently waived his right to a jury trial on his prior conviction allegations.
On October 18, 2016, prior to the bifurcated trial on the prior convictions, defendant entered into a negotiated plea agreement with the People. As part of the plea agreement, defendant agreed to plead no contest to count 1 and admit the prior strike conviction allegation. In exchange, the People promised to dismiss the remaining allegations, and agreed to a stipulated term of four years in state prison. In addition, defendant agreed to waive all appellate rights, with the exception of the right to raise a speedy trial claim on appeal. Defendant’s plea form specifically stated, “[d]efendant retains the right to appeal the issue of speedy trial violation. Waives the right to appeal all others.”
At the October 18, 2016 plea hearing, the right to appeal the denial of the speedy trial motion was reiterated. When going over the terms of the plea agreement, the trial court explained to defendant that as part of the plea, he was retaining his right to appeal “the issues of any supposed trial violations” and waiving his right to appeal all other issues. Defendant inquired as to what the court meant by “ ‘supposed trial violations.’ ” The court explained, “I don’t believe there was a speedy trial violation, but you are retaining your right to appeal any issue you believe exists involving any supposed trial violations.” The court further clarified, “I’m not saying there was a speedy trial violation. I’m simply saying you can appeal that issue.” Thereafter, the court repeated the plea agreement, stating, “[s]o what this plea agreement does, then, is settle all of the issues in this case—except your right to appeal a speedy trial violation . . . .” After the court explained defendant’s constitutional rights and the consequences of his plea and admission, defendant pled no contest to count 1 and admitted the prior strike allegation.
On November 4, 2016, defendant was sentenced in accordance with his plea agreement to four years (the middle term of two years, doubled to four years due to the prior strike) in state prison with 329 days of credit for time served.
On December 8, 2016, defendant filed a notice of appeal and a request for a certificate of probable cause. The trial court granted the certificate of probable cause as to the “speedy trial violation issue.”
III
DISCUSSION
Defendant contends his no contest plea was improperly induced by the promise that the violation of his speedy trial rights was preserved for appeal. The People agree, and so do we.
“ ‘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. [Citations.]’ [Citation.]” (People v. Hollins (1993) 15 Cal.App.4th 567, 574-575 (Hollins) [illusory promise of appealability of the denial of defendant’s section 995 motion was improper inducement for the plea].) “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. [Citations.]” (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896 (DeVaughn).) “Given the accused’s guilty plea, an extrajudicial statement relating to his guilt of a charged crime does not, by reason of a claim that it was involuntarily or improperly induced, raise an issue on appeal based on ‘constitutional, jurisdictional or other grounds going to the legality of the proceedings’ resulting in the plea.” (Id. at p. 896, fn. omitted.)
The parties and the trial court cannot, by their agreement, 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); DeVaughn, supra, 18 Cal.3d at pp. 895-896; People v. Coleman (1977) 72 Cal.App.3d 287, 292 (Coleman).) Moreover, “[t]he issuance of a certificate of probable cause pursuant to section 1237.5 does not operate to expand the grounds upon which an appeal may be taken as that section relates only to the ‘procedure in perfecting an appeal from a judgment based on a plea of guilty.’ [Citations.]” (DeVaughn, at p. 896; see Kaanehe, at p. 9 [“[o]btaining a certificate of probable cause does not make cognizable those issues which have been waived by a plea of guilty”].) “[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.” (People v. Hernandez (1992) 6 Cal.App.4th 1355, 1361 (Hernandez).)
Given defendant’s no contest plea, the issue of whether his speedy trial right was violated is not cognizable on appeal. As the People point out, the preferred method used to raise speedy trial challenges is through a petition for writ of mandate prior to the start of trial. (People v. Wilson (1963) 60 Cal.2d 139, 149.) A speedy trial claim may also be raised on appeal from a trial conviction. (Id. at pp. 150-151.) But, speedy trial claims may not be raised on appeal following a guilty plea––even with a certificate of probable cause. (Hernandez, supra, 6 Cal.App.4th at p. 1357 [as to statutory speedy trial right]; People v. Lee (1980) 100 Cal.App.3d 715, 717 [as to constitutional right to speedy trial].) Hence, the People’s and the trial court’s promise to defendant that he retained his right to appeal any speedy trial violation as part of his plea agreement was illusory.
Because defendant’s plea was induced by the People’s and the court’s misrepresentation, the judgment must be reversed and the matter must be remanded to allow defendant an opportunity to withdraw his plea. When a plea is induced by an inaccurate promise that an issue is preserved for appeal, the defendant “ ‘should be given an opportunity to reevaluate his guilty plea and withdraw that plea and proceed to trial if he so desires.’ ” (Hollins, supra, 15 Cal.App.4th at p. 575; see People v. Truman (1992) 6 Cal.App.4th 1816, 1820-1821; People v. Bonwit (1985) 173 Cal.App.3d 828, 833; Coleman, supra, 72 Cal.App.3d at pp. 292-293.) In addition, as acknowledged by defendant, because the jury had already found defendant guilty on count 1 for the vehicle theft offense, if defendant chooses to withdraw his plea, he remains guilty of count 1. Defendant also remains subject to his jury trial waiver on his prior conviction allegations because he had already waived his right to a jury on the priors approximately one week before he entered into his plea agreement.
IV
DISPOSITION
We reverse the judgment. The matter is remanded to the trial court with instructions that defendant be given an opportunity to withdraw his no contest plea and admission to the prior strike conviction. If he chooses to withdraw his plea, defendant remains guilty of driving or taking a vehicle without the owner’s consent in violation of Vehicle Code section 10851, subdivision (a), as alleged in count 1 by virtue of the jury’s guilty verdict on that count. Furthermore, if defendant proceeds to trial on his prior conviction allegations, the trial shall be by court trial as defendant previously waived his right to a jury trial on his prior conviction allegations. In the event defendant declines to withdraw his no contest plea and admission, the trial court is to reinstate its judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.
We concur:



RAMIREZ
P. J.



FIELDS
J.