Filed 9/20/17 P. v. Weston CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. J. David Mazurek, Judge. Reversed with directions.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Freddie Lee Weston was charged with murder during a burglary and a robbery. (Pen. Code,[1] § 187, subd. (a); 190.2, subds. (a)(17)(A), (G).) It was further alleged that he used a deadly weapon within the meaning of section 12022, subdivision (b)(1), and a firearm within the meaning of section 12022.53, subdivision (b). On the 12th day of trial, defendant pled guilty to first degree murder in exchange for dismissal of all enhancements, and a promise by the trial court that his right to appeal the denial of his motion to suppress evidence obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) would be preserved. He was sentenced to 25 years to life in state prison. The trial court issued a certificate of probable cause, and defendant appealed. He contends his confession was obtained in violation of Miranda; alternatively, he asserts that if his guilty plea forecloses appellate review of this issue, the case must be remanded to allow him the opportunity to withdraw his plea. The People concede, and we agree, that the case must be remanded to allow defendant the opportunity to withdraw his plea. We do not reach the merits of defendant’s Miranda argument.

I. PROCEDURAL BACKGROUND AND FACTS

On January 19, 2013, an 85-year-old woman (victim) awakened to find an unknown man (assailant) rummaging through her possessions. She confronted him, and he began beating her, demanding money. The victim’s husband, who was 95 years old, was awake when the assailant dragged the victim into his room; the victim’s husband tried to shoot defendant but lacked the strength to pull the trigger. The assailant forcefully took the gun and held it to the victim’s head, demanding money or he would kill her. Eventually, the assailant fled with approximately $20,000 in cash and the gun. One month later, the victim passed away from injuries sustained in the attack.

Defendant was interviewed. After receiving Miranda warnings, he confessed to having committed the crime.

Before trial, defense counsel moved to exclude defendant’s statements to police officers on the grounds they had been obtained in violation of the waiver requirements set forth in Miranda, and they were not voluntary. The trial court denied the motion, and the prosecutor was allowed to introduce the statements as evidence. Faced with this ruling, defendant entered into a plea agreement. On the signed plea form, defendant initialed the box stating, “I waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain.” The court confirmed defendant’s understanding of the constitutional rights he was giving up. When the court asked defense counsel whether he joined in the plea, the following discussion occurred:

“[DEFENSE COUNSEL]: It does pain me to do so. I would indicate with the caveat the Court did indicate it will sign a certificate of probable cause in this case for the Miranda and voluntariness issue.

“THE COURT: I did agree. Normally, Mr. Weston, when you enter a plea, you waive or give up any appeal rights. I did indicate to your attorney that I would—on the issue of whether your statements to the police were voluntary and whether or not you were properly Mirandized, I indicated to your attorney that you could appeal those issues but you’d be limited in your appeal to those issues.

“THE DEFENDANT: All right.

“THE COURT: That’s about the most basic way I can explain it. [¶] Do you understand that?

“THE DEFENDANT: Yes.”

The prosecutor interjected that he disagreed with the court’s advisement on the ground that a plea waives all of defendant’s appellate rights. The court replied, “Yeah. But I will—and then we’ll see what happens.”

II. DISCUSSION

Defendant contends his guilty plea was improperly induced by the promise that the violation of his Miranda 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 [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.) “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 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.]” (Id. at p. 896; see People v. Kaanehe (1977) 19 Cal.3d 1, 9 [“[o]btaining a certificate of probable cause does not make cognizable those issues which have been waived by a plea of guilty”].)

Given defendant’s guilty plea, the issue of whether his incriminating extrajudicial statements relating to his guilt was involuntarily or improperly induced is not cognizable on appeal. The trial court’s promise to the contrary was illusory. Because defendant’s plea was induced by the court’s misrepresentation, the judgment must be reversed, and the matter must be remanded to allow defendant an opportunity to withdraw his plea. Our reversal is qualified and does not extend to the trial court’s rulings on pretrial in limine motions. On remand, all pretrial rulings on motions in limine remain valid and binding subject to the trial court’s discretion to reconsider such motions in light of new evidence that could not have been discovered through reasonable means. (People v. Mattson (1990) 50 Cal.3d 826, 849-850 [appellate court may order that prior ruling made in the prior trial will be binding at the new trial].)

III. DISPOSITION

We reverse the judgment. The matter is remanded to the trial court with instruction that defendant be given an opportunity to withdraw his guilty plea. If he chooses to withdraw his plea and proceed to trial, we order that all pretrial rulings on motions in limine remain valid and binding, subject to the trial court’s discretion to reconsider such motions in light of new evidence that could not have been discovered through reasonable means. In the event he declines to withdraw his guilty plea, the trial court is to reinstate its judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MCKINSTER

J.

SLOUGH

J.