THE PEOPLE v. ROBERT LOUIS HUNT (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Police officers executed a narcotics search warrant at Robert Hunt's residence, discovering a substantial amount of cocaine base and powdered cocaine.   He was charged with possession of cocaine base for sale (Health & Saf.Code, § 11351.5;  count 1) and possession of a controlled substance for sale (Health & Saf.Code, § 11351, subd. (a);  count 2).   It was alleged both offenses were committed for the benefit of a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1)(A) and that defendant had suffered prior convictions.

At the preliminary hearing, defendant challenged under Penal Code section 995 the sufficiency of evidence supporting the gang enhancement allegations.   The trial court denied the motion.   The prosecution and defense then agreed that defendant would admit to being a gang member solely for purposes of a plea bargain and on the condition that the trial court issue a certificate of probable cause preserving his right to appeal the denial of his section 995 motion.   The trial court agreed.   Defendant entered a negotiated plea of no contest as to count 1 and admitted the gang allegation.   Count 2 was dismissed.   The trial court sentenced defendant to five years in prison, comprising three years as a base term and a two-year gang enhancement.   The court also signed a certificate of probable cause, which states, “Defendant entered into the plea admitting the allegation while reserving his right to challenge the sufficiency of evidence supporting that allegation on appeal.   The District Attorney agreed to allow Mr. Hunt to appeal the Court's decision regarding the allegation and if the gang allegation were struck after appellate review, the underlying 3 year sentence for Possession for Sale would remain.”

On appeal, defendant contends his plea is void because it was induced by a misrepresentation as to his ability to appeal denial of his section 995 motion.   The People concede the point, and we agree.

“Challenges to rulings on Penal Code section 995 motions on grounds other than the validity of a search or seizure do not survive a guilty plea.”   (People v. Roper (1983) 144 Cal.App.3d 1033, 1039;  People v. Lilienthal (1978) 22 Cal.3d 891, 897.)   This rule applies to motions regarding enhancement allegations.  (People v. Fulton (2009) 179 Cal.App.4th 1230, 1237.)   The right to appeal on grounds inconsistent with a plea cannot be granted as part of the plea agreement (People v. Meals (1975) 49 Cal.App.3d 702, 707) or in a certificate of probable cause (People v. Moore (2003) 105 Cal.App.4th 94, 99).   A trial court may not approve a “negotiated plea bargain purporting to provide the otherwise illusory right of appeal.”  (People v. Lee (1980) 100 Cal.App.3d 715, 718.)   A promise to do so is “an improper inducement which voids the plea.”  (People v. Bonwit (1985) 173 Cal.App.3d 828, 833.)

Defendant's section 995 motion presented no claim related to search and seizure, but was based solely on the sufficiency of the evidence supporting the gang allegation.   The trial court's promise that defendant could appeal the denial of his motion after admitting the gang allegation was illusory.   Defendant is therefore entitled to withdraw his plea if he wishes to do so.   (People v. Truman (1992) 6 Cal.App.4th 1816, 1820-1821.)

DISPOSITION

The judgment is reversed with directions to permit defendant to withdraw his plea within 30 days of the finality of this opinion.   If no such motion is brought by him, the trial court is directed to reinstate the original judgment.  (People v. Miller (1983) 33 Cal.3d 545, 556.)

NOT TO BE PUBLISHED.

CHANEY, J.

We concur:

MALLANO, P. J.

JOHNSON, J.