Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. JCF22499 of Imperial County, Donal B. Donnelly, Judge.
McDONALD, J.
On July 5, 2007, prison inmate Sean Rodriguez struck and injured a correctional officer. In February 2009 Rodriguez entered a negotiated guilty plea to assault by a prisoner by means of force likely to produce great bodily injury. (Pen. Code, § 4501.) Pursuant to People v. McCart (1982) 32 Cal.3d 338, the plea bargain provided for a stipulated sentence of 16 months (one-third the middle term) to run consecutively to the prison term Rodriguez was then serving. In March the probation officer filed a report showing Rodriguez was released from prison before the plea hearing, making a consecutive sentence impossible. Rodriguez filed a motion for specific enforcement of the plea bargain. The court concluded the stipulated sentence was not legally authorized and the full four-year middle term was required. The court granted Rodriguez's motion to withdraw his plea. In June, Rodriguez entered a negotiated guilty plea that included a stipulated six-year upper prison term. The plea agreement expressly preserved Rodriguez's right to appeal the court's refusal to enforce the February plea bargain with a stipulated one-third the middle term sentence. The court imposed the stipulated six-year sentence.
All further statutory references are to the Penal Code.
In People v. McCart, supra, 32 Cal.3d 338, the court held section 1170.1, subdivision (b), "call[s] for computation of a single term of imprisonment for all convictions of felonies committed in prison and sentenced consecutively, whether multiple convictions occur in the same court proceeding or in different proceedings. That this term is to commence when the person would otherwise have been released emphasizes that the new term is to be fully consecutive to the term already being served: i.e., that it must commence at the end of the longest of the prisoner's previously imposed terms." (People v. McCart, supra, at p. 343.)
At the outset of the change of plea hearing, defense counsel stated the plea bargain provided for a "sentence... that must run consecutive to the sentence [Rodriguez] has been serving in state prison." In taking the plea, the court told Rodriguez the sentence would "run consecutive to any time you're presently serving."
The change of plea form described the six-year sentence as "consecutive." At the change of plea hearing, defense counsel said the six-year sentence "must run consecutive." The court did not mention a consecutive sentence when taking Rodriguez's plea.
Rodriguez appeals. He contends his June guilty plea was induced by the material misrepresentation that he could appeal the court's rejection of his February plea bargain even though he had withdrawn the February plea. He concludes the June plea was not knowing and intelligent and must be vacated. The People concede the point. We agree the June plea must be vacated.
Issues cognizable on appeal following Rodriquez's June guilty plea are limited to those involving " 'constitutional, jurisdiction[al], or other grounds going to the legality of the proceedings' resulting in the [June] plea." (People v. DeVaughn (1977) 18 Cal.3d 889, 895, cited in People v. Hoffard (1995) 10 Cal.4th 1170, 1178.) The court's rejection of Rodriguez's February plea bargain and Rodriguez's withdrawal of that plea do not implicate the court's jurisdiction with respect to the June change of plea proceedings, the legality of those proceedings or the constitutional validity of the June plea. Thus, following the June plea, Rodriguez cannot appeal the rejection of the February plea.
The purported preservation in the June plea agreement of Rodriguez's right to appeal the court's rejection of the February plea bargain does not confer a right to appeal the rejection. "[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.) Thus, it is improper for a trial court to approve a "plea bargain purporting to provide the otherwise illusory right of appeal" and "[t]he resulting failure to properly advise the defendant of the consequences of his conditional plea render[s] the plea bargain itself procedurally defective." (People v. Lee (1980) 100 Cal.App.3d 715, 718 [plea bargain conditioned on right to appeal denial of speedy trial was fatally defective, entitling defendant to withdraw guilty plea].)
Rodriguez's certificate of probable cause does not change this result. " 'The impact of section 1237.5 relates to the procedure in perfecting an appeal from a judgment based on a plea of guilty, and not to the grounds upon which such an appeal may be taken.' " [Citation.] (People v. Hoffard, supra, 10 Cal.4th at p. 1178.) Issuance of a certificate of probable cause "cannot expand the scope of review to include a noncognizable issue." (Ibid.)
Section 1237.5 states: "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty..., except where both of the following are met: [¶] (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. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court."
Because Rodriguez's June guilty plea was expressly conditioned on the reservation of an illusory right to appeal rejection of his February plea bargain, he must be allowed to withdraw his June plea. (People v. Hollins (1993) 15 Cal.App.4th 567, 575.)
We need not discuss Rodriguez's contentions the court erred by imposing a court security fee of $30 rather than $20 (§ 1465.8, subd. (a)(1)), and trial counsel incorrectly advised him he could appeal the court's rejection of the February plea.
DISPOSITION
The judgment is reversed and the cause remanded to the trial court. If Rodriguez files a motion to withdraw his guilty plea within 30 days after the finality of this opinion, the court is directed to vacate the June guilty plea. If no motion is filed within that period, the court is directed to reinstate the judgment.
WE CONCUR:, BENKE, Acting P. J., NARES, J.