Filed 11/25/14 P. v. Kohut CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065969

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. INF055931)

JONATHAN JOSEPH KOHUT,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside County, Richard A.

Erwood, Judge. Reversed.

         Jan B. Norman, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General; Dane R. Gillette and Julie L. Garland,

Assistant Attorneys General; Charles C. Ragland and Parag Agrawal, Deputy Attorneys

General, for Plaintiff and Respondent.
       In 2012, appellant Jonathan Joseph Kohut pleaded guilty to forced oral copulation

(Pen. Code,1 § 288a, subd. (c)(2), count 1) and forced sodomy (§ 286, subd. (c)(2), count

2). Kohut admitted a burglary enhancement on count 1 (§ 667.61, subd. (e)(2)). In

exchange, the People dismissed counts of forced sexual intercourse (§ 261, subd. (a)(2),

count 3), forced oral copulation (§ 288a, subd. (c)(2), count 4), and burglary and gun

enhancements on each count (§ 667.61, subds. (e)(2) & (e)(4)). The court sentenced

Kohut to an indeterminate term of 15 years to life on count 1 and an eight-year

concurrent term on count 2.

       Kohut contends that a condition of his guilty plea was that he be permitted to

retain his appeal rights and, therefore, he should be allowed to withdraw his guilty plea

because of his reliance on that condition. Relying on California v. Trombetta (1984) 467

U.S. 479 (Trombetta), Kohut further contends the court abused its discretion when it

refused to impose sanctions based on the Riverside County Sheriff Department's failure

to preserve allegedly exculpatory evidence. In light of the trial court's review of sheriff

department reports and its finding there was no relevant third party culpability evidence,

Kohut requests we independently review the same reports. We reverse the judgment

because we conclude he was induced to plead guilty by the promise of an illusory right to

appeal.




1      All statutory references are to the Penal Code unless otherwise indicated.
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                      FACTUAL AND PROCEDURAL HISTORY

       The facts regarding the sexual assault are taken from a 2006 sheriff department

interview with victim Jane Doe and the preliminary hearing transcript. In 1996, Doe

awakened to find a stranger in her bedroom. The man jumped on top of her, pinned her

to the bed, put a pillow over her face and told her to stop screaming or he was going to

kill her. The man shoved a blunt object, which Doe believed was a gun, under Doe's

jawbone and on her neck. He sat on Doe's chest with his knees pinning her shoulders.

He then forced Doe to orally copulate him, forcibly raped and sodomized her, and again

forced her to orally copulate him. He ejaculated on Doe's face and neck. He put Doe in a

closet, took her purse and left.

       A sexual assault response team (SART) nurse took samples of semen from Doe's

body. Doe reported her neck was bruised from the blunt object. The SART nurse and a

forensic technician photographed Doe's body.

       In August 2006, Deputy Robert Nagles and Sergeant Herman Lopez of the

Riverside County Sheriff Department learned from federal law enforcement authorities

that Kohut's blood and saliva samples matched the DNA from the semen found during

the SART exam.

       In December 2006, Deputy Nagles and Sergeant Lopez interviewed Kohut, telling

him about the DNA results. He started to cry, said he was sorry for what he had done and

asked the deputies to apologize to Doe for him. Kohut added something to the effect that,

"The poor lady didn't deserve that."

       At sentencing, the following exchange between the court and counsel took place:

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       "[Prosecutor]: [S]o there is an okay in this case to go ahead and not have the issue

with regard to the waiver of the right to appeal. [Kohut] doesn't have to waive it.

       "The Court: Oh, so you're saying that we have a disposition?

       " [Prosecutor]: I'm saying we have a disposition.

       "The Court: Okay.

       "[Defense Counsel]: This isn't another shoe dropping because I don't think there

will be a problem. He'd like immediate sentencing."

       Kohut signed the felony plea form stating, "As part of this plea, I do not waive any

right to appeal that I may have."

                                        DISCUSSION

                                              I.

          Kohut's Plea Should Be Vacated Because It Was Improperly Induced

       Kohut contends that his guilty plea was improperly induced by the court

permitting him to pursue this appeal.

       "[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,

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entitling defendant to withdraw guilty 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. (§ 1237.5,

subd. (a); see also People v. DeVaughn (1977) 18 Cal.3d 889, 896 (DeVaughn); People v.

Ribero (1971) 4 Cal.3d 55, 60-64.) Issuance of a certificate of probable cause "cannot

expand the scope of review to include a noncognizable issue." (People v. Hoffard (1995)

10 Cal.4th 1170, 1178.)

       A defendant may raise on appeal a claim that his plea was invalid because the

court induced him to preserve for appeal an issue that was not appealable. In such an

instance, the judgment must be reversed because the inducement to plead guilty was a

misrepresentation of a fundamental nature. (DeVaughn, supra, 18 Cal.3d at p. 896.)

       Here, the People represented to the court that Kohut was not required to waive his

right to appeal. The court acquiesced in the People and Kohut's agreement that was

memorialized in Kohut's plea form specifically stating he did not waive any right to

pursue an appeal. The court also issued a certificate of probable cause permitting Kohut

to appeal.2 Thus, the promise from the court was illusory and an improper inducement

that voids Kohut's plea. (See DeVaughn, supra, 18 Cal.3d at p. 896.)



2      In the certificate of probable cause, Kohut argued the grounds for appeal as
follows: "Prosecution exceeded the Statute of Limitations per [Stogner v. California
(2003) 539 U.S. 607]. Due process was denied by the failure of prosecution and court to
turn over exonerating evidence, to wit: [Brady v. Maryland (1963) 373 U.S. 83]. Due
process and fair trial were denied by court disallowing a third party culpability defense.
[(State v. Holmes (N.C.App. 2002) 562 S.E.2d 26.)] Due process was denied by
prosecution's destruction of evidence."
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         We are not persuaded by the People's reliance on People v. Hernandez, supra,

6 Cal.App.4th 1355, in which the court of appeal concluded the record contained "no

representation by the court that an appeal would be permitted, nor any understanding that

defendant's plea was conditioned upon such an assumption." (Id. at pp. 1360-1361, fn.

omitted.) By contrast, here, the prosecutor informed the court of the condition of Kohut's

plea, and it accepted Kohut's plea form that explicitly stated Kohut did not waive his right

to appeal.

         Kohut should be given an opportunity to reevaluate his guilty plea and withdraw

that plea and proceed to trial if he so desires. (People v. Bonwit (1985) 173 Cal.App.3d

828, 833, citing People v. Hill (1974) 12 Cal.3d 731, 769, overruled on other grounds in

DeVaughn, supra, 18 Cal.3d at p. 896, fn. 5.)

                                               II.

                       The Court Did Not Err in Finding No Bad Faith

         In the event Kohut decides to go to trial, we offer guidance on an issue likely to

arise.

         At the start of trial, Kohut moved in limine, seeking "[an Evidence Code section]

402 hearing be conducted on the whereabouts of photographs and negatives which have

allegedly disappeared in support of a remedy barring secondary evidence of the items

intended to be depicted by said photography." Jennifer Jernegan, a sheriff department

forensic technician, testified the photographs had been stored with evidence from other

cases in cardboard boxes on the floor of a storage facility connected to the sheriff

department's station. Jernegan further testified that in either 2005 or 2006, a flood

                                               6
destroyed the evidence in this case and other cases. Afterwards, support staff disposed of

the photographs without knowing their evidentiary value.

       The court provisionally denied Kohut's motion to exclude secondary evidence

regarding the photographs, ruling, "Basically, what [Jernegan] testified to is that some

support staff were directed to get rid of anything that was damaged, and they threw out

items that they didn't realize until after they were thrown out that they were items of

evidence. And she's gone through the computer attempting to see whether or not the

photographs were entered into the computer . . . . [¶] There is no documentation as to

what, in fact, the support staff threw out, but what's required is a showing of bad faith

that they would realize that this was evidence, and they threw it out. And they did so

with the intent to deprive a defendant of due process, and that hasn't been shown. So I'm

going to deny your motion at this time. If you find out that there are digital photographs

somewhere that were destroyed, then you can revisit it."

       Kohut argues that the destruction of evidence violated his right to due process of

law protected by the Fourteenth Amendment. Further, Kohut argues he is entitled to

relief because the sheriff department's inability to preserve the evidence constituted at

least gross negligence, which amounts to bad faith.

Applicable Law

       The standards for law enforcement's duty to preserve evidence under the due

process clause of the Fourteenth Amendment are well established. Law enforcement

must preserve evidence "that might be expected to play a significant role in the suspect's

defense." (Trombetta, supra, 467 U.S. at p. 488.) However, that duty applies "only if

                                              7
[the evidence] possesses exculpatory value 'apparent before [it] was destroyed,' and not

obtainable 'by other reasonably available means.' " (People v. DePriest (2007) 42 Cal.4th

1, 41 (DePriest).) The state's responsibility is further limited when the defendant

challenges the failure to preserve evidence " 'of which no more can be said than that it

could have been subjected to tests' " that might have helped the defense. (Arizona v.

Youngblood (1988) 488 U.S. 51, 57 (Youngblood).)

       If the evidence is only potentially exculpatory, the defendant must show that law

enforcement acted in bad faith when destroying it. (Youngblood, supra, 488 U.S. at pp.

57-58.) Without bad faith, law enforcement's inability to preserve potentially exculpatory

evidence does not violate a defendant's due process rights. (Id. at p. 58.)

       In Youngblood, the court rejected a defendant's due process claim on analogous

facts. The defendant in Youngblood argued that the police failed to properly refrigerate

evidence. (Youngblood, supra, 433 U.S. at p. 55.) The defendant further argued this

failure prevented the defendant from testing the evidence to determine whether the

evidence was exculpatory. (Ibid.) The court in Youngblood rejected the defendant's

argument for two reasons. First, " 'the officers here were acting in "good faith and in

accord with their normal practice." ' " (Youngblood, supra, 433 U.S. at p. 56, citing

Trombetta, supra, 467 U.S. at p. 488.) Second, the court noted, "the failure of the police

to refrigerate the clothing and to perform tests on the semen samples can at worst be

described as negligent." (Youngblood, at p. 58.)

       Kohut has not shown the photographs had exculpatory value known to the sheriff

department when they were destroyed in the flood. Kohut also does not show how the

                                             8
photographs might have benefited his defense. (See Trombetta, supra, 467 U.S. at p.

488; see also DePriest, supra, 42 Cal.4th at p. 41.)

         Kohut did not demonstrate the sheriff department acted in bad faith. Rather, the

record shows the department's normal practice was to store all evidence in boxes on the

floor and not just the photographic evidence of Doe. Like the police in Youngblood, at

most, the sheriff department's storage of the photographic evidence could be described as

merely negligent. (See Youngblood, supra, 433 U.S. at p. 58.) Further, the flood was an

act of nature not attributable to law enforcement misdeeds. We conclude the sheriff

department did not act in bad faith by storing the photographs on the storage facility

floor.

         In light of our disposition of this case, we need not address Kohut's contention

regarding the trial court's review of law enforcement records.




                                               9
                                       DISPOSITION

       The judgment is reversed and the cause remanded to the Superior Court. If Kohut

files a motion to withdraw his guilty plea within 30 days after the finality of this opinion,

the Superior Court is directed to vacate the guilty plea. If no motion is filed within that

period, the court is directed to reinstate the judgment.



                                                                             O'ROURKE, J.

WE CONCUR:


McCONNELL, P. J.


HALLER, J.




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