Filed 5/21/15 P. v. Tubbs CA3
                                          NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                     THIRD APPELLATE DISTRICT
                                                    (Sacramento)
                                                            ----




THE PEOPLE,                                                                            C075419

                   Plaintiff and Respondent,                               (Super. Ct. No. 12F00259)

         v.

RONDALE TUBBS,

                   Defendant and Appellant.




         Defendant Rondale Tubbs entered a negotiated plea of no contest to one count of
passing a fictitious check (Pen. Code, § 476)1 and one count of identity theft of 10 or
more persons (§ 530.5, subd. (c)(3)). He admitted three prior serious juvenile
adjudications and was sentenced to five years in state prison.



1 Undesignated statutory references are to the Penal Code.


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       During the change of plea hearing, the trial court incorrectly indicated that
defendant would retain the right to challenge the validity of the prior juvenile
adjudications on appeal. Defendant contends, and the People concur, that the pleas were
improperly induced by an unenforceable promise that his challenge to the validity of the
prior juvenile adjudications would be preserved for appeal and, as a result, defendant
must be given an opportunity to withdraw his pleas. We reverse the judgment and
remand with directions to give defendant an opportunity to withdraw his pleas.

                  FACTUAL AND PROCEDURAL BACKGROUND

       During the fall of 2011, the Sacramento Valley Hi-Tech Crimes Task Force, a
division of the Sacramento County Sheriff’s Department (Sheriff’s Department), and the
Rocklin Police Department (RPD) were investigating complaints of identity theft
involving fictitious checks in Sacramento and Placer counties. During the course of their
investigations, both law enforcement agencies identified defendant as a possible suspect.

       RPD officers conducted surveillance on defendant’s apartment, and saw his
girlfriend, Alexis Ramos, leave the garage and drive to a nearby convenience store, where
she met defendant’s mother, Sabrina Thavarabrahma. Ramos transferred several items
from her car to Thavarabrahma’s and then drove away.

       Officers stopped Thavarabrahma for driving with an expired registration and
searched her car. They found a computer, digital media storage devices, counterfeit
currency, counterfeit identification cards, altered credit cards, and a credit card reader.
They also found an unregistered gun.

       The Sheriff’s Department subsequently examined a USB drive and external hard
drive seized from Thavarabrahma’s car and found “evidence of counterfeit check
manufacturing, counterfeit money manufacturing and counterfeit identification
manufacturing.” Among other things, the Sheriff’s Department found templates for



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making counterfeit identification cards and fictitious checks, and Excel spreadsheets
containing credit card and checking account numbers. RPD then conducted two separate
searches of defendant’s apartment, one pursuant to a search warrant and a subsequent
probation search. During the probation search, RPD found additional evidence of
counterfeiting and identity fraud, including counterfeit currency, counterfeit identification
cards, and altered credit cards. Defendant subsequently admitted that he created
templates for fictitious checks using Photoshop, which he loaded onto USB drives for
sale to third parties.

       As a result of these investigations, an amended consolidated information was filed
charging defendant with nine felony counts as follows: (a) selling, transferring, and
conveying the personal identifying information of another for an unlawful purpose
(§ 530.5, subd. (d)(2)—count one); (b) possessing the driver’s license of another with
intent to facilitate a forgery (§ 470b—count two); (c) passing a fictitious bill or check
(§ 476—count three); (d) forging or counterfeiting a banking instrument (§ 470, subd.
(d)—count four); (e) identity theft of 10 or more persons (§ 530.5, subd. (c)(3)—count
five); (f) acquiring access cards issued in the names of four or more persons during a 12-
month period (§ 484e, subd. (b)—count six); (g) felon in possession of a firearm
(§ 12021, subd. (a)(1)—count seven); and (h) two additional counts of selling or
conveying identifying information of another for an unlawful purpose (§ 530.5, subd.
(d)(2)—counts eight & nine). In addition, the information alleged that defendant had
suffered three prior serious juvenile adjudications (§§ 667, subds. (b)-(i); 1170.12) and
had served one prior prison term (§ 667.5, subd. (b)).

       On September 9, 2013, defendant, acting in propria persona, filed a motion to
vacate his prior juvenile adjudications on the ground that they were premised on a
defective plea. (People v. Allen (1999) 21 Cal.4th 424, 429; People v. Sumstine (1984)
36 Cal.3d 909, 918-919.) On October 11, 2013, defendant, through counsel, filed a


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motion to strike the prior juvenile adjudications pursuant to People v. Superior Court
(Romero) (1996) 13 Cal.4th 497. The trial court denied both motions.2

       On November 22, 2013, the parties reached a plea agreement. Pursuant to the
agreement, defendant pleaded no contest to passing a fictitious bill or check (§ 476—
count three) and identity theft of 10 or more persons (§ 530.5, subd. (c)(3)—count five).
Defendant also admitted the prior juvenile adjudications and prior prison term allegation.
In return, the remaining charges were dismissed, and defendant was sentenced to state
prison for a stipulated term of five years.

       During the change of plea hearing, defense counsel explained that defendant’s
prior juvenile adjudications involved “very complicated legal issues” which had been
“litigated a couple [of] times” before other judges and “[defendant] is just going to appeal
on that.” Defense counsel continued, “On that [the prosecutor] has no objection, but
when it comes to the certificate of probable cause, it would be necessary.” The
sentencing judge responded, “I’m satisfied if he wishes to waive that issue.” The
sentencing judge then suggested, “Why don’t you and the People stipulate the matter for
the certificate of probable cause can be submitted to [the judge who heard defendant’s
motion to vacate the prior juvenile adjudications] since he’s familiar with that.” Defense
counsel and the prosecutor agreed to do so.

       The prosecutor then described the factual basis for defendant’s plea, including the
factual basis for the prior juvenile adjudications. With respect to the prior juvenile
adjudications, the prosecutor explained, “Prior conviction No. 1, on or about the 28th of
September 1993, Superior Court [of the] County of Contra Costa, the defendant was



2 Defendant, through counsel, had previously filed a Romero motion, which was denied.
Defendant, in propria persona and on the eve of trial, had also filed a “motion to strike
prior convictions [and] collater[al]ly challenge . . . constitutional infirmities in . . . prior
convictions,” which the trial court declined to hear.

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convicted of attempted robbery, along with [section] 12022[, subdivision] (b), personal
use allegation, a serious felony and a strike. [¶] September 29, 1993, Superior Court [of
the] County of Contra Costa, defendant was convicted of a violation of [section] 211 of
the Penal Code, a serious felony and a strike. [¶] October 11, 1993, Superior Court [of
the] County of Contra Costa, defendant was convicted of another violation of Penal Code
Section 211, a serious felony and a strike.”

       A short time later, the following colloquy took place: “THE COURT: You do
contest the legality of the prior strikes? [¶] [DEFENSE COUNSEL]: Yes. [¶] THE
COURT: And you’ve already litigated that matter and you intend to appeal on that issue?
[¶] [DEFENSE COUNSEL]: Correct. [¶] THE COURT: So you’re reserving that right
but not making comment as to the other factual basis? [¶] [DEFENSE COUNSEL]:
Correct. Thank you.” The trial court then informed defendant of his constitutional rights
and the consequences of his plea.

       After accepting defendant’s no contest pleas, the trial court addressed the prior
juvenile adjudications. The following colloquy took place: “THE COURT: As to the
priors that are alleged, without waiving your right to appeal the issue litigated previously,
prior conviction No. 1, the September 28th, 1993, [section] 211 out of Contra Costa
County—it’s an attempted [section] 211—to that—do you admit that is true for the
purposes of the plea only and without waiving the issue that was previously litigated? [¶]
[DEFENDANT]: Yes, sir. [¶] THE COURT: As to prior No. 2, the robbery out of
Contra Costa County on September 29th of 1993, without waiving the prior matters
you’ve litigated, do you admit that for the purpose of the plea? [¶] [DEFENDANT]:
Yes. [¶] THE COURT: As to prior conviction No. 3, the October 11th, 1993, robbery in
Contra Costa County, [section] 211, to that charge, again without waiving your right to
litigate the prior matter that was heard by [another judge], for the purposes of the plea




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only, what is your plea? Do you admit that? [¶] [DEFENDANT]: Yes.” The trial court
then sentenced defendant to the stipulated term of five years in state prison.

       Defendant filed a timely notice of appeal, which indicated that his appeal was
based on the denial of his motion to vacate the prior juvenile adjudications. The trial
court granted defendant’s request for a certificate of probable cause, which stated,
“Defendant was sentenced pursuant to the provisions of Penal Code Section 667[,
subdivision] (e)(1) based upon prior felony strike convictions. Those convictions,
incurred in 1993 when defendant was a juvenile, were the subject of defendant’s Motion
to Vacate Prior Convictions. . . . The motion was denied. Defendant thereafter entered
pleas of No Contest to Counts Two and Four [(sic)] of the Information with the
understanding that he could appeal the denial of his motion.”

                                      DISCUSSION

       Defendant acknowledges that, having admitted three prior juvenile adjudications
as part of his plea agreement, he can no longer appeal from the denial of his motion to
vacate those adjudications. He therefore contends he is entitled to withdraw his plea,
which he claims was induced by the “illusory promise” that “he would be allowed to
raise on appeal the denial of his motion to vacate his prior convictions, as
unconstitutionally obtained.” The People concede that defendant’s plea is invalid and the
judgment must be reversed, and we agree.

       “A defendant’s guilty plea or admission of a sentence enhancement allegation is
deemed to constitute a judicial admission of every element of the offense charged and
severely restricts the defendant’s right to appeal from the ensuing judgment.” (People v.
Bowie (1992) 11 Cal.App.4th 1263, 1266.) In this case, the parties agree that defendant’s
admission conceded the validity of the prior juvenile adjudications, and foreclosed any
claim that they were premised on a defective plea. (Id. at p. 1268; see People v. LaJocies
(1981) 119 Cal.App.3d 947, 956-957.)

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       As defendant recognizes, the trial court’s issuance of a certificate of probable
cause approving an appeal from the denial of the motion to vacate the prior juvenile
adjudications does not help him. “A certificate of probable cause cannot render
reviewable a claim that is otherwise not cognizable on appeal from a guilty plea.”
(People v. Collins (2004) 115 Cal.App.4th 137, 149; see People v. Hunter (2002)
100 Cal.App.4th 37, 41-42; People v. Robinson (1997) 56 Cal.App.4th 363, 368-369.)
The apparent agreement of the parties and the trial court that the matter would be
reviewable upon issuance of a certificate of probable does not help defendant either.
“[T]he parties cannot by their agreement confer upon this court the jurisdiction to hear an
issue which is not appealable. (Cf. People v. DeVaughn (1977) 18 Cal.3d 889, 895-896
[a trial court’s issuance of a certificate of probable cause cannot expand the otherwise
limited issues cognizable on appeal after a plea of guilty].)” (People v. Burns (1993)
20 Cal.App.4th 1266, 1274.)

       However, defendant is entitled to review of the plea entered in the present case.
Defendant’s request for a certificate of probable cause specifically states that defendant
entered his plea “with the understanding that he could appeal the denial of his motion,”
and therefore encompasses the circumstances surrounding the entry of his plea. (Cal.
Rules of Court, rule 8.304(b); People v. Mendez (1999) 19 Cal.4th 1084, 1088.) We
therefore examine the entry of the plea.

       The process of plea bargaining “contemplates an agreement negotiated by the
People and the defendant and approved by the court.” (People v. Orin (1975) 13 Cal.3d
937, 942; In re Lewallen (1979) 23 Cal.3d 274, 280-281.) “Failure of the state to honor
the agreement violates the defendant’s due process rights for which the defendant is
entitled to some remedy.” (People v. Lopez (1998) 66 Cal.App.4th 615, 636; see
People v. Campbell (1994) 21 Cal.App.4th 825, 829.) “ ‘Where a defendant’s plea is
“induced by misrepresentations of a fundamental nature” such as a bargain which is


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beyond the power of the trial court, a judgment based upon the plea must be reversed.’ ”
(People v. Hollins (1993) 15 Cal.App.4th 567, 574 (Hollins).) A defendant has the
“established right to withdraw his or her guilty plea if the plea bargain is not honored
. . . .” (People v. Casillas (1997) 60 Cal.App.4th 445, 450.)

       The record before us demonstrates that defendant’s plea was induced by the
representation that he would have the right to appeal the denial of the motion to vacate
the prior juvenile adjudications upon issuance of a certificate of probable cause.
Defendant’s admission of the prior juvenile adjudications, however, precludes him from
seeking review of the denial of the motion to vacate, notwithstanding the representations
made to him as part of the plea agreement. (People v. Truman (1992) 6 Cal.App.4th
1816, 1820-1821.) “A plea or admission which is improperly induced by a trial court’s
misrepresentation purporting to preserve for appeal issues waived by such plea or
admission may be attacked on appeal as invalid.” (People v. Bowie, supra,
11 Cal.App.4th at p. 1266; see People v. Burns, supra, 20 Cal.App.4th at p. 1274.) The
illusory promise of the right to appeal the denial of the motion to vacate the prior juvenile
adjudications “ ‘voids the plea.’ ” (Hollins, supra, 15 Cal.App.4th at p. 575.) Defendant
must therefore be given the “ ‘opportunity to reevaluate his guilty plea and withdraw that
plea and proceed to trial if he so desires.’ ” (People v. Truman, supra, 6 Cal.App.4th at
p. 1821; see Hollins, supra, 15 Cal.App.4th at p. 575.)

                                      DISPOSITION

       The judgment is reversed and the matter is remanded to the trial court with
directions to afford defendant an opportunity to withdraw his no contest pleas. If
defendant moves to withdraw his no contest pleas within 30 days after remittitur
issuance, the trial court is directed to vacate the pleas and reinstate the information for
further proceedings. If defendant’s pleas are set aside, all special allegations are to be



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reinstated. Should defendant fail to move to withdraw his pleas within the 30-day period,
the trial court is directed to reinstate the judgment.




                                                         BUTZ              , J.



We concur:



      RAYE                   , P. J.



      NICHOLSON              , J.




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