Filed 12/26/13 P. v. Carter 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                       (Tehama)
                                                            ----




THE PEOPLE,                                                                                  C073582

                   Plaintiff and Respondent,                                    (Super. Ct. No. NCR82744)

         v.

TESS MEGAN CARTER,

                   Defendant and Appellant.




         Defendant Tess Megan Carter appeals from the judgment following her plea of no
contest to one count of transporting marijuana. (Health & Saf. Code,1 § 11360.) She
contends that the case must be remanded to permit her to withdraw her plea, because it
was induced by the improper promise that she could obtain review on appeal of the trial
court’s grant of the prosecution’s motion to exclude evidence at trial related to her




1        Undesignated statutory references are to the Health and Safety Code.

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defense based on the Compassionate Use Act. (§ 11362.5 et seq.) The People concede
that the case must be remanded, and we agree.
                                      BACKGROUND
        After four pounds of marijuana were found in the trunk of her car during a traffic
stop, defendant was charged with transporting marijuana and possessing marijuana for
sale.
        In anticipation of defendant’s possible argument at trial that she is a member of a
collective or cooperative entitled to the protection of the statutes related to the regulation
of medical marijuana, the People moved successfully in limine to exclude all references
to the Compassionate Use Act or medical marijuana at trial. Defendant’s subsequent in
limine motion to determine whether her trial testimony would be sufficient to allow her to
present evidence as to the availability of an affirmative defense pursuant to the
Compassionate Use Act and the Medical Marijuana Program Act (§ 11362.7 et seq.) was
characterized by the court as a motion for reconsideration of its previous ruling granting
the prosecution’s in limine motion and denied.
        Promptly thereafter, at the same proceeding, defendant entered into a negotiated
disposition of the case at which the trial court stated the following: “To the extent a
certificate of probable cause is required, one should be granted in that this plea is being
made solely based upon the legal rulings that I have made previously in the case. You
both agree with that?
        “[Prosecutor]: Yes.
        “[Defense Counsel]: Yes, your Honor.
        “The Court: [Defendant] is entering the plea based upon the fact that my rulings
pretty much took away the medical marijuana defense, which is going to be contested on
appeal. But as to the West plea [People v. West (1970) 3 Cal.3d 595], you need this to
point to in the transcript: The Probation Department should not expect her to state that
she knows she is guilty and sorry. Her reason for this plea is that she believes she had a

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medical marijuana defense and was not breaking the law. But, in fact, as it turns out, I
did not allow her a medical marijuana [defense]. And, that is the defense and that is the
reason for the West plea.”
       Subsequently, the trial court took defendant’s plea and sentenced her to probation
in accordance with that plea. Prior to filing this appeal, defendant obtained a certificate
of probable cause in accordance with Penal Code section 1237.5.
                                       DISCUSSION
       It is well settled that only limited issues are cognizable on appeal following a
guilty plea. “A guilty plea admits every element of the charged offense and constitutes a
conviction [citations], and consequently issues that concern the determination of guilt or
innocence are not cognizable. [Citations.] Instead, appellate review is limited to issues
that concern the ‘jurisdiction of the court or the legality of the proceedings, including the
constitutional validity of the plea.’ [Citations.]” (In re Chavez (2003) 30 Cal.4th 643,
649, fn. omitted.)
       Indeed, Penal Code section 1237.5, which governs the right to appeal following a
plea of guilty or no contest, provides that a defendant may not seek an appeal from a
guilty plea unless: “(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,” and “(b) The
trial court has executed and filed a certificate of probable cause for such appeal with the
clerk of the court.” (Ibid.)
       A pretrial ruling regarding the applicability of defenses at trial is an issue that goes
to guilt or innocence, and therefore is not reviewable on appeal. (People v. Shults (1984)
151 Cal.App.3d 714, 718-720.) The issuance of a certificate of probable cause does not
operate to expand the scope of review to include a noncognizable issue. (People v.
Hoffard (1995) 10 Cal.4th 1170, 1178; People v. Kaanehe (1977) 19 Cal.3d 1, 9.) Thus,
the issue of whether the trial court erred by granting the People’s motion to exclude

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evidence relating to defendant’s potential medical marijuana defense may not be
reviewed on appeal.
        Both parties concede that the issue sought to be preserved in the trial court was
waived by the entry of the plea. The question then becomes whether defendant’s plea
was premised upon her right to appeal the trial court’s decision. “Where a guilty plea . . .
has been improperly induced by unenforceable promises that issues have been preserved
for appeal the defendant . . . is entitled to an opportunity to withdraw the plea.” (Ricki J.
v. Superior Court (2005) 128 Cal.App.4th 783, 792.) From a plain reading of the
transcript of the hearing on the change of plea, we agree with the parties that defendant’s
plea was, in fact, induced by the promise that she would be able to appeal the ruling.
Consequently, she is now entitled to withdraw her plea if she so chooses. (People v.
DeVaughn (1977) 18 Cal.3d 889, 896; People v. Hollins (1993) 15 Cal.App.4th 567,
574.)
        In view of our conclusion, we do not reach defendant’s argument in the alternative
that she received ineffective assistance of counsel.
                                       DISPOSITION
        The case is remanded to the trial court with instructions to allow defendant an
opportunity to withdraw her plea. If defendant fails to withdraw the plea within 90 days
of issuance of the remittitur, the judgment is affirmed.



                                                           ROBIE               , Acting P. J.
We concur:


        BUTZ                 , J.



        MAURO                , J.


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