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Court of Appeal Voids Conviction Based on ‘Impossibility’
Man Pled No Contest to Human Trafficking of Minor, but Victim Was 26; Panel Treats Appeal as Habeas Petition, Avoiding Nonappealability Based on Lack of Certificate of Probable Cause, Finds Estoppel Inapplicable
By a MetNews Staff Writer
The First District Court of Appeal, after receiving a brief from appointed appellate counsel declaring there to be no arguable issues, yesterday treated the appeal as a petition for a writ of habeas corpus and granted it, invalidating a conviction on one count of human trafficking of a minor for a sex act in light of the victim having been 26 years old.
The opinion by Justice Teri L. Jackson of Div. Three orders that seven felony counts against a pimp, Devonne Lavert Richardson, be reinstated, and that the count alleging human trafficking of a minor—to which the defendant pled no contest—be dismissed. The plea bargain was structured so that Richardson would receive a five-year rather than face an eight-year minimum sentence.
Jackson said that “in this case the negotiated plea was no more valid than a no contest plea to murder where the victim is still alive.”
Attorney General’s Position
The jurist rejected the contention of the Office of Attorney General that the matter lacked justiciability. She wrote:
“Before beginning, we need to address the proverbial elephant in the room: The no contest plea to human trafficking of a minor was without a factual basis because the victim was a 26-year-old adult woman. The Attorney General concedes that the victim was an adult at the time of the charged offenses, but argues that the plea is not subject to appellate review because defendant failed to procure a certificate of probable cause and, in any event, defendant is estopped from challenging the validity of the plea. Defendant does not assert otherwise and appears to limit his challenge on appeal to the five-year state prison sentence he received….[W]e are not bound by the positions of the parties.”
Under Penal Code §1237.5, “[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere” unless the trial judge has signed a certificate of probable cause—which San Mateo Superior Court Judge Jeffrey Finigan declined to so in Richardson’s case. But, Jackson noted, that does not bar writ relief, pointing out that in the 1984 case of People v. Jerome, the lack of a certificate of probable cause did not deter the court from invalidating a conviction, pursuant to a guilty plea, for oral copulation with a person under 14 years where the victim was 15; it treated the appeal as a petition for habeas relief.
Wende Review
Doing the same in the present case is appropriate, she opined, reciting that once the defendant’s appointed counsel filed a Wende (“no issues”) brief—pursuant to the California Supreme Court’s 1979 decision in People v. Wende—the duty devolved upon the appellate court to conduct an independent review of the record.
“In this context, the reviewing court must don two hats—the one as a neutral arbiter, the other as an advocate looking for reversible error,” the justice remarked.
In conducting such a review, Jackson said, “we cannot turn a blind eye to apparent errors discovered during our independent review of the record,” adding:
“To be clear, this is not a case of clerical error or mistake of fact regarding the victim’s age. It is, instead, a case of legal impossibility: Defendant could not have been guilty of trafficking a minor because the victim indisputably was 26 years old.”
No Estoppel
While defendants are estopped from challenging plea bargains from which they derived benefits— “to prevent defendants from playing fast and loose with the judicial system”— estoppel does not come into play in the present context, Jackson wrote. She explained:
“No manipulation or trifling is afoot. The policy considerations attendant to estoppel are designed to protect the functioning and integrity of the appellate court, not to hinder its mandated, independent review under Wende. Clearly, we, as a court, are not estopped from reviewing the validity of the plea.”
The jurist commented:
“During the sentencing hearing, when it became abundantly clear on the record that the victim was ‘27’ years old (an adult and not a minor), the trial court was obligated to ensure that its sentencing decision was not predicated on an invalid plea that was unauthorized by law. It did not do so.
“We do not mean to stifle or discourage creative dispositions in our trial courts, especially where it stems from a desire to reach a fair and equitable result. But we cannot affirm such creativity where it compromises the integrity of the judicial system.”
(The victim was 26 at the time Richardson was arrested at 27 when sentencing took place.)
The opinion directs that seven felony counts that were dismissed as part of the plea bargain be reinstated, with Jackson saying in a footnote:
“It is not lost on us that by this holding there is a possibility that defendant may be subject to increased punishment. We do not make this decision lightly. It is not our intent to discourage appeals by criminal defendants, especially those by indigent defendants. However, when tasked with independently reviewing the entire record for error under Wende, we must fulfill our duty to do so.”
The case is People v. Richardson, 2021 S.O.S. 2522.
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