People v. Jackson CA2/5 ( 2020 )

Filed 12/29/20 P. v. Jackson CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B304102
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA070291)
v.
AL TYRONE JACKSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Charles Chung, Judge. Vacated and remanded
with directions.
Rachel Varnell, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Kenneth C. Byrne, Supervising
Deputy Attorney General, and Christopher G. Sanchez, Deputy
Attorney General, for Plaintiff and Respondent.
Defendant and appellant Al Tyrone Jackson (defendant)
admitted violating the conditions of his probation, but he said he
was admitting the violation because he planned to challenge the
sufficiency of the evidence against him on appeal. The law does
not permit that, but the trial court did not correct defendant or
advise him such an appellate challenge would not be permitted.
The Attorney General concedes defendant is entitled to withdraw
his admission as the result of the court’s failure to correctly
advise defendant, and we agree.
I. BACKGROUND
In 2019, defendant was convicted of assault with a deadly
weapon. By the time of sentencing, defendant had accrued 1,945
custody credits. At the sentencing hearing, the trial court
imposed a ten-year prison term, with the execution of that
sentence suspended, and five years of formal probation.
Defendant was ordered to complete three types of counseling,
including domestic violence counseling.
Later that year, the trial court held a hearing to consider
defendant’s progress on probation. The Probation Department
reported defendant was not in compliance with the terms of his
probation because he enrolled in an unapproved domestic
violence program. The Probation Department recommended
defendant “be found in violation and that probation be revoked
and a suitable sanction be imposed.” The court remanded
defendant into custody pending a probation violation hearing.
At the violation hearing, the trial court indicated—over the
People’s objection—it would sentence defendant to a year in
county jail if he admitted the violation and “waive[d] all back
time,” i.e., all the custody credits he previously earned. The court
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asked defendant if he would agree to waive his custody credits
and defendant replied, “I will waive on the conditions I can file an
appeal”—adding, “Can I do that?” The court responded: “You
can file an appeal no matter what. Yes.” The court then asked
defendant why he wanted to appeal and he replied: “You say that
I didn’t register in a program that was certified and the program
is certified.” The court told defendant he was entitled to contest
the probation violation allegations at a hearing, but defendant
replied he would “just appeal it.” The court responded: “Okay.
Got it. But you still want to admit?” Defendant said, “I’m going
to admit, but I will file an appeal.”
Defendant proceeded to admit the violation and the court
imposed the indicated sentence. Defendant then filed a notice of
appeal, with a request for a certificate of probable cause, which
the court granted.
II. DISCUSSION
Defendant contends, and the Attorney General agrees, the
trial court did not properly advise defendant about his right to
appeal when he admitted violating the terms and conditions of
his probation. We agree the court did not correct defendant’s
mistake of law and we will accordingly remand with directions to
permit defendant to withdraw his admission, if he so chooses.
“When a trial court has agreed to preserve a defendant’s
right to appeal in a manner contrary to law, or has purported to
confer a right to appeal where none exists, and the defendant has
relied on the promise to his detriment” the defendant is entitled
to withdraw his or her plea or admission. (People v. Thurman
(2007) 157 Cal.App.4th 36, 42-43; accord, People v. Coleman
(1977) 72 Cal.App.3d 287, 292-293.) That is what happened here.
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Defendant agreed to admit the probation violation only on the
condition that he could appeal and argue there was in fact no
violation (because the domestic violence program he enrolled in
was approved). That is not permissible (see, e.g., In re Chavez
(2003) 30 Cal.4th 643, 649), but the court did not correct
defendant’s mistaken impression when he directly asked whether
he could take such an appeal. The record therefore shows
defendant admitted the probation violation in reliance on the
court’s faulty advice, and that fatally undermines the judgment.
DISPOSITION
The judgment is vacated and the cause is remanded to the
trial court with directions to permit defendant to withdraw his
admission to the probation violation if he so chooses. If
defendant opts not to withdraw his admission, the trial court
shall reinstate the judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
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