People v. Richardson

Filed 6/10/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A157529
v.
DEVONNE LAVERT (San Mateo County
RICHARDSON, Super. Ct. No. 18SF009740A)
Defendant and Appellant.
INTRODUCTION
Plea bargaining is essential to the efficient and fair operation of the
justice system. Plea bargains provide a method of disposing of criminal
prosecutions through guilty or no contest pleas by a defendant in return for a
reciprocal benefit, generally consisting of less punishment than if he or she
were convicted of all the charged offenses. Despite its inherent flexibility, the
plea bargaining process does not give unfettered discretion to the prosecution
and the trial court. The law requires that any negotiated plea must have a
factual basis. However, in this case the negotiated plea was no more valid
than a no contest plea to murder where the victim is still alive.
Defendant Devonne Lavert Richardson pleaded no contest to one count
of human trafficking of a minor for a sex act (Pen. Code, § 236.1, subd.
(c)(1)),1 but the victim was 26 years old. In exchange for the plea, the
1 All further undesignated statutory references are to the Penal Code.
1
remaining felony charges were dismissed. The trial court denied defendant’s
request for probation and imposed a five-year state prison term allowed
under the plea agreement.
Defendant filed a timely notice of appeal challenging his sentence and
the validity of his plea. Defendant requested a certificate of probable cause
based on “the sentence he received in the case.” Defendant did not obtain a
certificate of probable cause.
After defendant’s court-appointed counsel filed a brief raising no issues
and seeking review pursuant to People v. Wende (1979) 25 Cal.3d 436(Wende),2 we requested briefing on whether defendant’s failure to obtain a
certificate of probable cause precluded defendant’s appeal and whether the
trial court acted in excess of its jurisdiction when it approved a plea bargain
for human trafficking of a minor for a sex act (§ 236.1, subd. (c)(1)) because it
was undisputed that the victim was an adult. We reverse.
BACKGROUND
A. Facts3
On August 18, 2018, the Redwood City Police Department responded to
a call from a concerned citizen about a fight between a man and a woman in a
parking lot. The responding officer spoke to the female (identified in the
record as “Confidential Victim” or “CV”), who denied any altercation with the
male (later identified as defendant). The officer did not notice any visible
signs of injury, and CV denied any injury and refused medical attention.
2 Defendant was informed of his right to file a supplemental brief and
did not do so.
3The facts are taken from defendant’s preliminary hearing and
presentence report.
2
Because CV had no safe place to go, she agreed to be taken to First Chance in
Burlingame.
The next morning, CV told a counselor at First Chance that she had
fled from defendant, who was her pimp and was driving her to a “ ‘date.’ ”
When CV told defendant that she would not go through with the date,
defendant grabbed her by the neck and threw her to the ground. When he
noticed that people were watching, defendant drove off with CV’s purse and
cell phone. Based on this report, the police were called and CV provided a
statement.
CV first met defendant at an Airbnb in Stockton on August 1, 2018. At
the time, CV was 26 years old. Defendant promised her that if she left with
him he would take care of her financially and they would eventually find a
place to stay. She left the Airbnb with defendant and they drove to
Sacramento.
Once in Sacramento, defendant and CV had sex in defendant’s car.
Defendant told CV that she now belonged to him. He told CV that she “had
to walk the blade,” which meant to walk in an area of the city where “johns”
(men looking for sex workers)4 would go to hire sex workers. She would need
to work as a sex worker to make money, and in return defendant would
provide a place to stay, food, transportation, and protection.
Defendant also told CV that she would have to take nude photographs
of herself for defendant to post online. CV told defendant that she did not
want to take such photographs because she was afraid that her parents or
someone she knew would see them, but defendant told her that in order for
4 Throughout this opinion we refer to “sex workers” and “sex work” in
lieu of prostitutes and prostitution, except where the statutory language
provides otherwise.
3
her to eat, she would need to take the photographs. She complied. Although
CV did not want to engage in sex work for defendant, she did so because she
was addicted to methamphetamine and needed a way to support her
addiction. Defendant also had her cell phone, her personal identification, and
the naked pictures; she feared he would send the pictures to all her phone
contacts, including her parents.
CV related that she had five or six transactions with men she met
while walking the blade in Sacramento. In each case, defendant, who drove
CV to the area, kept all the money. CV was instructed never to identify him
to any authority figure as her pimp.
After about a week in Sacramento, CV left defendant and did not
return to him after walking the blade. However, CV continued working as a
sex worker and walking the blade on her own until defendant found her a
week later. CV agreed to go back to defendant because he apologized to her
and told her he would not “make her do things” any longer and her life would
be better. She also went back because defendant still had her cell phone and
the naked pictures.
On August 17, 2018, defendant and CV traveled to San Francisco,
where defendant again wanted CV to walk the blade. On the morning of
August 18, 2018, defendant told CV that they had an “outcall” (a date) in
Redwood City. Defendant drove CV to a street corner in Redwood City and
told her to wait for the customer. CV waited, but the customer did not arrive
so she returned to defendant’s car. Defendant would not let her back in the
car and told her to return to the corner. CV reached into the car and grabbed
her purse. Defendant got out of the car and grabbed CV by the neck, hitting
her with her purse and throwing her to the ground, where he began kicking
her in the face and head. When defendant noticed that bystanders were
4
watching, he stopped the assault and drove off, still in possession of CV’s
purse.
Eventually, defendant was arrested on August 23, 2018.
B. Charges, Plea, and Sentencing
On November 16, 2018, defendant was charged by information with
seven felonies, to wit: human trafficking (§ 236.1, subd. (b) [count 1]); second
degree robbery (§ 212.5, subd. (c) [count 2]); living and deriving support and
maintenance from the earnings of a person known to defendant to be a
prostitute (§ 266H, subd. (a) [counts 3 & 5]); unlawfully and by threats of
violence persuading and encouraging another person to become a prostitute
(§ 266I, subd. (a)(2) [counts 4 & 6]); and assault by means of force likely to
produce great bodily injury (§ 245, subd. (a)(4) [count 7]). On November 20,
2018, defendant pleaded not guilty to all charges.
Although it was understood that the victim (born in October 1991) was
an adult at the time of the charged crimes, an amended information was filed
on March 1, 2019, adding count 8, which alleged human trafficking of a minor
for a sex act (§ 236.1, subd. (c)(1)). Pursuant to a negotiated disposition
entered on the same date, defendant pleaded no contest to count 8 of the
amended information. In exchange for the plea, all other charges were
dismissed and the maximum state prison term to be imposed was five years.
At the change of plea hearing, the trial court confirmed that defendant
understood the nature of the charge against him, as well as the rights he was
waiving by pleading no contest. With respect to the factual basis, the court
asked whether defense counsel would “stipulate to a factual basis[.]” Defense
counsel replied, “I do based on speaking with my client.” Accepting the plea,
the court stated, “Mr. Richardson has made a free, knowing, voluntary, and
intelligent waiver of his rights. Based upon that his [sic] plea and the factual
5
basis, I will find you guilty of the charge in Count 8 [human trafficking of a
minor for sex] . . . .”
In the sentencing memorandum, the district attorney explained,
“Despite the Defendant’s lack of a significant criminal record, the People do
believe that this is a prison case. The People conceded that the acts in this
case did not merit 8 years in prison and thus purposefully offered Defendant
a count that reduced his minimum exposure from 8 years to 5.”5
At the sentencing hearing, the district attorney read a letter from CV
detailing the “ ‘fear, violence, manipulation, and degradation [defendant] put
[her] through.’ ” CV urged the court to give defendant the “ ‘maximum
possible sentence.’ ” CV’s mother also testified about the pain and anguish of
not knowing CV’s whereabouts. CV’s mother explained that, besides her
daughter’s physical wounds, CV struggled with “PTSD, depression, and
anxiety.” Defense counsel argued that defendant was a good candidate for
probation given the facts that he had no prior convictions, was 29 years old,
and had been gainfully employed in the past. The court also heard from
defendant, who told the court that he should have known better, he was
disappointed in himself, and he was “sorry for what [CV] . . . went through.”
At the close of the testimony, the court stated that “the seriousness of
the offense is so extreme and the victim impact [is] so extreme that the Court
can’t really justify probation based on the criteria” it was required to
consider. When the court stated that it was a significant factor that “the
victim was under 18” years old, the district attorney immediately clarified,
5We observe human trafficking of a minor for sex carries lighter
penalties (§ 236.1, subd. (c)(1) [5, 8, or 12 years]) than human trafficking of
an adult for sex (§ 236.1, subd. (b) [8, 14, or 20 years]). The policy merits of
this sentencing structure are questions for the Legislature that are beyond
the scope of this appeal.
6
“No, she wasn’t, your Honor.” The district attorney explained the victim was
“27” years old6 and the plea had been offered “in order to reduce the count
from [the] eight-year minimum triad.” Following the clarification of CV’s age,
the court determined that probation was inappropriate “given the seriousness
of the offense and the impact on the victim.”
DISCUSSION
A. Scope of Appellate Review and Decision to Treat Appeal as a
Petition For Habeas Corpus
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. As we explain, we
are not bound by the positions of the parties.
Ordinarily, “[i]n our adversary system, in both civil and criminal cases,
in the first instance and on appeal, we follow the principle of party
presentation. That is, we rely on the parties to frame the issues for decision
and assign to courts the role of neutral arbiter of matters the parties
present. . . . [A]s a general rule, ‘[o]ur adversary system is designed around
the premise that the parties know what is best for them, and are responsible
for advancing the facts and arguments entitling them to relief.’ ” (Greenlaw
6 CV was 26 years old at the time of charged offenses and was 27 years
old at the time of sentencing.
7
v. United States (2008) 554 U.S. 237, 243–244, 1st & 2d bracketed insertions
added.) In this regard, courts are loath to address issues that have not been
raised by the parties. (See, e.g., People v. Bryant, Smith and Wheeler (2014)
60 Cal.4th 335, 426–427; People v. Fuiava (2012) 53 Cal.4th 622, 727; People
v. McKinnon (2011) 52 Cal.4th 610, 640–642 & fn. 20; People v. Redd (2010)
48 Cal.4th 691, 730–731 & fn. 19; People v. Dykes (2009) 46 Cal.4th 731, 757;
People v. Benavides (2005) 35 Cal.4th 69, 115.)
Nevertheless, in criminal appeals, there is a notable exception to these
established tenets when a Wende or “no issue” brief has been filed. Following
the filing of a Wende brief, an appellate court is required to independently
review the record for error. (Wende, supra, 25 Cal.3d at pp. 441–442.) 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.7
Thus, as an appellate court tasked with Wende review, we cannot turn
a blind eye to apparent errors discovered during our independent review of
the record. 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:
7To be sure, Wende is not without its critics. (See, e.g., Wende, supra,
25 Cal.3d at pp. 443–444 (conc. & dis. opn. of Clark, J.); Conservatorship of
Ben C. (2007) 40 Cal.4th 529, 543; People v. Hackett (1995) 36 Cal.App.4th
1297, 1303–1305; People v. Johnson (1981) 123 Cal.App.3d 106, 111; People v.
Von Staich (1980) 101 Cal.App.3d 172, 173–175; see also Kelso, A Report on
the California Appellate System (1994) 45 Hastings L.J. 433, 460–463.)
Nevertheless, Wende remains good law and we are bound to follow it. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; see Smith v.
Robbins (2000) 528 U.S. 259, 278–279 [upholding constitutionality of Wende
procedures].)
8
Defendant could not have been guilty of trafficking a minor because the
victim indisputably was 26 years old.8
Nevertheless, “ ‘[a]fter [a no contest] plea the only issues which may be
considered on appeal are those based upon constitutional, jurisdictional, or
other grounds going to the legality of the proceedings and those only when
the statutory requisites of . . . section 1237.5 are fulfilled.’ [Citation.]
However, in rare cases, because of the jurisdictional challenge involved and
the inherent incurable defect in the prosecution, an appellate court may
appropriately treat a barred appeal as a petition for writ of habeas corpus.
[Citations.]” (People v. Jerome (1984) 160 Cal.App.3d 1087, 1094–1095
(Jerome).)
For example, in Jerome, supra, 160 Cal.App.3d at pages 1093–1095,
notwithstanding the failure to procure a certificate of probable cause, the
court treated the appeal as a habeas corpus petition where the defendant
argued his guilty plea to oral copulation with a person under 14 years of age
was fatally defective because the complaint expressly alleged the victim was
15 years old. The court held, “Since it was legally impossible to commit the
charged crime against the overaged victim, the trial court acted in excess of
its jurisdiction when it imposed sentence for that crime.” (Id. at p. 1094.)
Similarly, in People v. Ellis (1987) 195 Cal.App.3d 334, 338 (Ellis), the court
reached the merits of a claim where the trial court acted in excess of its
jurisdiction when it imposed a serious felony enhancement. Treating the
appeal as a petition for writ of habeas corpus, the Ellis court held, “A
defendant cannot lawfully admit in the trial court that a felony committed in
another jurisdiction includes all of the elements of a California serious felony
8California defines a “minor” as a person not of the age of majority,
which is 18 years old. (Fam. Code, § 6500.)
9
when, as a matter of law, it does not.” (Id. at p. 339, italics omitted.) Citing
Jerome, the court concluded that imposition of a prior serious felony
enhancement (§ 667, subd. (a)) was an unlawful act in excess of the trial
court’s jurisdiction. (Ellis, at p. 342.)
“ ‘Where, as here, the record shows without doubt that a defendant has
pleaded guilty to a crime which he did not commit, the courts should hesitate
to apply technical rules to prevent such defendant from obtaining relief.’ (In
re Scruggs (1971) 15 Cal.App.3d 290, 294 [citation].)” (Jerome, supra, 160
Cal.App.3d at p. 1095.)9 Guided by that admonition, we deem this to be a
proper case to treat this appeal as a petition for writ of habeas corpus. We
therefore now turn to the issue of whether estoppel prevents our review of the
plea bargain reached in the trial court.
B. Public policy considerations do not favor estoppel in this case.
Whether the doctrine of estoppel applies to actions in excess of a trial
court’s jurisdiction requires “a weighing of equities in the particular case, the
effect of estoppel on the functioning of the courts, and considerations of public
policy.” (People v. Ford (2015) 61 Cal.4th 282, 287.) Given the paramount
importance of the trial court’s jurisdiction, we pause to note the difference
between an act of the trial court undertaken without jurisdiction in the
fundamental sense and an act undertaken in excess of jurisdiction, i.e.,
beyond statutory authority. As the California Supreme Court explains in
Ford, “A court lacks jurisdiction in a fundamental sense when it has no
authority at all over the subject matter or the parties, or when it lacks any
power to hear or determine the case. . . . [¶] Even when a court has
fundamental jurisdiction, however, the Constitution, a statute, or relevant
9Here, however, as we discuss in further detail post, defendant is not
seeking relief from the plea.
10
case law may constrain the court to act only in a particular manner, or
subject to certain limitations. . . . Because an ordinary act in excess of
jurisdiction does not negate a court’s fundamental jurisdiction to hear the
matter altogether [citation], such a ruling is treated as valid until set aside.
[Citation.] A party may be precluded from seeking to set aside such a ruling
because of waiver, estoppel, or the passage of time.” (Id. at pp. 286–287.) In
other words, “where fundamental jurisdiction [is] lacking, it [cannot] be
conferred by consent or estoppel, whereas consent or estoppel [can] supply
jurisdiction for an act undertaken by the trial court merely in excess of its
statutory power.” (Ellis, supra, 195 Cal.App.3d at p. 343.)
Here, it is manifest that the trial court’s error is premised on an excess
of jurisdiction, not on a lack of fundamental jurisdiction. Clearly, the trial
court had subject matter jurisdiction to hear and determine the case. The
error was in the acceptance of an unauthorized and illegal plea bargain.
Although defendant does not seek to withdraw his plea, our independent
review of the record brings the validity of the plea bargain to the forefront of
this appeal. Consequently, we now examine whether estoppel prevents our
review of that bargain.
Whether estoppel applies depends on the importance of the irregularity
not only to the parties but also to the functioning and integrity of the courts.
(Ellis, supra, 195 Cal.App.3d at pp. 343–344.) Generally, in the context of
plea bargains, the purpose of estoppel is to prevent defendants from playing
fast and loose with the judicial system. “[T]he presence of a plea bargain
injects other policy considerations into the calculus[,]” namely, preventing
defendants from unfairly manipulating the system to obtain punishment far
less than that called for by the statutes applicable to their conduct. (Id. at p.
345.)
11
In People v. Hester (2000) 22 Cal.4th 290, our Supreme Court
determined that “defendants are estopped from complaining of sentences to
which they agreed.” (Id. at p. 295.) “Where the defendants have pleaded
guilty in return for a specified sentence, appellate courts will not find error
even though the trial court acted in excess of jurisdiction in reaching that
figure, so long as the trial court did not lack fundamental jurisdiction. The
rationale behind this policy is that defendants who have received the benefit
of their bargain should not be allowed to trifle with the courts by attempting
to better the bargain through the appellate process. [Citations.]” (Ibid.,
italics omitted.)
However, as we have already discussed, defendant is not challenging
the validity of the plea. Rather, we address this issue as part of our
independent review required under Wende. 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.
C. The plea bargain was a legal fiction.
The root of the problem in this case is that the plea bargain for human
trafficking of a minor for a sex act should never have been offered by the
prosecution or approved by the trial court in the first place. Defendant’s
acquiescence in this improper plea cannot render it valid. (See Alhusainy v.
Superior Court (2006) 143 Cal.App.4th 385, 391 [fact that defendant
consented to and benefited from illegal banishment condition to probation did
not validate improper plea agreement].) Notwithstanding the apparent
intentions of all the concerned parties, the attempt to creatively fashion a
resolution in this case was unauthorized.
12
Under California law, the crime of human trafficking is comprised of
three distinct offenses, which are codified in section 236.1: (1) the
deprivation or violation of the personal liberty of another with the intent to
obtain forced labor or services is punishable by a state prison term of 5, 8, or
12 years (§ 236.1, subd. (a)); (2) the deprivation or violation of the personal
liberty of another with the intent to commit one of several enumerated sexual
offenses is punishable by a state prison term of 8, 14, or 20 years (§ 236.1,
subd. (b)); and (3) causing or attempting to cause a minor to engage in a
commercial sex act with the intent to commit one of several enumerated
sexual offenses is punishable by a state prison term of 5, 8, or 12 years
(§ 236.1, subd. (c)).
In this case, defendant was initially charged with, among other things,
a violation of section 236.1, subdivision (b). Then, by amended information,
the district attorney added an additional count, alleging a violation of section
236.1, subdivision (c) even though the victim was a 26-year-old adult. It is
apparent from the record that the section 236.1, subdivision (c) offense was
added to reduce defendant’s punishment to five years in prison. Despite the
district attorney’s “belief” that defendant’s conduct did not warrant eight
years in prison, the power to prescribe the appropriate punishment for
criminal behavior resides exclusively with the Legislature. (People v. Tanner
(1979) 24 Cal.3d 514, 519, fn. 3.) Not surprisingly, defendant agreed to plead
no contest to one count of section 236.1, subdivision (c), which subjected him
to a five-year minimum—instead of an eight-year minimum—triad, in
exchange for the dismissal of seven felony counts.
“Pursuant to section 1192.5, a trial court is obligated to determine
whether there is a factual basis for a plea of guilty or no contest when that
plea arises from a negotiated resolution of the charges. (See People v.
13
Hoffard [(1995)] 10 Cal.4th [1170,] 1182.) Although not constitutionally
required (id. at p. 1183), such an inquiry furthers constitutional
considerations attending a guilty plea (id. at p. 1183, fn. 11), protects against
the entry of a guilty plea by an innocent defendant, and makes a record in the
event of appellate or collateral attacks on that plea. (Id. at p. 1183.) . . . A
sufficient factual inquiry must be considered a necessary component of the
legality of the proceedings. To decide otherwise would preclude review of the
factual basis for a plea of guilty or no contest thereby frustrating the policies
the statute is intended to advance. . . .
“Although section 1192.5 requires the trial court to satisfy itself there
is a factual basis for the plea, this can be done by having the defendant
describe the conduct or answer questions, by detailing a factual basis, or by
having defense counsel stipulate to a particular document such as the
transcript of a preliminary hearing as providing a factual basis for a plea.
(People v. Holmes (2004) 32 Cal.4th 432, 435–436, 442 [citations].) The trial
court need not obtain an element-by-element factual basis but need only
obtain a prima facie factual basis for the plea. (Id. at p. 442; People v.
Calderon (1991) 232 Cal.App.3d 930, 935 [citation].) ‘[A] trial court possesses
wide discretion in determining whether a sufficient factual basis exists for a
guilty plea. The trial court’s acceptance of the guilty plea, after pursuing an
inquiry to satisfy itself that there is a factual basis for the plea, will be
reversed only for abuse of discretion.’ (Holmes, supra, at p. 443.)” (People v.
Marlin (2004) 124 Cal.App.4th 559, 571–572.)
With respect to the factual basis for the plea in this case, the trial court
did not make an independent inquiry, but instead requested a stipulation
from defense counsel. As indicated, a prima facie factual basis may be
established in this manner. The problem here, however, was that the
14
stipulation was to a factual impossibility. Under such circumstances, the
acceptance of the guilty plea was an abuse of discretion. (Holmes, supra, 32
Cal.4th at p. 443.)
We acknowledge that the high volume and rapid pace of criminal
calendars in our trial courts often necessitates proceeding by stipulation.
These practical realities, however, cannot override the significant policy
considerations attending a guilty plea. It was the trial court’s responsibility
to ensure the plea was valid and if not, to refuse to allow it, despite the
agreement among defendant, his lawyer, and the district attorney to its
terms. (Alhusainy v. Superior Court, supra, 143 Cal.App.4th at p. 394; Ellis,
supra, 195 Cal.App.3d at p. 342; § 1192.5.) The role of the trial court is not to
merely “rubberstamp any agreement submitted by the parties, but [to]
protect[] the public by ensuring the interests of justice are served by the
agreement.” (People v. Andreotti (2001) 91 Cal.App.4th 1263, 1275.) 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.
“Plainly the law has a strong interest in insuring that a defendant is
convicted and punished only if he has done an act proscribed by a criminal
statute. The diverse statutes comprising the criminal law are there for a
reason; they are not like tools above a workbench to be selected by the parties
to a criminal case according to their utility in getting rid of pending cases and
15
without regard to a defendant’s conduct. The interest of the law in insuring a
defendant has violated a specific penal statute is not simply the obvious one
of avoiding the punishment of wholly innocent persons. The law also has an
interest in insuring that, even where a defendant has committed some
criminal act, his criminal conduct matches up with a statute that proscribes
the conduct. Only in this way can the judicial system insure that a
defendant’s criminal conduct will receive the punishment the Legislature
intended. Moreover, convictions for statutory offenses play an important role
in the criminal justice system in identifying the kind of unlawful behavior a
defendant has engaged in. Where there is no correlation between the
defendant’s behavior and the statute serving as the basis of conviction, the
conviction becomes useless to probation officers, correctional authorities, and
law enforcement personnel who use convictions routinely as convenient
diagnostic tools, useful both for the rehabilitation of offenders and [for] the
investigation of new offenses.” (Ellis, supra, 195 Cal.App.3d at p. 345.)
Further, “[i]t should not be necessary to state that the obligation of a
judge is to uphold the law . . . . In exercising its authority, the court cannot
lose sight of its duty to follow the law and maintain the integrity of the
judicial system. The plea in this case directly contravened these principles.”
(Alhusainy v. Superior Court, supra, 143 Cal.App.4th at p. 393.) As an
appellate court charged with upholding the law and ensuring the fair and
equitable resolution of the cases before us, we cannot affirm this sham plea
simply because it inured to defendant’s benefit. To ratify the ultimate result
would compromise the integrity of the judicial system. This we cannot do.
D. Remedies
At the risk of redundancy we repeat: A defendant cannot plead
no contest to human trafficking of a minor for a sex act when the victim is an
adult well over the age of 18. Where, as here, the “ ‘trial court is asked to
16
approve an illegal plea bargain . . . the proper course of action for the court is
clear. It should decline to act in excess of its authority and should refuse to
approve an arrangement under which it is called upon to do so.’ (In re V.B.
(2006) 141 Cal.App.4th 899, 908 [citation]; accord, People v. Soriano (1992) 4
Cal.App.4th 781, 785 [citation] [‘ “Faced with . . . an unlawful plea bargain, a
trial court should withhold approval of the bargain.” ’].)” (People v. John
(2019) 36 Cal.App.5th 168, 176.)
The interests of justice require that the order approving the no contest
plea be set aside and the status quo be restored by reviving the dismissed
counts to either be tried or disposed of in some other legally appropriate
manner.10
DISPOSITION
Treating the appeal as a petition for writ of habeas corpus, the petition
is granted and the judgment is reversed. On remand, the trial court is
directed: (1) to enter an order vacating the no contest plea to count 8; (2) to
amend the information to remove count 8; and (3) to reinstate dismissed
counts 1, 2, 3, 4, 5, 6, and 7. The cause is remanded for proceedings
consistent with the law and this opinion.
10It 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.
17
_________________________
Jackson, J.
WE CONCUR:
_________________________
Petrou, Acting P. J.
_________________________
Wiseman, J.*
A157529/People v. Devonne Lavert Richardson
*Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
18
A157529/People v. Devonne Lavert Richardson
Trial Court: Superior Court of the County of San Mateo
Trial Judge: Jeffrey Finigan, J.
Counsel: David L. Bernstein, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters and
Jeffrey M. Laurence, Assistant Attorneys General,
Rene A. Chacon and Juliet B. Haley, Deputy
Attorneys General, for Plaintiff and Respondent.
19