People v. Smith CA3

Filed 8/16/24 P. v. Smith CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Lassen) ----

THE PEOPLE, C099523

Plaintiff and Respondent, (Super. Ct. No. 2021- CR0023302) v.

ROBERT KENDALE SMITH,

Defendant and Appellant.

Defendant Robert Kendale Smith pleaded no contest to murder. In exchange, the prosecution promised defendant that he would retain his right to appeal anything that occurred prior to entering into the plea agreement. Defendant contends he was improperly induced into his plea by an illusory promise and remand is required to allow him to withdraw his plea if he so chooses. The People concede the issue. We agree with defendant and will reverse the judgment.

1

FACTUAL AND PROCEDURAL BACKGROUND An information charged defendant with murder (Pen. Code, § 187, subd. (a) [further undesignated statutory references are to the Penal Code]) and possession of a weapon in prison (§ 4502, subd. (a)). It further alleged a use of a deadly weapon enhancement as to the murder count (§ 12022, subd. (b)(1)) and that defendant had a prior strike conviction (§§ 667, subds. (b)-(i), 1170,12, subds. (c)-(d)). At trial, defendant testified and admitted the prior strike allegation. Before the case went to the jury for deliberation, the prosecution offered defendant a plea agreement. The agreement required defendant to plead no contest to the murder charge and in exchange the trial court would dismiss the prior strike conviction, lowering defendant’s sentence from 50 years to life to 25 years to life. Defendant rejected the offer and the trial court took a brief recess. After the recess, the trial court gave defendant another opportunity to accept the plea offer. Defense counsel conferred with defendant and said to the trial court, “[I]f he pleads no contest, can he still appeal it? I think the answer is yes.” The prosecution responded, “Yes,” and the trial court said, “I believe so.” Defendant agreed to plead no contest to the charges as long as he could appeal the conviction because he “want[ed] to keep [his] appeal rights.” The prosecution offered to put defendant’s request on the record because there was “no doubt in [his] mind that [defendant’s] appellate rights [were] preserved” and agreed to “stipulate that [defendant] has not lost any appellate rights by virtue of his no contest plea.” Defendant then agreed to enter into the plea agreement. During the plea colloquy, defendant stopped the trial court and said, “I got a quick question. Waiving my rights to do all this in my appeal, will I be able to do all this?” The prosecutor said, “Yes,” and the trial court stated, “You’re not waiving your right to appeal.” Defendant’s counsel also explained to defendant that admitting he committed