People v. Rivera

Opinion

FEINERMAN, P. J.

—Defendant, Jose Rivera, was convicted by the trial court of one count of possessing marijuana for sale. (Health & Saf. Code, § 11359.) He was placed on three years probation on condition, among others, that he spend the first 90 days in county jail. Execution of the jail sentence was stayed pending appeal.

Defendant contends that the trial court erred in allowing him to withdraw his plea of nolo contendere.

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We affirm the judgment.

Procedural Background

Defendant initially pled not guilty to the charge against him. He personally withdrew that plea and entered a plea of nolo contendere. He then

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moved to withdraw his plea of nolo contendere. The trial court granted that motion and the case proceeded to trial without jury.

At the time defendant entered the nolo contendere plea, the court promised to place defendant on felony probation with the understanding that he might not have to serve any jail time. After entering his plea, however, defendant told his probation officer that he was not guilty of the charge and wanted to withdraw the plea and go to trial. He also told the probation officer that his attorney would not listen to him and that he had pleaded nolo contendere because he was afraid of going to jail. Defendant’s attorney confirmed defendant’s desire to withdraw his plea and the court granted the motion, stating that “any plea bargain is called off.”

Discussion

Defendant contends, and the People concede, that the defendant did not personally withdraw his nolo contendere plea. Penal Code section 1018 provides in relevant part that “[ujnless otherwise provided by law every plea must be entered or withdrawn by the defendant himself in open court.” In the instant case, we find that an exception to the requisites of section 1018 exists in the language of Penal Code section 1192.5. That section governs the approval and withdrawal of guilty and nolo contendere pleas and frames the parameters of plea bargains.