People v. Preciado

Opinion

BEACH, J.

Daniel J. Preciado appeals from the judgment of conviction entered following his guilty plea to possession for sale of marijuana. (Health & Saf. Code, § 11359.) Pursuant to stipulation, appellant submitted on the transcript of the preliminary hearing a motion to suppress evidence under Penal Code section 1538.5. The motion was denied. Appellant then withdrew his initial plea of not guilty and as a result of a plea bargain pleaded guilty to the information. The only term of this agreement was appellant’s stipulation for the appointment of Giles B. Jackson, a court commissioner, as judge pro tempore for purposes of sentencing. Criminal proceedings were adjourned and

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Commissioner Jackson. committed appellant to the Department of Corrections for a diagnostic study pursuant to Penal Code section 1203.03 and for a supplemental probation report. Before criminal proceedings were resumed, Commissioner Jackson was appointed to the municipal court. The case was assigned to another superior court judge who denied appellant’s application for probation and sentenced him to state prison.

Contention On Appeal:

As in his statement of probable cause, appellant contends that the search and seizure were unlawful and that the superior court erred in sentencing him contrary to the terms of his plea bargain.

Discussion:

Of appellant’s several contentions, the only one which merits discussion in a published opinion is the contention relative to the failure of the court to honor the plea bargain. That contention is meritorious and we reverse the judgment of conviction.

Reviewability on appeal.

A certificate of probable cause pursuant to Penal Code section 1237.5 is usually required to allow an appeal after a plea of guilty. No such certificate was issued here. Nonetheless, the plea bargain issue is recognizable on appeal in this case.

“[SJection 1237.5 does not apply where a defendant does not challenge the original validity of the plea but asserts that errors were committed in proceedings subsequent to the plea for the purpose of determining the penalty to be imposed. [Citations.] This exception is now also expressly recognized in rule 31(d). Because the alleged breach of the plea bargain by the prosecutor occurred after entry of the plea and because it pertains only to sentencing, this claim comes within this exception. [Citations.]”