P. v. Jacobs CA5

Filed 4/24/13 P. v. Jacobs CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F064685 Plaintiff and Respondent, (Super. Ct. No. CRF35556) v.

SARAH MARIE JACOBS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tuolumne County. Eric L. DuTemple, Judge.

Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne LeMon, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

*Before Kane, Acting P.J., Franson, J. and Peña, J.

Defendant Sarah Marie Jacobs pled guilty to one count of selling marijuana (Health & Saf. Code, § 11360, subd. (a)) and one count of possession of marijuana for sale (id., § 11359). She was sentenced to five years’ probation and ordered to serve four months in the county jail in accordance with her plea. Defendant contends and respondent concedes that she must be allowed to withdraw her plea as unenforceable; it was conditioned upon her preserving the right to appeal a pretrial ruling by the trial court. We find defendant’s plea was induced by an unenforceable promise and, therefore, she is entitled to withdraw her plea. PROCEDURAL AND FACTUAL BACKGROUND On August 10, 2011, defendant was charged in an amended information with two counts of marijuana sales and one count of possessing marijuana for sale. The charges were based upon defendant’s operation of Alternative Natural Solutions, a medical marijuana dispensary. On February 27, 2012, at a pretrial hearing, defendant entered into a negotiated disposition of the case. The following exchange took place:

“[DEFENSE COUNSEL]: [Defendant] will plead guilty to Counts I and II. And for that plea, she’ll receive five years felony probation and county lid. The Court also gave an indication of a nine-month cap.

“In addition, [defendant] will not be waiving her right to an appeal, and the District Attorney and I will set some facts on the record. And also, I believe [the prosecutor] will be filing his motion regarding jury instructions.