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People v. Blagrove5/6/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Michael James Blagrove, Jr., appeals from a judgment of conviction entered upon his plea of nolo contendere to two counts of driving under the influence of alcohol or drugs (DUI) with a prior DUI conviction (Veh. Code, §§ 23152, subd. (a), 23550.5, subd. (a) (1) & (2)). Defendant admitted an additional prior DUI violation under section 23550.5 as to one of the counts. He contends that he is entitled to withdraw his plea because the plea was based on the court's illusory promise that he could appeal the denial of his motion pursuant to Penal Code section 995 to set aside the information. The Attorney General concedes that defendant should be given the opportunity to withdraw his plea. We agree and reverse.
I. FACTUAL BACKGROUND
Defendant was charged with three counts of felony DUI with a prior felony DUI conviction, resisting a peace officer in the discharge of his duties, and the misdemeanor offense of driving with a suspended license. In connection with the DUI offense alleged to have occurred on March 15, 2002, the information charged that defendant refused to submit to a chemical test, and that he committed the offense while released from custody on bail. The information further alleged that defendant was convicted of driving with a suspended license within the last five years.
On May 24, 2002, defendant moved to dismiss the information pursuant to Penal Code section 995 on the grounds that there was insufficient evidence to support the felony DUI charges because defendant was not convicted of a prior DUI conviction "that was punished as a felony" within the meaning of section 23550.5. He argued that his prior DUI conviction was a misdemeanor because he was not sentenced to state prison. The People opposed the motion, asserting the prior conviction was punished as a felony in that upon defendant's guilty plea to a felony violation of section 23153, the court suspended imposition of a prison sentence. The trial court denied the motion.
On June 11, 2002, defendant entered a plea of nolo contendere to two counts of felony DUI and admitted the additional section 23550.5 allegation. The plea was entered with the understanding that the court would issue a certificate of probable cause on the denial of his Penal Code section 995 motion. The court dismissed the remaining charges. On July 9, 2002, the court suspended imposition of sentence and placed defendant on probation for three years on conditions including that he serve one year in the county jail, the term of which could be modified to entry and completion of a residential treatment program.
II. DISCUSSION
Defendant contends that he is entitled to withdraw his plea of nolo contendere because the court's promise to issue a certificate of probable cause was illusory since his plea foreclosed appellate review of the denial of the Penal Code section 995 motion. We agree and conclude that defendant must be afforded the opportunity to withdraw his plea.
It is well settled that a defendant's guilty plea precludes appellate review of the denial of a motion pursuant to Penal Code section 995, notwithstanding the trial court's promise to the contrary. (People v. Truman (1992) 6 Cal.App.4th 1816, 1820-1821; People v. Padfield (1982) 136 Cal.App.3d 218, 227.) " defendant `cannot admit the sufficiency of the evidence by plea
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