Filed 11/25/14 P. v. Kohut CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. JONATHAN JOSEPH KOHUT, Defendant and Appellant. D065969

(Super. Ct. No. INF055931)

APPEAL from a judgment of the Superior Court of Riverside County, Richard A. Erwood, Judge. Reversed. Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General; Da ne R. Gillette and Julie L. Garland, Assistant Attorneys General; Charles C. Ra gland and Parag Agrawal, Deputy Attorneys General, for Plaintiff and Respondent.2 In 2012, appellant Jonathan Joseph Kohut pleaded guilty to forced oral copulation (Pen. Code, 1 § 288a, subd. (c)(2), count 1) and for ced sodomy (§ 286, subd. (c)(2), count 2). Kohut admitted a burglar y enhancement on count 1 (§ 667.61, subd. (e)(2)). In exchange, the People dismissed counts of forc ed sexual intercourse (§ 261, subd. (a)(2), count 3), forced oral copulation (§ 288a, subd. (c)(2), count 4), and burglary and gun enhancements on each count (§ 667.61, su bds. (e)(2) & (e)(4)). The court sentenced Kohut to an indeterminate term of 15 years to life on count 1 and an eight-year
concurrent term on count 2. Kohut contends that a condition of his guilty plea was that he be permitted to retain his appeal rights and, therefore, he should be allowed to w ithdraw his guilty plea because of his reliance on that condition. Relying on California v. Trombetta (1984) 467 U.S. 479 ( Trombetta ), Kohut further contends the court abused its discretion when it refused to impose sanctions ba sed on the Riverside County Sh eriff Department's failure to preserve allegedly exculpatory evidence. In light of the trial court's review of sheriff department reports and its finding there was no relevant third part y culpability evidence, Kohut requests we independently review th e same reports. We reverse the judgment because we conclude he was induced to plead guilty by the promise of an illusory right to appeal.

1 All statutory references are to the Pe nal Code unless otherwise indicated.3 FACTUAL AND PROCEDURAL HISTORY The facts regarding the sexual assault are taken from a 2006 sheriff department interview with victim Jane Doe and the pre liminary hearing transcript. In 1996, Doe awakened to find a stranger in her bedroom. The man jump ed on top of her, pinned her to the bed, put a pillow over her face and to ld her to stop screaming or he was going to kill her. The man shoved a blunt object, which Doe believed was a gun, under Doe's jawbone and on her neck. He sat on Doe's ch est with his knees pinning her shoulders. He then forced Doe to orally copulate him, forcibly rape d and sodomized her, and again forced her to orally copulate him. He ejacula ted on Doe's face and ne ck. He put Doe in a closet, took her purse and left. A sexual assault response team (SART) nurse took samples of semen from Doe's body. Doe reported her neck was bruised fro m the blunt object. The SART nurse and a forensic technician photographed Doe's body. In August 2006, Deputy Robert Nagl es and Sergeant Herman Lopez of the Riverside County Sheriff Department lear ned from federal law enforcement authorities that Kohut's blood and saliva samples matc hed the DNA from the semen found during the SART exam. In December 2006, Deputy Na gles and Sergeant Lopez interviewed Kohut, telling him about the DNA results. He started to cry, said he was sorry for what he had done and asked the deputies to apologize to Doe for him. Kohut added something to the effect that, "The poor lady didn't deserve that." At sentencing, the following exchange between the court and counsel took place:4 "[Prosecutor]: [S]o there is an okay in th is case to go ahead and not have the issue with regard to the waiver of the right to appeal. [Kohut] doesn't have to waive it. "The Court: Oh, so you're saying that we have a disposition? " [Prosecutor]: I'm sayi ng we have a disposition. "The Court: Okay. "[Defense Counsel]: This isn't another shoe dropping because I don't think there will be a problem. He'd like immediate sentencing." Kohut signed the felony plea form stating, "As part of this plea, I do not waive any right to appeal that I may have."
DISCUSSION
I. Kohut's Plea Should Be Vacated B ecause It Was Improperly Induced Kohut contends that his guilty plea was improperly induced by the court permitting him to pursue this appeal. "[T]he trial court's acquiescence in a de fendant's expressed intention to appeal is wholly ineffective to confer jurisdiction on th e appellate court if the issue proposed to be raised is in fact not co gnizable on appeal." ( People v. Hernandez (1992) 6 Cal.App.4th 1355, 1361.) Thus, it is improper for a trial court to approve a "plea bargain purporting to provide the otherwise illusory right of appeal" and "[t]he resulting failure to properly advise the defendant of the consequences of his conditio nal plea render[s] the plea bargain itself procedurally defective." ( People v. Lee (1980) 100 Cal.App.3d 715, 718 [plea bargain conditioned on right to appeal denial of speedy trial was fatally defective,5 entitling defendant to withdraw guilty plea].) Issues cognizable on an appeal following a guilty plea are limited to issu es based on "reasonable constitu tional, jurisdictional, or other grounds going to the lega lity of the proceedings" resulti ng in the plea. (§ 1237.5, subd. (a); see also People v. DeVaughn (1977) 18 Cal.3d 889, 896 ( DeVaughn ); People v. Ribero (1971) 4 Cal.3d 55, 60-64 .) Issuance of a certificat e of probable cause "cannot expand the scope of review to include a noncognizable issue." ( People v. Hoffard (1995) 10 Cal.4th 1170, 1178

. ) A defendant may raise on appeal a claim that his plea was invalid because the court induced him to preserve for appeal an issue that was not appealable. In such an instance, the judgment must be reversed be cause the inducement to plead guilty was a misrepresentation of a fundamental nature. ( DeVaughn , supra , 18 Cal.3d at p. 896.) Here, the People represented to the court that Kohut was not required to waive his right to appeal. The court acquiesced in the People and Kohut's agreement that was memorialized in Kohut's plea form specifically stating he did not waive any right to pursue an appeal. The court also issued a certificate of probable cause permitting Kohut to appeal. 2 Thus, the promise from the court was illusory and an improper inducement that voids Kohut's plea. (See DeVaughn , supra , 18 Cal.3d at p. 896.)

2 In the certificate of probable cause, Kohut argued the grou nds for appeal as follows: "Prosecution exceeded the Statute of Limitations per [ Stogner v. California (2003) 539 U.S. 607]. Due proc ess was denied by the failure of prosecution and court to turn over exonerating evidence, to wit: [ Brady v. Maryland (1963) 373 U.S. 83]. Due process and fair trial were denied by court disallowing a third pa rty culpability defense

. [( State v. Holmes (N.C.App. 2002) 562 S.E.2d 26.)] Due process was denied by prosecution's destruction of evidence."6 We are not persuaded by the People's reliance on People v. Hernandez , supra , 6 Cal.App.4th 1355, in which the court of appeal concluded the record contained "no representation by the court that an appeal would be permitted, nor any understanding that defendant's plea was conditioned u pon such an a ssumption." ( Id . at pp. 1360-1361, fn. omitted.) By contrast, here, the prosecutor in formed the court of the condition of Kohut's plea, and it accepted Kohut's plea form that e xplicitly stated Kohut did not waive his right to appeal. Kohut should be given an op portunity to reevaluate hi s guilty plea and withdraw that plea and proceed to tria l if he so desires. ( People v. Bonwit (1985) 173 Cal.App.3d 828, 833, citing People v. Hill (1974) 12 Cal.3d 731, 769, overruled on other grounds in DeVaughn , supra , 18 Cal.3d at p. 896, fn. 5.)
II. The Court Did Not Err in Finding No Bad Faith In the event Kohut decides to go to trial, we offer guidance on an issue likely to arise. At the start of trial, Kohut moved in lim ine, seeking "[an Evid ence Code section] 402 hearing be conducted on the whereabouts of photographs and negatives which have allegedly disappeared in support of a reme dy barring secondary evidence of the items intended to be depicted by said photography." Jennifer Jernegan, a sheriff department forensic technician, testified the photographs had been stored with evidence from other cases in cardboard boxes on th e floor of a storage facilit y connected to the sheriff department's station. Jernegan further tes tified that in either 2005 or 2006, a flood7 destroyed the evidence in this case and other cases. Afterwards, sup port staff disposed of the photographs without knowi ng their evidentiary value. The court provisionally denied Kohut' s motion to exclude secondary evidence regarding the photographs, ruling, "Basically, wh at [Jernegan] testified to is that some support staff were directed to get rid of an ything that was damaged, and they threw out items that they didn't realize until after they were thro wn out that they were items of evidence. And she's gone through the comput er attempting to see whether or not the photographs were entered into the computer . . . . [¶] There is no documentation as to what, in fact, the support staff threw out, bu t what's required is a showing of bad faith that they would realize that this was eviden ce, and they threw it ou t. And they did so with the intent to deprive a de fendant of due process, and that hasn't been shown. So I'm going to deny your motion at this time. If you find out that there ar e digital photographs somewhere that were destroye d, then you can revisit it." Kohut argues that the destruction of evid ence violated his right to due process of law protected by the Fourteenth Amendment. Further, Kohut argues he is entitled to relief because the sheriff depa rtment's inability to preserve the evidence constituted at least gross negligence, whic h amounts to bad faith. Applicable Law The standards for law enforcement's dut y to preserve evidence under the due process clause of the Fourteenth Amendmen t are well established. Law enforcement must preserve evidence "that might be expected to play a significant role in the suspect's defense." ( Trombetta , supra , 467 U.S. at p. 488.) Howeve r, that duty applies "only if8 [the evidence] possesses exculp atory value 'apparent before [it] was destroyed,' and not obtainable 'by other reasonabl y available means.' " ( People v. DePriest (2007) 42 Cal.4th 1, 41 ( DePriest ).) The state's respon sibility is further lim ited when the defendant challenges the failure to preser ve evidence " 'of wh ich no more can be said than that it could have been subjected to tests' " th at might have helped the defense. ( Arizona v. Youngblood (1988) 488 U.S. 51, 57 ( Youngblood ).) If the evidence is only poten tially exculpatory, the defe ndant must show that law enforcement acted in bad faith when destroying it. ( Youngblood , supra , 488 U.S. at pp. 57-58.) Without bad faith, law enforcement's inability to pres erve potentially exculpatory evidence does not violate a defe ndant's due process rights. ( Id. at p. 58

. )
In Youngblood , the court rejected a defendant's due process claim on analogous facts. The defendant in Youngblood argued that the police faile d to properly refrigerate evidence. ( Youngblood , supra , 433 U.S. at p. 55.) The de fendant further argued this failure prevented the defendant from testi ng the evidence to de termine whether the evidence was exculpatory. ( Ibid .) The court in Youngblood rejected the defendant's argument for two reasons. First, " 'the office rs here were acting in "good faith and in accord with their normal practice." ' " ( Youngblood , supra , 433 U.S. at p. 56, citing Trombetta , supra , 467 U.S. at p. 488.) Second, the co urt noted, "the failure of the police to refrigerate the clothing and to perform tests on the semen samples can at worst be described as negligent." ( Youngblood , at p. 58.) Kohut has not shown the photographs had exculpatory value known to the sheriff department when they were destroyed in th e flood. Kohut also does not show how the9 photographs might have benefited his defense. (See Trombetta , supra , 467 U.S. at p. 488; see also DePriest , supra , 42 Cal.4th at p. 41.) Kohut did not demonstrate the sheriff depa rtment acted in bad faith. Rather, the record shows the department's normal practi ce was to store all ev idence in boxes on the floor and not just the photographic evid ence of Doe. Like the police in Youngblood , at most, the sheriff department's storage of the photographic evidence c ould be described as merely negligent. (See Youngblood , supra , 433 U.S. at p. 58.) Further, the flood was an act of nature not attributable to law enfo rcement misdeeds. We conclude the sheriff department did not act in bad faith by stor ing the phot ographs on the storage facility floor. In light of our disposition of this case, we need not address Kohut's contention regarding the trial court's review of law enforcement records.10 DISPOSITION The judgment is reversed and the cause remanded to the Superior Court. If Kohut files a motion to withdraw his guilty plea within 30 days afte r the finality of this opinion, the Superior Court is directed to vacate the gu ilty plea. If no motion is filed within that period, the court is directed to reinstate the judgment.

O'ROURKE, J. WE CONCUR:

McCONNELL, P. J.

HALLER, J.