Defendant’s negotiated no contest plea, which was based on a legal impossibility, must be vacated and there is no prohibition against a more severe sentence upon remand. In November 2018, Richardson was charged by information with seven felonies, including human trafficking (Pen. Code, § 236.1, subd. (b)). Although all parties understood that the victim was an adult at the time of the offenses, an amended information was filed adding a count alleging human trafficking of a minor for a sex act (§ 236.1, subd. (c)(1)) because the sentencing triad for that offense is less than that for human trafficking. Johnson entered a no contest plea to the added count. He stipulated to a factual basis for the plea. He appealed his sentence and challenged his plea. No certificate of probable cause (CPC) was obtained. A Wende brief was filed. Held: Plea vacated and case remanded. This is a case of legal impossibility: Richardson cannot be guilty of trafficking a minor because the victim was 26 years old at the time of the offense. Pursuant to Penal Code section 1192.5, a trial court must determine whether there is a factual basis for a plea of no contest. This is a necessary component of the legality of the proceedings. While a prima facie factual basis may be established by stipulation, the problem here was that the stipulation was to a factual impossibility. The court’s acceptance of the no contest plea was an abuse of discretion. However, this is an appeal after a no contest plea and no CPC was granted. Nonetheless, “because of the jurisdictional challenge involved and the inherent incurable defect in the prosecution,” the appellate court treated the barred appeal as a petition for writ of habeas corpus and granted it, setting aside the plea.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/A157529.PDF