Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA313347, Rand S. Rubin, Judge.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Phillip Eugene Hughes appeals from the judgment entered following his plea of no contest to inflicting corporal injury on his children’s parent. Hughes was sentenced to a term of four years in prison pursuant to a negotiated disposition.
Hughes contends: (1) the trial court exceeded its jurisdiction by extending the duration of a protective no-contact order until 2012, past the pendency of the criminal proceedings; and (2) because he was not granted probation, the trial court erred by imposing a fine payable to the Domestic Violence Fund. We conclude that Hughes’s challenge to the protective order is not operative because he failed to seek a certificate of probable cause pursuant to Penal Code section 1237.5. As the People concede, Hughes’s second contention has merit. We order the judgment modified accordingly, and otherwise affirm.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Because Hughes pleaded no contest prior to trial, we take the facts from the evidence adduced at the preliminary hearing.
On the evening of November 28, 2006, Hughes attacked his girlfriend, Lois R. While arguing with Lois, appellant pushed her to the ground, attempted to choke her, and kicked her twice on the forehead with the work boots he was wearing. Lois banged on the window to attract attention and ran to the living room, where the couple’s two children were. Hughes followed her, grabbed her by the hair, pushed her onto the couch, and stated, “ ‘What’s going on, and is there cameras in the house, everybody knows my business.’ ” He then punched her in the face twice in the children’s presence. Lois told the children to run. Hughes told them, “ ‘If you run, I’m going to break you in half.’ ”
2. Procedure.
Hughes was charged with inflicting corporal injury on his child’s parent (§ 273.5) and three counts of making criminal threats (§ 422). It was further alleged that Hughes had personally used a dangerous or deadly weapon, work boots, during the infliction of corporal injury offense. Hughes’s Faretta request for self-representation was granted. Prior to trial, Hughes pleaded no contest to violation of section 273.5, subdivision (a) as part of a negotiated disposition. The remaining three counts were dismissed. The trial court sentenced Hughes to a term of four years in prison. It imposed a restitution fine, a suspended parole revocation fine, a court security fee, and a domestic violence fund fine. The court also imposed a protective order pursuant to section 136.2, which prohibited Hughes from having any contact with Lois or the couple’s two children for a period of five years. Hughes appeals.
Faretta v. California (1975) 422 U.S. 806.
DISCUSSION
1. Hughes’s challenge to the protective order is not cognizable on appeal because he has not sought or obtained a certificate of probable cause.
a. Additional facts.
Hughes’s self-representation request was granted prior to trial, on March 1, 2007. Thereafter the parties discussed the possibility of a negotiated disposition but were unable to reach an agreement. On April 10, 2007, the matter was sent to a courtroom for trial. The trial court inquired as to the People’s position regarding a disposition of the case. The parties discussed the People’s offer of four years at some length, including whether the People would consider reducing the proposed sentence, the number of custody and conduct credits to which Hughes would be entitled, and the rate at which he would earn conduct credits. The following colloquy then transpired:
“The Court: . . . [¶] So it’s . . . four years state prison with credit for 132 plus 66, is 198 days credit, if you want that disposition, Sir.”
“[The Prosecutor]: Your Honor, I just also want him to understand that as is in effect now, there is a no contact order to both Lois R. as well as the two children, and that will remain in effect for the period of five years. [¶] If he wants that or if the mother of the children wants that to be amended, they would have to come into court and have that done.
“The Court: Usually if the mother comes in here and tells me they want that lifted, I’ll lift it. You can’t keep people apart who want to be together.
“[The Prosecutor]: Correct.
“The Court: But she would have to come in and ask me to lift that.
“[The Prosecutor]: And I know, so he understands, he was having contact with the children . . . over the phone once he was incarcerated. [¶] My concern was as we got to trial that there would possibly be, you know, something that wasn’t favorable for the children. But after more counseling, if the mother is comfortable with that, the People wouldn’t have an objection because the children are also in counseling.
“The Court: Okay. Mr. Hughes, do you want to accept that offer, or do you want me to have the jury panel come down here?
“The Defendant: Can I think about it? Can I have a moment?
“The Court: Go ahead.
“The Defendant: I would request to lift it off my children if it’s -- if the People have no problem with that because it was an order that was issued specifically through the trial
“The Court: Just a minute. I’ll lift it off your children if your wife comes in and they want it lifted off the children. I certainly think it’s best if a father sees his children. I think it’s very important.” Hughes expressed concern that due to his wife’s work schedule and one of the children’s health problems, it would be difficult for her to come to court. The trial court replied, “At some point your wife will come in, but we’re dealing with at some point down the line.”
Hughes then asked for another estimate of the time he would actually serve if he accepted the People’s offer. The trial court gave another rough estimate. Hughes requested that the trial court consider “mitigating circumstances.” The court stated, “Well, the case is here for trial. There’s been courtrooms to hear settlement offers. This is here for trial. People’s offer is four years. If you want it, we’ll take it. [¶] If you don’t, we’ve got a jury down the hall. We’ll bring them down, we’ll put it in front of a jury, and then ultimately I decide based on everything before me. But right now it’s a question of whether you want the People’s offer or not.” After some further discussion and the trial court’s agreement to recommend that Hughes be placed in fire camp, Hughes stated, “All right. I’ll take it.”
Hughes stated he was unprepared for trial and wanted appointed counsel. The trial court considered and denied his request, concluding it was untimely and Hughes was engaging in gamesmanship.
The prosecutor advised Hughes of his constitutional rights and obtained waivers thereof. Hughes confirmed he was pleading no contest freely and voluntarily. He stipulated to a factual basis for his plea based upon the police report and the evidence adduced at the preliminary hearing. The trial court found Hughes had “expressly, knowingly, understandingly, and intelligently waived his constitutional rights,” and accepted the no contest plea.
In accordance with the negotiated disposition, the trial court sentenced Hughes to a term of four years in prison and recommended he be placed in fire camp. The court stated, “I have received the stay-away order. I take it it’s pursuant to [section] 136.2.” The prosecutor answered affirmatively. The court signed the order without objection by Hughes. The court indicated, “all I would need to hear is if your wife or your girlfriend, whoever it is, comes to court and says you’re out, you’re trying to resolve things, get the family back together, I’d lift it. All I need to do is hear from her.” Hughes indicated he understood.
b. Discussion.
Hughes urges that the protective order imposed by the court must be stricken. He points out that section 136.2 only authorizes protective orders which are temporally limited to the pendency of the criminal proceedings, whereas the protective order at issue here extends until 2012, five years after conclusion of the criminal proceedings. (People v. Stone (2004) 123 Cal.App.4th 153, 159.) He appears to be correct. Stone held that the protective orders authorized by section 136.2 are aimed at protecting victims and witnesses during the pendency of a criminal proceeding, and may not extend beyond that period. (Id. at p. 159.) As the criminal proceeding in this case has concluded, Hughes asserts, the section 136.2 protective order must be stricken. Furthermore, Hughes urges that the order, which forbids him from having any contact with his children for five years, violates his constitutional liberty, privacy, and associational rights.
The standard form used by the trial court to impose the protective order is entitled, “Protective Order in Criminal Proceeding” and references both section 136.2 and section 1203.097, subdivision (a)(2)). Section 1203.097, subdivision (a)(2) provides in pertinent part: “ (a) If a person is granted probation for a crime in which the victim is a person defined in Section 6211 of the Family Code, the terms of probation shall include all of the following: [¶] . . . [¶] (2) A criminal court protective order protecting the victim from further acts of violence, threats, stalking, sexual abuse, and harassment, and, if appropriate, containing residence exclusion or stay-away conditions.” Hughes was not placed on probation, however, and section 1203.097 is therefore inapplicable.
The People, however, correctly point out that because Hughes failed to seek and obtain a certificate of probable cause, his appeal on this issue is inoperative. Section 1237.5 provides that a defendant may not appeal from a judgment of conviction upon a plea of guilty or nolo contendere unless the defendant has applied to the trial court for, and the trial court has executed and filed, a certificate of probable cause for such an appeal. (People v. Shelton (2006) 37 Cal.4th 759, 766; People v. Mendez (1999) 19 Cal.4th 1084, 1094–1095; see Cal. Rules of Court, rule 8.304(b).) “Despite this broad language, [the California Supreme Court has] held that two types of issues may be raised on appeal following a guilty or nolo plea without the need for a certificate: issues relating to the validity of a search and seizure, . . . and issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.” (People v. Buttram (2003) 30 Cal.4th 773, 780; People v. French (2008) 43 Cal.4th 36, 43; People v. Shelton, supra, at p. 766; People v. Panizzon (1996) 13 Cal.4th 68, 74.)
“ ‘In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: “the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.” [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5. [Citations.]’ ” (People v. Buttram, supra, 30 Cal.4th at pp. 781-782.) “Certificate issues encompass matters that attack the validity of the plea, and generally do not include matters occurring after entry of the plea such as a determination of the degree of the crime or the penalty to be imposed. [Citations.] [¶] In contrast, ‘noncertificate’ issues, which do not require a certificate of probable cause, include postplea matters that do not challenge the validity of the plea, including attacks on the trial court’s discretionary sentencing choices left open by the plea agreement. [Citations.]” (People v. Williams (2007) 156 Cal.App.4th 898, 910.)
In People v. Panizzon, supra, 13 Cal.4th 68, the court held that a defendant who agrees to a specific sentence in return for his plea must obtain a certificate of probable cause as a prerequisite to bringing a constitutional challenge to the sentence. In Panizzon, a defendant pled no contest to multiple serious felonies in return for a specified sentence of life with the possibility of parole, plus 12 years. He received that exact sentence, but sought to appeal without obtaining a certificate of probable cause on grounds that the negotiated sentence constituted cruel and unusual punishment. Panizzon concluded a certificate of probable cause was required. (Id. at p. 89.) “Although defendant purports not to contest the validity of the negotiated plea,” but rather a sentence imposed after the plea, “he is in fact challenging the very sentence to which he agreed as part of the plea. Since the challenge attacks an integral part of the plea, it is, in substance, a challenge to the validity of the plea, which requires compliance with” section 1237.5’s certificate requirement. (People v. Panizzon, supra, at p. 73; People v. Buttram, supra, 30 Cal.4th at p. 782.) Panizzon explained, “While a trial court’s error in making certain decisions after a plea may give rise to challenges that do not require compliance with section 1237.5, all the trial court did here was to sentence defendant in accordance with the previously entered plea. The mere fact that this happened a month after the plea . . . is not determinative. Moreover, that the events supposedly giving rise to defendant’s disproportionality claim occurred afterwards likewise is of no consequence. Rather, ‘the crucial issue is what the defendant is challenging.’ [Citation.] . . . [B]y contesting the constitutionality of the very sentence he negotiated as part of the plea bargain, defendant is, in substance, attacking the validity of the plea. For that reason . . . we hold that the certificate requirement of section 1237.5 applies.” (People v. Panizzon, supra, at p. 78; see also People v. Williams, supra, 156 Cal.App.4th at pp. 910-911 [failure to obtain a certificate of probable cause was fatal to contention that court applied wrong sentencing rules, where the claim challenged both the validity of the plea and the specific negotiated sentencing terms of the defendant’s plea bargain, rather than sentencing choices left to the discretion of the court].)
On the other hand, People v. Buttram, supra, 30 Cal.4th 773, held that no certificate of probable cause is required when a defendant who pleads in return for an agreed maximum sentence seeks to challenge the trial court’s exercise of discretion in imposing sentence. (Id. at p. 785.) Buttram explained, “where the terms of the plea agreement leave issues open for resolution by litigation, appellate claims arising within the scope of that litigation do not attack the validity of the plea, and thus do not require a certificate of probable cause.” (Id. at p. 783.) A negotiated plea term which provides for a maximum sentence, rather than a specified sentence, necessarily contemplates further adversary proceedings in which the court must exercise its discretion to determine the appropriate sentence within the constraints of the bargain. (Id. at p. 785.) Buttram reasoned, “[a]n appellate challenge to the exercise of the discretion reserved under the bargain is therefore a postplea sentencing matter extraneous to the plea agreement. Such a claim may rarely have merit, but it does not attack the validity of the plea. For that reason, a probable cause certificate is not required.” (Id. at p. 777; see also People v. French, supra, 43 Cal.4th at p. 45.)
Thus, the issue is whether appellant’s claim amounts to an attack on the validity of the plea. As in Panizzon and unlike in Buttram, Hughes agreed to a specified sentence of four years, with the condition that the protective order would remain in effect for five years. Contrary to Hughes’s assertion that “there was no specific agreement concerning the protective order,” as the colloquy set forth above demonstrates, the parties discussed the protective order as a component of the plea agreement. In the midst of the parties’ plea discussions, the prosecutor stated that “[t]here is a no contact order” that “will remain in effect for the period of five years.” The trial court then asked whether Hughes wished to accept the offer. Hughes asked to “think about it.” Immediately thereafter, Hughes requested that the protective order be lifted, but did not raise any legal objections to it. The parties continued discussing other aspects of the plea offer, and Hughes indicated he would accept the proffered bargain. Thus, it is clear the parties intended, and Hughes understood, that the protective order was a condition of the plea. (See People v. Shelton, supra, 37 Cal.4th at p. 767 [“A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] ‘The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties”].) “The parties to a plea agreement are free to make any lawful bargain they choose, and the exact bargain they make affects whether a subsequent appeal, in substance, is an attack on the validity of the plea.” (People v. Buttram, supra, 30 Cal.4th at p. 785.)
Thus, because the protective order was a condition encompassed by the plea agreement, by imposing it the trial court did nothing more than sentence Hughes in accordance with the previously entered plea. (See People v. Panizzon, supra, 13 Cal.4th at p. 78.) Whether to impose the protective order, or its terms, were not issues left open by the plea agreement, nor were further adversary proceedings anticipated in regard to it. (Cf. People v. Buttram, supra, 30 Cal.4th at pp. 783, 785.) Imposition of the protective order was a term of the negotiated sentence, not an extraneous postplea sentencing matter, and a challenge to the protective order is therefore a challenge to the validity of the plea. A “ ‘challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself’ and thus requires a certificate of probable cause.” (People v. Shelton, supra, 37 Cal.4th at p. 759; People v. Panizzon, supra, at p. 79; People v. McNight (1985) 171 Cal.App.3d 620, 624.) Absent a certificate of probable cause, we may not entertain the portion of Hughes’s appeal challenging imposition of the protective order. (People v. Shelton, supra, at p. 769; People v. Panizzon, supra, at p. 73; People v. Navarro (2008) 161 Cal.App.4th 1100, 1105.)
Nor are we persuaded by Hughes’s contention that because the protective order amounted to an unauthorized sentence, no certificate of probable cause was required. Even if the absence of a certificate of probable cause was not fatal to Hughes’s argument, “[t]he rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below is itself subject to an exception: Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process.” (People v. Hester (2000) 22 Cal.4th 290, 295; People v. Buttram, supra, 30 Cal.4th at p. 783.)
Because of our conclusion that the portion of Hughes’s appeal challenging the protective order is inoperative, we need not reach the People’s contentions that Hughes waived the claim by failure to object below, that Stone was wrongly decided, and that the trial court had inherent authority, apart from section 136.2, to impose the protective order.
2. The $400 Domestic Violence Fund fee must be stricken.
Hughes contends imposition of the $400 fine payable to the Domestic Violence Fund was error because section 1203.097, subdivision (a)(5), applies only to defendants who are placed on probation. As the People concede, Hughes is correct. Section 1203.097 provides in pertinent part: “(a) If a person is granted probation for a crime in which the victim is a person defined in Section 6211 of the Family Code, the terms of probation shall include all of the following: [¶] . . . [¶] (5) A minimum payment by the defendant of four hundred dollars ($400) to be disbursed as specified in this paragraph [i.e., to the Domestic Violence Fund].” Hughes, however, was not placed on probation and therefore section 1203.097 is inapplicable to him. The People concede that there “does not appear to be any provision authorizing the imposition of a domestic violence fee when a defendant is sentenced to prison.” We accept the People’s concession and accordingly order the $400 fine stricken.
Unlike Hughes’s challenge to the protective order, his challenge to the $400 fine is cognizable on appeal without a certificate of probable cause. Hughes did not agree to the $400 fine as a condition of his plea. Instead, he was informed after he had agreed to the disposition, that the $400 fee would be a consequence of his plea. Imposition of the fine was therefore a postplea matter unrelated to the validity of the plea. (See People v. Williams, supra, 156 Cal.App.4th at p. 910.) Where a defendant purports to appeal “certificate” issues – i.e., those requiring a certificate of probable cause – along with “noncertificate” issues, we may address the noncertificate issues. (See People v. Mendez, supra, 19 Cal.4th at p. 1088; People v. Manriquez (1993) 18 Cal.App.4th 1167, 1169.)
DISPOSITION
The $400 fine payable to the Domestic Violence Fund is ordered stricken. The clerk of the superior court is ordered to prepare a corrected abstract of judgment and to forward a copy to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: KLEIN, P. J., KITCHING, J.