Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. SCD218735 Kerry Wells, Judge.
HUFFMAN, J.
The trial court sentenced Emmett Rambo to two years in prison after he entered a guilty plea. The plea agreement indicates Rambo pleaded guilty to corporal injury to a spouse under Penal Code section 273.5, subdivision (a), and admitted an allegation that he inflicted great bodily injury within the meaning of section 1192.7, subdivision (c)(8). Due to a dispute over whether Rambo had been sentenced to prison for violating probation in two prior cases, the parties stipulated to a sentence of 365 days in county jail if had he not been sentenced to prison in those prior cases, or a sentence of two years concurrent with the prison sentence for the prior cases had he in fact been sentenced in them. Because Rambo had been sentenced in the prior cases, the court in this case imposed the latter sentence. After the trial court sentenced Rambo, he requested a certificate of probable cause to appeal. The trial court denied the request.
All further statutory references are to the Penal Code, unless otherwise indicated.
Rambo appeals the finding that he inflicted great bodily injury on the victim under section 1192.7, subdivision (c)(8). He claims (1) he agreed to admit the infliction of great bodily injury within the meaning of section 1192.7, subdivision (c)(8) only if he had not been sentenced to prison for the violation of probation in his earlier cases, and (2) his appeal of that issue after the guilty plea does not require a certificate of probable cause because he does not challenge the validity of the plea, but rather challenges matters that arose after the plea. We conclude Rambo's appeal of the trial court's true finding of the section 1192.7, subdivision (c)(8) allegation amounts to a challenge of the validity of the plea agreement. Consequently, we do not have jurisdiction to hear this appeal under section 1237.5. We dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Because this case did not proceed to trial, we rely on the testimony from the preliminary hearing for the factual background.
On the night of January 31, 2009, Rambo and his wife, Aretha Rambo, were staying in a homeless encampment in San Diego. When Aretha refused to perform sexual acts for him, he became angry, accused her of cheating, and began beating her. She explained that he sat on her, bent her neck backward, and repeatedly smashed his head into her face, all while threatening to kill her. At one point during the night, she struck back, making contact with his left eye. The beating took place over a period of hours, ending sometime after daybreak when Rambo left the scene.
Shortly after his departure, Aretha left the camp in search of help and found two homeless men, who called an ambulance for her. She spent one week in the hospital, suffering from fractures in the orbitals of both eyes, a nasal bone fracture, and lacerations inside her lip and around her right eye. Weeks later, she continued to feel numbness in her face and had vision problems from the incident.
After Rambo left the scene, he called 911 to report his own injury. He told responding police officers that he had been sleeping when his wife hit him, and he fought her off of him. Based on his further statement that the blood covering him likely belonged to his wife, the officers arrested Rambo. He was taken to a hospital and treated for a fractured left eye orbital.
Rambo was charged with three counts: (1) mayhem under section 203, and during the course of that offense inflicting great bodily injury within the meaning of both section 1192.7, subdivision (c)(8) and section 12022.7, subdivision (e); (2) corporal injury to a spouse under section 273.5, subdivision (a), and during the course of that offense inflicting great bodily injury within the meaning of both section 1192.7, subdivision (c)(8) and section 12022.7, subdivision (e); and (3) assault by means of force likely to produce great bodily injury under section 245, subdivision (a)(1), and during the course of that offense inflicting great bodily injury within the meaning of both section 1192.7, subdivision (c)(8) and section 12022.7, subdivision (e).
Rambo was appointed a public defender and the case was set for trial April 10, 2009. On that day, the court granted his request to represent himself and continued the case for 60 days. Before the case proceeded to trial, Rambo reached a plea agreement with the People in which Rambo pleaded guilty to count 2, corporal injury to a spouse under section 273.5, subdivision (a), with an allegation of infliction of great bodily injury under section 1192.7, subdivision (c)(8). The parties originally agreed to a sentence of 365 days in county jail.
After Rambo signed the plea form, however, the court discovered a court file from two prior cases sentencing Rambo to four years and four months in prison. At the change of plea hearing, Rambo disputed he had been so sentenced. At the court's suggestion during the hearing, the parties proceeded with the change of plea with the sentence of 365 days in county jail if Rambo had not been so sentenced in the two earlier cases, or a two-year term in prison concurrent with the earlier sentence if Rambo had been so sentenced in those cases. Rambo indicated he understood that to be the sentence, and again stated he pleaded guilty to corporal injury of his spouse and admitted to inflicting great bodily injury upon her within the meaning of section 1192.7, subdivision (c)(8). The court granted the People's motion to dismiss the remainder of the charges, including all of counts 1 and 3 and the great bodily injury enhancement under section 12022.7 charged in count 2. By signing the plea agreement, Rambo waived the right to appeal "any sentence" contained therein.
By the time of the sentencing hearing for the case at issue on appeal, it became clear to the court that Rambo had in fact been sentenced to four years and four months in prison in the two prior cases. The trial court thus sentenced Rambo to two years concurrent with his prior sentences.
Rambo filed a notice of appeal and request for certificate of probable cause. The trial court denied the request. Rambo appeals the great bodily injury finding under section 1192.7, subdivision (c)(8). He argues (1) he agreed to admit inflicting great bodily injury under section 1192.7, subdivision (c)(8) on his wife only if he received the sentence of 365 days in jail, but not if he received the two-year concurrent prison term, and (2) he can appeal that issue without a certificate of probable cause because his appeal does not challenge the validity of the plea and extends only to matters that occurred after the plea agreement.
DISCUSSION
Rambo asks that this court set aside the section 1192.7, subdivision (c)(8) admission in his plea agreement. He claims the lower court's true finding on the allegation violated the terms of the plea agreement. He argues, by making that claim, he does not seek to withdraw the plea, and his appeal of the lower court's acceptance of the admission of the section 1192.7, subdivision (c)(8) allegation in combination with the two-year prison sentence does not amount to an attack on the validity of the plea. Because of the nature of his appeal, he argues he does not need a certificate of probable cause under section 1237.5 to appeal.
Section 1237.5 provides that a defendant may only appeal a judgment of conviction based on a guilty or nolo contendere plea if: "(a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings, " and "(b) [t]he trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court." The purpose of this section is "to discourage and weed out frivolous or vexatious appeals" after plea agreements. (People v. Panizzon (1996) 13 Cal.4th 68, 75 (Panizzon).) California Rules of Court, rule 8.304(b)(4) limits the scope of section 1237.5 by allowing appeals after guilty or nolo contendere pleas for appeals based on "grounds that arose after entry of the plea and do not affect the plea's validity."
California courts have long recognized the defendant's right to appeal, without a certificate of probable cause, issues arising after a plea agreement relating to the degree of the crime or the penalty imposed. (Panizzon, supra, 13 Cal.4th at p. 74.) In addition, the defendant may claim on appeal the trial court failed to carry out the terms of the plea agreement, without first obtaining a certificate of probable cause. (See People v. Johnson (2009) 47 Cal.4th 668, 679, fn. 5; see also People v. Brown (2007) 147 Cal.App.4th 1213, 1220.) If, however, the appeal of a sentence or other matter "in substance" challenges the validity of the plea, regardless of what the defendant purports to challenge, the reviewing court has jurisdiction to decide the merits of the appeal only if the defendant obtained a certificate of probable cause. (Panizzon, supra, at p. 76.) An appeal that "attacks an integral part of the plea" in substance constitutes a challenge to the validity of the plea. (Id. at p. 73.) A defendant's challenge of "the very sentence he negotiated as part of the plea bargain" is an integral part of the plea that in substance attacks the validity of the plea. (Id. at p. 78.) The California Supreme Court explained, "[s]uch an agreed-upon aspect of the sentence cannot be challenged without undermining the plea agreement itself." (Johnson, supra, 47 Cal.4th 668, 678.)
Rambo entered into a plea agreement consisting of two admissions and two possible sentences. He admitted to corporal injury of a spouse under section 273.5, subdivision (a) and the infliction of great bodily injury under section 1192.7, subdivision (c)(8). He agreed to serve a sentence of 365 days in jail, if he did not have a prison sentence for his prior cases, or two years in prison, concurrently with the prison sentence for the prior cases. He now seeks to have the section 1192.7, subdivision (c)(8) allegation set aside based on an understanding of the plea agreement that the trial court would set aside the section 1192.7, subdivision (c)(8) allegation if he were sent to prison. The plea form contains no mention of removing the section 1192.7, subdivision (c)(8) allegation if the trial court imposed a prison sentence, nor does the trial court's conversation with Rambo at the change of plea hearing indicate such an agreement.
Although Rambo argues his appeal only challenges the judge's implementation of the plea agreement, the substance of his appeal actually goes to the validity of the plea agreement. By requesting that this court remove the great bodily injury admission under section 1192.7, subdivision (c)(8), he challenges the exact terms he negotiated as part of his plea agreement. When he pleaded guilty, he agreed to a package of terms, including a particular set of two admissions in exchange for two alternative sentences, depending on his prior cases. The judge sentenced him according to one of the two alternatives explicitly listed on the agreement. By seeking to withdraw one of the admissions leading to that sentence, he attacks an integral part of the plea agreement, and thus challenges the validity of the plea agreement as a whole. Because he challenges the validity of the plea agreement and the trial court denied his request for a certificate of probable cause, we do not have jurisdiction to hear this appeal.
DISPOSITION
The appeal is dismissed.
WE CONCUR McCONNELL, P. J. McINTYRE, J.