Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Kazuharu Makino, Judge, Super. Ct. No. 05CF1988.
Stephen S. Buckley and Christian C. Buckley, and Buckley & Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Bradley A. Weinreb, and Eric Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
Jesse Saucedo appeals from the judgment sending him to prison for 9 years, 4 months following his guilty plea to possession of methamphetamine for sale, possession of heroin and street terrorism. (See Health & Saf. Code, §§ 11378, 11350, subd. (a); Pen. Code, § 186.22, subd. (a).) There was also a criminal street gang enhancement attached to the drug offenses. (See Pen. Code, § 186.22, subd. (b).) The maximum penalty for these offenses was nine years, four months, which he acknowledged verbally in court at the time of his guilty plea and in writing on the Tahl form. However, he was hoping to receive the indicated sentence of a new grant of formal probation with the condition of a one-year term in jail, a lenient sentence dependent on his compliance with one very detailed prerequisite laid out in the plea agreement. Saucedo failed to comply with that prerequisite, receiving the alternative sentence of the maximum penalty as set out in the plea agreement.
Simultaneous with the guilty plea in this case, Saucedo also admitted a probation violation in another case. He had been granted probation after imposition of sentence was suspended in the earlier case. With the guilty plea in the present case and the admission of violation on the earlier one, the court informed Saucedo that he would receive either the lenient term of a new grant of formal probation or in the event he failed to appear for sentencing or reoffended in the interim, consecutive maximum sentences on both cases. This would result in a total commitment time of 11 years: 9 years 4 months on the present case and 20 months on the earlier one.
See In re Tahl (1969) 1 Cal.3d 122.
Saucedo contends the trial court erred when it denied his motion to withdraw the guilty plea prior to judgment. The trial court instead enforced the plea agreement, imposing the full maximum penalty because Saucedo committed a new offense during the period in which he was released from custody prior to sentencing. The Attorney General emphasizes that this issue on appeal is an attack on the validity of the plea agreement, which requires the procurement of a certificate of probable cause before review on appeal. (See Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304 (b)(1) & (4).)
Penal Code section 1237.5 provides that “[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty . . . except where both of the following are met: [¶] (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. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”
California Rules of Court, rule 8.304(b)(1) (hereinafter, “rule 8.304”) provides that except “as provided in (4), to appeal from a superior court judgment after a plea of guilty or nolo contendere . . . the defendant must file in that superior court—with the notice of appeal required by (a)—the statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause.” Subdivision (b)(4) of the same rule further provides that the “defendant need not comply with (1) if the notice of appeal states that the appeal is based on: [¶] (A) The denial of a motion to suppress evidence . . .; or [¶] (B) Grounds that arose after entry of the plea and do not affect the plea’s validity.” (Italics added.)
We agree.
DISCUSSION
Saucedo’s plea agreement was quite detailed and specific. He desired to plead guilty to certain charges in the new case—and admit his violation of his probation in the earlier case—although he was a gang member who had violated the terms of his probation by reoffending while on bail. The plea agreement was extremely lenient: He would obtain immediate release and be granted formal probation on the condition he appeared for sentencing and did not reoffend in the interim. He stated on the record at the time of the change of plea that he fully understood the special condition to this plea agreement. However, he failed to abide by this condition because he was cited for—and then convicted of—having a drug pipe, a misdemeanor violation of Health and Safety Code section11364, subdivision (a). The result was that the trial court imposed judgment as it said it would: the maximum penalty. Saucedo attempted to withdraw his guilty plea, arguing that his trial attorney had failed to adequately inform him of all the consequences of his plea, such as the fact that this guilty plea would make him a “two-strikes” felon. The trial court rejected this argument.
Saucedo implored the court for the release because he had “some personal matter” to “take care of” before serving his sentence. After reoffending, he returned to court, was informed the court would impose the term laid out in the plea and then described the reasons for his release: He had a 13-year-old daughter who had absconded from a juvenile detention facility and whom he wished to locate.
At oral argument, Saucedo argued that he desired only to enforce the plea agreement, which, he contended, was inherently ambiguous. Due to the ambiguity, he believed that whether he reoffended or not, he was still entitled to a lesser prison term simply for having appeared for sentencing. We note that Saucedo failed to present this position at the time of his motion to withdraw the plea; and such a motion would not have been made if Saucedo actually wanted to enforce the plea agreement under any interpretation of its terms. Finally, it is also noted that Saucedo did not appear on the date set for sentencing. Rather, the date for sentencing was set for May 1, 2006, but Saucedo had been released from custody per his request and only appeared on May 12, 2006 after he was arrested. Thus, he failed to meet either of the two conditions required for the lenient sentencing terms.
On appeal, a judgment “entered by consent”—whether in a criminal or civil context—is nonappealable. (See 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000), Criminal Appeal, § 8, p. 242.) Thus, an attack on a judgment rendered from a guilty plea must be limited to jurisdictional disputes. That rule is statutorily found in Penal Code section 1237.5 (see fn. 3, ante) with judicial guidelines providing for the only “variation” codified in rule 8.304 (see fn. 4, ante).
The “variation” provided by rule 8.304 is not an exception to the rule that only jurisdictional issues can be appealed following a guilty plea. A notice of appeal can be filed based merely on a sworn statement that “reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings” will be raised. (Pen. Code, § 1237.5, subd. (a).) Nonetheless, the appeal will not become operative “unless the trial court executes and files the certificate of probable cause. However, the requirements of [such] a statement and probable cause are not applicable if the appeal is based solely upon grounds [ ] occurring after entry of the plea that do not challenge [the plea agreement’s] validity . . . .” (6 Witkin & Epstein, supra, § 9, at p. 244, italics added.) Indisputably, Saucedo failed to obtain a certificate of probable cause from the trial court. He never even requested one. The certificate is mandatory, and any attempt to circumvent the requirement is to be “condemn[ed] . . . as frustrating the very purpose of [Penal Code] section 1237.5 to discourage frivolous appeals.” (People v. Panizzon (1996) 13 Cal.4th 68, 89, fn. 15.) That includes couching the appeal in terms of attacking only the denial of a motion to withdraw the guilty plea. (See People v. Emery (2006) 140 Cal.App.4th 560, 562 [“where an appellate challenge to the trial court’s ruling is in substance a challenge to the validity of the defendant’s plea, the appeal is subject to the requirements of Penal Code section 1237.5.”].)
Saucedo replies to the Attorney General’s invocation of the preemptive bar by characterizing his plea as one “after a guilty plea on grounds that arose after the entry of the plea,” relying on People v. Shelton (2006) 37 Cal.4th 759 at 766 and People v. Buttram (2003) 30 Cal.4th 773 at 780. In essence, he contends that those cases eliminate the need for a certificate of probable cause—irrespective of the clear statutory language in Penal Code section 1237.5—whenever the issue espoused in the notice of appeal is characterized as occurring after the entry of the plea.
Issues concerning sentencing may be raised on appeal after a guilty plea if the original plea agreement did not specify a particular sentence and the attack does “‘not challenge [the plea’s] validity.’” (People v. Buttram, supra, 30 Cal.4th at p. 781, original emphasis; see People v. Shelton, supra, 37 Cal.4th at p. 766 [appeal after guilty plea possible without certificate if issue is one “‘regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.’ [Citation.]”].) Saucedo opines that he pleaded guilty, knowing what the maximum sentence might be in the event of his failing to meet its condition, but that the court retained discretion to impose a sentence less than the maximum, although indubitably more than the generous probation grant he would have gotten had he met the condition.
The record fails to support him in this interpretation. When he entered the guilty plea, the trial court declared “if you fail to appear at that sentencing or you commit a new law violation, either a felony or misdemeanor, that you’re going to be sentenced to 9 years 4 months in state prisonon[this case] with an additional 1 year 8 months on[the probation revocation case] that’s going to run consecutive. Total sentence is 11 years; you understand that?” (Italics added.) Saucedo personally replied, “Yes.” Additionally, the Tahl form itself clearly stated, “[i]f [Saucedo] fails to appear or commits a new law violation, either a felony or misdemeanor, [he] will be sentenced to 9 yrs & 4 mos [sic] in state prison with an additional 1 year 8 mos [sic] on [the earlier] case to run consecutive. Total sentence is 11 years. . . .” Saucedo personally initialed this provision, as he also initialed the term waiving his right to appeal “any and all decisions and orders made in my case. . . . [He specifically] waive[d] . . . [his] right to appeal from any legally authorized sentence the court imposes which is within the terms and limits of this plea agreement.”
As the guilty plea specifically delineated the prison term to be imposed in the event he committed a new offense while released on bail pending sentencing, Saucedo may not raise the issue of the imposition of that term on appeal without first obtaining a certificate of probable cause from the trial court. As he has failed to do so, his appeal is dismissed.
WE CONCUR: RYLAARSDAM, J., O’LEARY, J.