Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. SA066131 Scott T. Millington, Judge.
Robert S. Gerstein for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
Defendant, Surekha Weinberg, purports to appeal after she entered into a plea agreement whereby she agreed to waive her right to appeal her sentence. The Attorney General has moved to dismiss her appeal. We set the dismissal issue for oral argument. We dismiss the appeal.
Defendant was charged in a four-count amended information charging her with: murder (Pen. Code, § 187, subd. (a)) (count 1); gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) (count 2); driving under the influence causing injury with a prior conviction (Veh. Code, §§ 23153, subd. (a), 23560) (count 3); driving under the influence with a blood alcohol level exceeding.08 percent alcohol causing injury (Veh. Code, §§ 23153, subd. (b), 23560) (count 4). In counts 3 and 4, it was alleged defendant inflicted great bodily injury on three victims. (Pen. Code, § 12022.7, subd. (a).) Defendant was convicted by a jury as charged in counts 2, 3 and 4. The jury was unable to reach verdict as to the murder charge alleged in count 1.
Defendant later entered into a plea bargain whereby count 1, the murder charge, would be dismissed. The trial court stated: “THE COURT: Calling the Surekha Weinberg matter, SA066131. She’s present in court in custody represented by Mr. Hutton and Mr. Peretz, Ms. Meyers on behalf of The People. Good morning everyone. [¶] And Ms. Weinberg, it’s my understanding – I’ve had a conversation with the attorneys in this matter, and it’s my understanding that The People are going to seek to amend the information to add three violations of Penal Code section 12022.7 GBI allegations, three of them in total as to count 2, and in this matter you would admit those allegations as well, and at least all three of them, and I would sentence you on two of them along with the high term in count 2 for [a] total of 16 years in state prison. The third one I would strike, and the count 3 I would sentence you to a total of 12 years concurrent, and count 4, 12 years, which I would stay pursuant to Penal Code section 654. [¶] Is that your understanding of today’s proceeding? [¶] [DEFENDANT] Yes, Your Honor. [¶] THE COURT: Is it The People’s position to request to amend count 2? MS. MEYERS: Yes, Your Honor. [¶] THE COURT: And I would assume you want to add three allegations of Penal Code section 12022.7... for Chak Hang Ma, Kang Ling Liao and Jia Chi Liao? MS. MEYERS: That is correct, Your Honor.”
Shortly thereafter, the trial court stated: “THE COURT: So the amended information will be amended to reflect those three GBI allegations. The jury having already found the defendant guilty of count 2, what I would do is simply ask her to admit the violations, the GBI’s on those two counts. I’ll also take a waiver just in case. [¶] It’s also my understanding with regards to this disposition, the 16 years that you’ll receive, is that The People would then dismiss count 1 in the interest of justice. It’s also my understanding you would waive your appeal rights as to the trial and the sentencing in this matter. Is that your further understanding as well? [DEFENDANT]: Yes, Your Honor.”
After the trial court orally imposed sentence, the following transpired: “THE COURT: There’s also an understanding pursuant to this agreement, Ms. Weinberg, you would give up your appeal rights in this matter with regards to your trial and the sentence imposed today as well as back on March 20th. You have an absolute right to appeal these matters. However, it’s my understanding that you will give up your right to appeal both the trial and the sentence in this matter pursuant to the plea agreement of 16 years. Do you understand your right to appeal in this matter? [¶] [DEFENDANT]: Yes, Your Honor. [¶] THE COURT: Both the sentence and the trial? [¶] [DEFENDANT]: Yes. [¶] THE COURT: Do you waive and give up your right to appeal both the trial and sentence in this case? [¶] [DEFENDANT]: Yes, Your Honor. [¶] THE COURT: Counsel join? [¶] MR. HUTTON: I do.”
After securing the waiver of the right to appeal issues relating to trial and sentence, the murder charge was dismissed pursuant to Penal Code section 1385, subdivision (a). The parties agreed the trial court could resolve a restitution issue at a later date. Defendant has appealed challenging aspects of her sentence.
The Attorney General contends the appeal must be dismissed as defendant expressly acknowledged the plea bargain required she waive her right to challenge her sentence. The Attorney General argues defendant, with the agreement of her attorney Richard Hutton, waived the right to appeal her sentence. We agree with the Attorney General the appeal must be dismissed as defendant waived the right to appeal her sentence. (People v. Panizzon (1996) 13 Cal.4th 68, 80, 84; People v. Aparicio (1999) 74 Cal.App.4th 286, 292; People v. Nguyen (1993) 13 Cal.App.4th 114, 124.) There is no merit to defendant’s argument the scope of her waiver did not extend to sentencing issues. Here, the record demonstrates defendant expressly waived the right to appeal her sentence. Given the dismissal of defendant’s appeal, we need not address other issues including whether: because she secured dismissal of the murder charge, with its attendant potentiality of a life sentence, she is estopped to challenge her sentence; if we modified the sentence in her favor, the prosecution would be entitled to move to set aside the plea bargain and try her on the murder charge; additional fines plus penalties, fees and a surcharge should have been imposed; and she may litigate any alleged aspects of a legally unauthorized sentence via a habeas corpus petition and the effect of such a challenge on the prosecutor’s right to proceed to trial on the murder charge.
The appeal is dismissed.
We concur: KRIEGLER, J. KUMAR, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.