Opinion
H045600
11-26-2018
THE PEOPLE, Plaintiff and Respondent, v. SOTERO GENARO BECERRA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. Nos. SS160525A, 17CR005972)
I. INTRODUCTION
In 2016, in case No. SS160525A, defendant Sotero Genaro Becerra pleaded no contest to driving or taking a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a)) and admitted having suffered a prior conviction for the same offense (Pen. Code, § 666.5, subd. (a)). The trial court sentenced defendant to jail, suspended execution, and placed defendant on mandatory supervision (see § 1170, subd. (h)(5)).
All further statutory references are to the Penal Code unless otherwise indicated.
In 2018, in case No. 17CR005972, defendant pleaded no contest to driving or taking a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a)) and misdemeanor resisting an officer (§ 148, subd. (a)(1)). He also admitted that he had suffered a prior conviction for the same Vehicle Code offense (§ 666.5, subd. (a)), and that he had served a prior term within the meaning of section 667.5, subdivision (b). Defendant was found in violation of his mandatory supervision in the earlier case.
At a combined sentencing hearing, the trial court revoked and terminated mandatory supervision in the earlier case. In the later case, the court sentenced defendant to five years, which consisted of two years in jail and three years on mandatory supervision (see § 1170, subd. (h)(5)). The court granted 72 days of custody credits.
On appeal, defendant does not raise any issue in the earlier case (No. SS160525A). In the later case (No. 17CR005972), defendant contends that the trial court should have awarded 164 days of custody credits.
For reasons that we will explain, we determine that defendant's claim is not reviewable on appeal because of his waiver of appellate rights in his plea agreement and his failure to obtain a certificate of probable clause. We will therefore dismiss the appeal, but we also order the correction of clerical errors in a minute order and the abstract of judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Offenses in case No. 17CR005972
As defendant was convicted by plea, the summary of his offenses is taken from the probation report, which was based on a police report.
On December 9, 2017, the police found a parked vehicle that had been reported stolen. Defendant walked directly toward the vehicle, but he fled upon observing an officer standing by the vehicle. Defendant ignored commands to stop but was eventually apprehended. Defendant admitted stealing and driving the vehicle.
On December 12, 2017, in case No. 17CR005972, defendant was charged by complaint with driving or taking a vehicle without the owner's consent with four specified prior convictions (Veh. Code, § 10851, subd. (a); § 666.5, subd. (a); count 1), receiving a stolen motor vehicle (§ 496d, subd. (a); count 2), resisting an officer (§ 148, subd. (a)(1); count 3), and misdemeanor driving without a license (Veh. Code, § 12500, subd. (a); count 4). The complaint further alleged that defendant had served three prior terms within the meaning of section 667.5, subdivision (b).
B. Written Waiver of Rights and Plea Agreement
On July 17, 2018, defendant initialed and signed a waiver of rights and plea agreement. Relevant here, defendant initialed paragraph No. 14, regarding the waiver of appellate rights, which stated: "(Appeal and Plea Withdrawal Waiver) I hereby waive and give up all rights regarding state and federal writs and appeals. This includes, but is not limited to, the right to appeal my conviction, the judgment, and any other orders previously issued by this court. I agree not to file any collateral attacks on my conviction or sentence at any time in the future. I further agree not to ask the Court to withdraw my plea for any reason after it is entered."
Defendant also signed provisions that stated the following: "I offer my plea of guilty or no contest freely and voluntarily and of my own accord. . . . [¶] I have read, or have had read to me, this form and have initialed each of the items that applies to my case. I have discussed each item with my attorney. By putting my initials next to the items in this form, I am indicating that I understand and agree with what is stated in each item that I have initialed. . . . I understand each of the rights outlined above and I give up each of them to enter my plea."
Defendant's trial counsel signed a provision in the agreement stating, "I have reviewed this form with my client and have explained each of the items in the form, including the defendant's constitutional rights, to the defendant and have answered all of his or her questions concerning the form and the plea agreement. . . . [¶] I concur in the defendant's decision to waive the above rights and enter this plea, and believe the defendant is doing so knowingly, intelligently, and voluntarily."
Defendant appeared in court the same day that he executed the waiver of rights and plea agreement. The trial court confirmed that defendant had signed, initialed, and understood the form. The court specifically asked defendant: "[D]o you also waive and give up your rights to appeal as indicated by your initials on paragraph 14?" Defendant responded, "Yes."
On motion of the prosecution, count 3 for resisting an officer (§ 148, subd. (a)(1)) was amended to allege a misdemeanor. Defendant pleaded no contest to the amended count and no contest to driving or taking a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a); count 1). He also admitted that he suffered a prior conviction for the same Vehicle Code offense (§ 666.5, subd. (a)), and that he had served a prior term within the meaning of section 667.5, subdivision (b). The remaining counts and allegations were taken under submission for dismissal at the time of sentencing. The trial court accepted defendant's pleas and found that he knowingly, intelligently, and voluntarily waived his rights.
The trial court also signed defendant's written waiver and plea agreement, finding that defendant "expressly, knowingly, understandingly, and intelligently waives [his] constitutional and statutory rights; the defendant's plea, admissions, and waiver of rights are freely and voluntarily made; the defendant understands the nature of the charges and the consequences of the plea and admissions; and that there is a factual basis for the same. The Court accepts the defendant's plea and admissions . . . ."
In the earlier case, No. SS160525A, the trial court found defendant in violation of his mandatory supervision.
C. Sentencing Hearing
A sentencing hearing was held in both cases on February 28, 2018. The trial court, the parties, and the probation department discussed defendant's sentence and the calculation of custody credits. Defendant objected to the court's calculation of custody credits in the later case.
In the later case, the trial court sentenced defendant to five years, which consisted of two years in jail and three years on mandatory supervision (see § 1170, subd. (h)(5)). The court granted 72 days of custody credits, consisting of 36 actual days plus 36 days conduct credit. The remaining counts and allegations were dismissed or stricken. In the earlier case, the court revoked and terminated mandatory supervision.
The minute order (and an amended minute order) from the February 28, 2018 sentencing hearing and the abstract of judgment state that defendant was granted only 33 days of custody credits. The Attorney General acknowledges that the trial court awarded 72 days of custody credits. We will order the minute order and the abstract of judgment corrected.
Defendant filed a notice of appeal regarding both cases, but he did not obtain a certificate of probable cause.
III. DISCUSSION
Defendant contends that the trial court should have awarded 164 days of custody credits in the later case instead of the 72 days that the court granted.
The Attorney General contends that defendant's appeal is barred because he waived his right to appeal and he did not obtain a certificate of probable cause. The Attorney General also argues that the trial court did not err in its calculation of defendant's custody credits.
In reply, defendant contends that his appeal is not barred.
We determine that defendant's waiver of his appellate rights and his failure to obtain a certificate of probable cause are dispositive, and therefore we consider those issues first and do not reach the custody credits issue.
A. General Principles Regarding an Appellate Waiver
"A defendant may waive the right to appeal as part of a plea bargain where the waiver is knowing, intelligent and voluntary. [Citation.]" (People v. Mumm (2002) 98 Cal.App.4th 812, 815 (Mumm), citing People v. Panizzon (1996) 13 Cal.4th 68, 80 (Panizzon).) "[A] waiver that is nonspecific, e.g., 'I waive my appeal rights' or 'I waive my right to appeal any ruling in this case,' " is considered a general waiver. (Panizzon, supra, at p. 85, fn. 11.) "A broad or general waiver of appeal rights ordinarily includes error occurring before but not after the waiver because the defendant could not knowingly and intelligently waive the right to appeal any unforeseen or unknown future error. [Citation.]" (Mumm, supra, at p. 815.)
For example, in People v. Vargas (1993) 13 Cal.App.4th 1653 (Vargas), the defendant's general waiver stated: " 'I waive my appeal rights.' " (Id. at p. 1662.) The defendant "was not specifically informed that he would be also waiving possible future error." (Ibid.) Based on this general waiver, the court determined that "it is not reasonable to conclude that the defendant made a knowing and intelligent waiver of the right to appeal any unforeseen or unknown future error such as the erroneous deduction of conduct credits pursuant to section 4019, subdivision (c), as he has alleged on appeal." (Ibid., fn. omitted.)
Similarly, in People v. Kennedy (2012) 209 Cal.App.4th 385 (Kennedy), this court relied on Vargas and concluded that a defendant who "signed a general waiver of his right to appeal" was "not barred from challenging an alleged misapplication of conduct credits on appeal where . . . the plea agreement and waiver of appellate rights made no mention of conduct credits." (Kennedy, supra, at p. 391.)
B. Necessity of a Certificate of Probable Cause Where Appellate Waiver Is Part of Plea Bargain
In both Vargas and Kennedy, in which it was determined that appellate waivers did not bar the defendants' appellate challenges to custody credits, the issue of whether the defendants needed a certificate of probable cause to pursue their appeals was not addressed. Subsequent to those cases, in People v. Espinoza (2018) 22 Cal.App.5th 794 (Espinoza), the appellate court held that "a defendant who waives the right to appeal as part of a plea agreement must obtain a certificate of probable cause to appeal on any ground covered by the waiver, regardless of whether the claim arose before or after the entry of the plea. Absent such a certificate, the appellate court lacks authority under California Rules of Court, rule 8.304(b) to consider the claim because it is in substance a challenge to the validity of the appellate waiver, and therefore to the validity of the plea." (Id. at p. 797.)
California Rules of Court, rule 8.304 states in part:
"(a) Notice of appeal [¶] . . . [¶]
"(b) Appeal after plea of guilty or nolo contendere or after admission of probation violation
"(1) Except as provided in (4), to appeal from a superior court judgment after a plea of guilty or nolo contendere or after an admission of probation violation, 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. [¶] . . . [¶]
"(4) 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 under Penal Code section 1538.5; or
"(B) Grounds that arose after entry of the plea and do not affect the plea's validity.
"(5) If the defendant's notice of appeal contains a statement under (4), the reviewing court will not consider any issue affecting the validity of the plea unless the defendant also complies with (1)."
In Espinoza, the defendant's written plea form included the following waiver: " 'Even though I will be convicted in this case as a result of my plea, I have the right to appeal the judgment and rulings of the court (e.g.: Penal Code Section 1538.5(m)). I give up my right of appeal.' " (Espinoza, supra, 22 Cal.App.5th at p. 797.) Notwithstanding this appellate waiver, the defendant challenged on appeal the imposition of a probation condition as unreasonable, vague, and overbroad. (Id. at p. 798.) In the notice of appeal, the defendant indicated that the appeal "was 'based on the sentence or other matters occurring after the plea that do not affect the validity of the plea.' " (Ibid.)
The appellate court dismissed the appeal based on the defendant's failure to obtain a certificate of probable cause. (Espinoza, supra, 22 Cal.App.5th at p. 797.) The court observed that the defendant "broadly waived her 'right to appeal the judgment and rulings of the court,' " and that, "[b]y its express terms, the waiver include[d] her right to appeal the imposition of probation terms." (Id. at p. 801.)
The defendant argued that "her waiver was not knowing and intelligent, relying on decisions holding that a waiver of the right to appeal does not necessarily 'bar the appeal of sentencing errors occurring subsequent to the plea.' [Citation.]" (Espinoza, supra, 22 Cal.App.5th at p. 801.) The appellate court acknowledged that, "as a general principle, defendants cannot knowingly and intelligently waive the right to appeal an issue that was not contemplated at the time of the waiver." (Ibid.) The court explained, however, that the defendant's claim that her waiver should not be construed to extend to a challenge of the probation condition because that aspect of the waiver was not knowing and intelligent, "still challenges 'the validity of the waiver . . . and, thus, the plea itself.' [Citation.]" (Id. at p. 802.) "Where a defendant broadly waives the right to appeal as part of a plea, he or she must obtain a certificate of probable cause to appeal on any ground covered by the waiver, not just grounds that were apparent before entry of the plea." (Ibid.)
The appellate court concluded that, "when a defendant waives the right to appeal as part of a plea agreement, and the waiver's terms encompass the issue the defendant wishes to raise, the defendant must obtain a certificate of probable cause to avoid dismissal of the appeal. With a certificate of probable cause in hand, the defendant may argue that the waiver is not enforceable as to the issue raised, whether because the waiver was not knowing and intelligent or for some other reason. And if the reviewing court determines that the waiver is not enforceable, it will reach the merits of the defendant's underlying claim." (Espinoza, supra, 22 Cal.App.5th at p. 803, italics added.)
C. Analysis
In this case, defendant's appellate waiver, which is contained in his written plea agreement, expressly states that he waives "all rights regarding state and federal writs and appeals. This includes, but is not limited to, the right to appeal [his] conviction, the judgment, and any other orders previously issued by this court." (Italics added.) Defendant also agreed "not to file any collateral attacks on [his] conviction or sentence at any time in the future." (Italics added.)
Based on the express language of defendant's appellate waiver, the waiver includes an appeal from the "judgment" or otherwise any attack on the "sentence." "In a criminal case, judgment is rendered when the trial court orally pronounces sentence. [Citations.] A judgment in a criminal case may consist of a fine, a term of imprisonment, or both [citation]." (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.) Further, " '[t]he court imposing a sentence' has responsibility to calculate the exact number of days the defendant has been in custody 'prior to sentencing,' add applicable good behavior credits earned pursuant to section 4019, and reflect the total in the abstract of judgment. [Citations.]" (People v. Buckhalter (2001) 26 Cal.4th 20, 30.) Consequently, in this case, based on the references to the "sentence" and "judgment" in the appellate waiver, defendant's waiver encompasses the instant appeal from the judgment regarding the sentencing court's purported error in calculating custody credits. Because defendant did not obtain a certificate of probable cause, defendant may not challenge the enforceability of the appellate waiver as to the custody credits issue and this court may not reach the merits of the custody credits issue. (Espinoza, supra, 22 Cal.App.5th at p. 803.)
Defendant contends that Espinoza is distinguishable because the defendant in that case challenged a probation condition, which was an issue affecting the validity of the plea. Defendant argues that his appeal does not involve an issue affecting the validity of his plea. In support of this argument, defendant states: "As this Court noted in People v. Johnson [(2007)] 150 Cal.App.4th [1467,] at p. 1485, even the defendant's 'failure to object at trial [will] not waive the issue of custody credits on appeal since the issue does not involve a discretionary sentencing choice but is a purely mathematical calculation.' "
We are not persuaded by defendant's argument. The relevant issue here is not whether the appellate claim was raised below or whether it involved a discretionary sentencing choice. Rather, the issue is whether the appellate claim is encompassed within the appellate waiver. Where, as here, "the waiver's terms encompass the issue the defendant wishes to raise, the defendant must obtain a certificate of probable cause to avoid dismissal of the appeal." (Espinoza, supra, 22 Cal.App.5th at p. 803.) Because defendant did not obtain a certificate of probable cause, the appeal must be dismissed.
IV. DISPOSITION
The appeal is dismissed.
In case No. 17CR005972:
(1) The minute order regarding the February 28, 2018 sentencing hearing is ordered corrected to state that defendant was granted 72 days of custody credits, consisting of 36 actual days plus 36 days conduct credit.
(2) The abstract of judgment is ordered corrected to state that defendant was granted 72 days of custody credits, consisting of 36 actual days plus 36 days conduct credit. The clerk of the superior court is ordered to send a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/s/_________
BAMATTRE-MANOUKIAN, ACTING P.J. WE CONCUR: /s/_________
MIHARA, J. /s/_________
DANNER, J.