Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. VA100531, Patrick T. Meyers, Judge.
Patrick Morgan Ford, 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, Susan D. Martynec and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Franklynn Newton Brundige III appeals the judgment entered following his plea of no contest to two counts of lewd act with a child under the age of 14 years and two counts of continuous sexual abuse of a child. (Pen. Code, §§ 288, subd. (a), 288.5, subd. (a).) Pursuant to a plea bargain, the trial court sentenced Brundige to a term of 24 years in state prison and the People agreed to dismiss 14 remaining counts.
Subsequent unspecified statutory references are to the Penal Code.
On appeal, Brundige contends one of the counts to which he pleaded no contest, count 19, was barred by the statute of limitations. Based thereon, Brundige concludes the trial court lacked authority to impose any prison term on count 19 and thus Brundige is entitled to a four-year reduction of his sentence.
We conclude the appeal must be dismissed because Brundige failed to obtain a certificate of probable cause, which is a prerequisite to an attack on the validity of a plea. Even if this failure is overlooked, Brundige pleaded no contest to count 19 as part of a plea bargain and thus is estopped to assert any defense he might have raised with respect thereto.
BACKGROUND
1. The charges.
Brundige initially was charged with 12 counts of lewd act with a child under the age of 14 years (§ 288, subd. (a)) and 4 counts of lewd act with a child over the age of 14 years (§ 288, subd. (c)(1)). These counts were based on Brundige’s sexual abuse of Salvador O. (counts 1-6), Luis N. (counts 7-11), Jose I. (counts 12, 14 and 17), and Sergio O. (counts 15 and 16). As to each count in which Jose I. was the alleged victim, the summary of the information indicated the count was being prosecuted under section 803, subdivision (f)(1).
Section 803, subdivision (f)(1) provides: “Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5 or 289....”
At the preliminary hearing, the magistrate dismissed count 13, alleging continuous sexual abuse of Jose I. In support of that count, a detective testified that on April 13, 2007, Jose I. reported he was abused by Brundige more than 20 times, starting when Jose I. was 12 years of age and continuing until he was 15. The magistrate found the evidence failed to indicate the number of times Brundige molested Jose I. before Jose I.’s 14th birthday.
Continuous sexual abuse of a child requires three or more acts of substantial sexual conduct with a child under the age of 14 years. (§ 288.5, subd. (a).)
2. The plea bargain.
At the outset of the hearing at which Brundige changed his plea, the trial court indicated the matter had been settled and the information needed to be amended. The prosecutor asked the trial court to add count 18, a violation of section 288.5, subdivision (a), continuous sexual abuse of a child, Salvador O., and a count 19 alleging a violation of section 288.5, subdivision (a), upon Jose I. between October 2, 1997 and October 1, 1998. In addition, the prosecutor asked that count 19 include a special allegation pursuant to section 803, subdivision (f)(1), that on April 13, 2007, Jose I. reported to a law enforcement agency that while he was under the age of 18 years he was the victim of a sexual crime as specified in section 803, subdivision (f)(1), that a complaint was filed within one year of the date of that report, that the limitation period specified in section 800 had expired as to the charged crime, the crime involves substantial sexual conduct, to wit, masturbation, and there is independent evidence that clearly and convincingly corroborates the victim’s allegation, to wit, multiple victims.
Defense counsel indicated Brundige had no objection to the amendment. The prosecutor then indicated Brundige would plead no contest to counts 7, 16, 18 and 19 and, in exchange, the People would recommend a sentence of 24 years in prison. The prosecutor asked whether Brundige agreed with the plea bargain and whether he had gone over the change of plea form with his attorney before he signed and initialed it. Brundige indicated in the affirmative. When asked whether anyone had made any promises to get him to enter the no contest plea, Brundige said, “No. I did this to protect my family from going through... trial....”
The change of plea form, initialed and signed by Brundige, acknowledged that the maximum term on the four counts to which Brundige was pleading no contest was 48 years in state prison. The form stated Brundige understood that, upon his plea of no contest, the trial court would “Deny probation and impose a total State Prison term of 24 years and 0 months.” The form specified the 24-year term would include 4 years for the conduct alleged in count 19. The form also specified the name of the victim in each count.
After the prosecutor elicited waivers of Brundige’s constitutional rights and explained the consequences of the no contest plea, Brundige pleaded no contest to each of the four counts. As to count 19, the prosecutor specifically asked whether Brundige admitted that on April 13, 2007, Jose I. reported to a law enforcement agency that while under the age of 18 years he was the victim of a sexual crime, the complaint was filed within one year of the date of the report, the limitation period specified in section 800 had expired, the crime involved substantial sexual conduct and independent evidence clearly and convincingly corroborated the victim’s allegation.
Defense counsel asked for clarification as to what Brundige was admitting. The prosecutor responded the admission included each of the elements previously recited. Defense counsel asked how Brundige could admit the date on the which the offense was reported, something Brundige could not know. After conferring with counsel, Brundige asked, “I am admitting knowledge of the complaint being filed; is that correct?”
The prosecutor agreed with Brundige’s assessment. Defense counsel then stated Brundige could not know when the report was made, only that a complaint was filed on a particular date. The prosecutor insisted that, based on the police report, Brundige knew when Jose I. made the report to law enforcement.
At that point the trial court interrupted and suggested “we better do this again.” The trial court explained the admission was foundational to count 19 and Brundige had indicated he wished to plead no contest to that count. Defense counsel agreed that was correct. The trial court then indicated the prosecutor would read the special allegation in its entirety and thereafter Brundige would be asked to admit or deny it. The prosecutor then read the special allegation once more and asked if Brundige admitted or denied the allegation.
Brundige again conferred with defense counsel. The prosecutor indicated the allegation was necessary to jurisdiction and it would not trigger any additional term or enhance the sentence imposed. The prosecutor again asked Brundige to admit or deny the allegation and, after conferring with counsel, Brundige admitted. Defense counsel then stipulated to a factual basis for the plea and joined in the waivers and pleas.
3. Sentencing, notice of appeal.
Pursuant to the plea agreement, the trial court sentenced Brundige to the high term of 16 years on count 18, a consecutive term of 4 years on count 19, and consecutive terms of two years on count 7 and count 16 for a total term of 24 years in state prison. The change of plea form signed and initialed by Brundige specified each of these terms.
Brundige filed a notice of appeal in propria persona and indicated a certificate of probable cause was not necessary because the appeal was based on circumstances occurring after the plea.
CONTENTIONS
Brundige contends his prison term must be reduced by four years because count 19 was barred by the statute of limitations and the prosecutor failed to elicit an express waiver of the statute of limitations.
DISCUSSION
1. Absent a certificate of probable cause, Brundige cannot attack the validity of his plea bargain.
“A defendant may not appeal ‘from a judgment of conviction upon a plea of guilty or nolo contendere,’ unless he has obtained a certificate of probable cause. [Citations.] Exempt from this certificate requirement are postplea claims, including sentencing issues, that do not challenge the validity of the plea. [Citations.]” (People v. Cuevas (2008) 44 Cal.4th 374, 379; People v. Shelton (2006) 37 Cal.4th 759, 766; People v. Buttram (2003) 30 Cal.4th 773, 781-782; People v. Panizzon (1996) 13 Cal.4th 68, 74-76.)
Brundige does not attack the manner in which the trial court exercised its sentencing discretion within the permitted maximum. (Cf. People v. Buttram, supra, 30 Cal.4th at p. 790.) Rather, he claims the term imposed was unauthorized because prosecution of count 19 was barred by the statute of limitations. Thus, he challenges the validity of the plea. The law is settled that a certificate of probable cause is a necessary prerequisite to such an attack on a plea bargain. (People v. Cuevas, supra, 44 Cal.4th at pp. 379, 384 [section 654 claim is a challenge to the validity of the plea]; People v. Shelton, supra, 37 Cal.4th at p. 769; People v. Panizzon, supra, 13 Cal.4th at p. 79; People v. Smith (1985) 171 Cal.App.3d 997, 1001.)
Absent a certificate of probable cause, we cannot entertain the issue Brundige raises on appeal and must dismiss the appeal. (People v. Mendez (1999) 19 Cal.4th 1084, 1098-1099.)
Brundige attempts to avoid application of this rule by asserting he did not agree to a specified prison term as part of his plea bargain. Rather, the People agreed only to seek no more than 24 years in state prison.
Although the prosecutor referred in colloquy to the plea bargain as involving a promise not to seek a term in excess of 24 years, the written plea agreement, which Brundige signed and initialed with the assistance of counsel, not only indicated Brundige would be sentenced to 24 years, but also indicated how this term would be computed and that each count pertained to a specific victim. Further, when the trial court sentenced Brundige, it referred to the sentence as one it was imposing pursuant to a plea bargain.
“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. (Civ. Code, § 1636.) If contractual language is clear and explicit, it governs. (Civ. Code, § 1638.)’ ” (People v. Shelton, supra, 37 Cal.4th at p. 767.)
The language of Brundige’s plea bargain is clear and explicit. Thus, the written plea agreement controls over the prosecutor’s oral reference to the agreement. Further, even if the plea bargain is construed as one involving an agreement not to seek a term in excess of 24 years, a challenge to a trial court’s authority to impose an agreed upon maximum sentence is a challenge to the validity of the plea requiring a certificate of probable cause. (People v. Cuevas, supra, 44 Cal.4th at pp. 381, 383-384.)
In sum, Brundige is unable to mount the current attack on his plea bargain without a certificate of probable cause.
Brundige next asserts that if he was required to obtain a certificate of probable cause, defense counsel rendered ineffective assistance in failing to obtain one. A claim of ineffective assistance of counsel can be made on direct appeal when defense counsel’s deficient performance is clear from the record or there could be no satisfactory explanation for counsel’s actions. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; People v. Pope (1979) 23 Cal.3d 412, 426.) However, the present record does not demonstrate deficient performance by defense counsel and Brundige fails to explain why defense counsel, after negotiating a favorable plea bargain, would thereafter seek to attack that plea bargain. Absent any showing of ineffective assistance of counsel, it is inappropriate for an appellate court to speculate about defense counsel’s performance. (People v. Silvey (1997) 58 Cal.App.4th 1320, 1329.) Thus, the claim of ineffective assistance of counsel fails.
Finally, Brundige asks this court to treat the appeal as a petition for writ of habeas corpus and address the merits of the issue. Even were we inclined to do so, Brundige’s contention cannot succeed.
2. Brundige is estopped under the plea bargain from asserting the statute of limitations.
A violation of section 288.5, subdivision (a) must be prosecuted within six years after commission of the offense. (§ 800.) Brundige notes the conduct alleged in count 19 took place between October 2, 1997 and October 1, 1998 and the final amendment of the information to add count 19 occurred on July 31, 2008, more than six years later. Brundige asserts the conduct alleged in count 19 cannot be based on count 13, which was dismissed at the preliminary hearing. Thus, count 19, which was filed for the first time when Brundige changed his plea, was filed more than one year after the date on which the incident was reported to the police. Brundige concludes section 803, subdivision (f)(1) could not revive count 19. (People v. Terry (2005) 127 Cal.App.4th 750, 764-769.)
Brundige further contends that, where the information indicates on its face the charge is untimely, absent an express waiver, a defendant convicted of that charge may raise the statute of limitations at any time. (People v. Williams (1999) 21 Cal.4th 335, 339.) Brundige argues the admission elicited by the prosecutor was not an express waiver of the statute of limitations as required by People v. Williams, supra, at p. 339. Brundige notes he was not told count 19 would have been barred by the statute of limitations absent the special allegation and the prosecutor incorrectly advised Brundige the admission of the special allegation would not increase his sentence. However, the admission permitted count 19 to proceed.
The People respond count 19 properly could have been based on the lewd act alleged in count 12, which was pending at the time of the plea bargain. (See People v. Bell (1996) 45 Cal.App.4th 1030, 1064; People v. Hamlin (2009) 170 Cal.App.4th 1412, 1441-1442.) Thus, prosecution of count 19 was proper under section 803, subdivision (f)(1).
We need not determine whether count 19 would have been time barred absent the plea bargain. Brundige is estopped by his plea bargain from asserting the statute of limitations with respect to count 19.
It is settled that when a defendant contends a prison sentence violates rules that would have required the imposition of a more lenient sentence, but he or she avoided a potentially harsher sentence by entering into the plea bargain, the court will imply that the defendant waived any rights under such rules by choosing to accept the plea bargain. (People v. Hester (2000) 22 Cal.4th 290, 295 [violation of section 654].) “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.” (Ibid.)
Here, Brundige pleaded no contest to four felony counts, one for each victim. Brundige’s written change of plea form acknowledged these four counts carried a maximum penalty of 48 years in state prison. In return for his plea of no contest, the People agreed to a term of 24 years in prison and agreed to dismiss 14 felony counts. Brundige also avoided putting his family through a trial of the charged offenses. Brundige was told that, in order to plead no contest to count 19, which he asserted he wished to do, he would have to admit that count 19 was brought under the circumstances outlined in section 803, subdivision (f)(1). All of the counts in which Jose I. was named as a victim contained this allegation. Consequently, it was not an allegation Brundige and his attorney had not previously encountered in the context of this case. Further, any confusion in the admission related only to whether Brundige had personal knowledge of the date on which Jose I. reported Brundige’s conduct to the police.
In sum, the record reflects that, in order to reap the benefits of his plea bargain, Brundige admitted that prosecution of count 19 was proper under section 803, subdivision (f)(1) and that the elements of section 803, subdivision (f)(1) were satisfied. The prosecutor correctly advised Brundige the admission would not increase the term beyond the negotiated 24-year term. Having received the benefit of his bargain, Brundige cannot now attempt to obtain a better bargain through the appellate process. (In re Griffin (1967) 67 Cal.2d 343, 348; People v. Chatmon (2005) 129 Cal.App.4th 771, 773; People v. Nguyen (1993) 13 Cal.App.4th 114, 122-123.) Notably, Brundige does not seek to withdraw his no contest plea but rather seeks a four-year reduction of the agreed-upon sentence.
People v. Williams, the case relied upon by Brundige, is inapplicable because count 19 included an allegation under section 803, subdivision (f)(1), and thus was not time barred on its face. (People v. Thomas (2007) 146 Cal.App.4th 1278, 1289.) Further, Williams involved a court trial, not a plea bargain.
Lastly, Brundige argues defense counsel rendered ineffective assistance in permitting Brundige to plead no contest to a time-barred offense and in failing to advise him that count 19 could not be prosecuted absent Brundige’s consent. (People v. Johnson (1995) 36 Cal.App.4th 1351, 1358.) However, the record contains no suggestion defense counsel rendered ineffective assistance. Rather, as previously noted, defense counsel negotiated a favorable plea bargain that Brundige agreed to in open court.
For the foregoing reasons, Brundige’s attack on count 19 would have failed even had he obtained a certificate of probable cause.
DISPOSITION
The appeal is dismissed.
We concur: KITCHING, J., ALDRICH, J.