Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR 222225
Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Following denial of defendant’s motion to suppress evidence, he entered a plea of no contest to two counts of possession of child pornography with a prior conviction (Pen. Code, § 311.11, subd. (b)), and admitted that he served a prior prison term (§ 667.5, subd. (b)). He claims that the trial court erred by denying his motion to suppress evidence found during a series of searches of his person and the vehicle he was driving. We conclude that defendant expressly waived the right to appeal the denial of his suppression motion, and dismiss the appeal.
All further statutory references are to the Penal Code unless otherwise indicated.
STATEMENT OF FACTS
On the evening of September 30, 2005, Officer William Lee of the Suisun Police Department detained a white Pontiac Firebird on Sunset Avenue for inoperative taillights. Defendant was the driver of the vehicle; Theresa Stevens was in the front passenger seat. Officer Lee obtained identification from both occupants of the vehicle, and determined that Stevens was on probation, subject to a search condition.
Stevens told the officer she was “on felony probation, search and seizure,” and a records check confirmed it.
Officer Lee approached Stevens and asked her to step out of the vehicle for a pat search. After the pat search Stevens was directed to sit on the sidewalk and remove her shoes and socks.
Officer Lee then contacted defendant to advise him that Stevens was on probation, and that the “portion of the vehicle she was in was subject to search.” Defendant initially expressed discontent with the officer’s “desire to search the vehicle.” After the officer stated that he was “entitled to search the car” pursuant to Stevens’s probation condition, defendant “relented” and said, “I guess.”
Defendant left the driver’s seat and was escorted to the back of the car by the officer. Officer Lee advised defendant that he was “not a suspect in a crime,” but inquired if he could conduct a search of his person. Defendant replied, “ ‘go ahead’ or something to that effect.” The officer then conducted a pat search of defendant for “safety” reasons. In defendant’s left breast pocket Officer Lee detected “something that felt like a wad of paper.” As the officer was manipulating the object he asked defendant “what it was,” and defendant said something like, “just a little crystal.” Based on his training and experience Officer Lee thought defendant was referring to “crystal methamphetamine.” The officer removed the item from defendant’s pocket and determined that it contained “[f]lakey white crystal material” that appeared to be methamphetamine. Defendant was asked to sit on the sidewalk while Officer Lee conducted a search of the interior of the vehicle.
Officer Lee began his search of the car at the front passenger seat “because that’s where the passenger was seated that was also with the probation search.” The officer moved to the center console, where he found a “glass test tube type smoking pipe used to smoke crystal methamphetamine.” Defendant was then handcuffed and placed in the back of Officer Lee’s patrol vehicle. Officer Lee’s backup unit arrived about a minute later.
Officer Lee continued his search of the car, first in the back seat where he observed a cable box and other stacked items. He then proceeded to the driver’s seat. Under the front seat which had been occupied by defendant the officer discovered a black zippered case which contained a plastic weighing scale, five or six syringes, and some spoons, one of which had “burned marks” and a “little nugget” of methamphetamine stuck to it that was not a usable amount. Officer Lee concluded that the spoon had been used “in the melting process of the crystal methamphetamine.”
The officer explained that a “lot of items” were visible in the back of the car, and Stevens was on probation for “possession of stolen property.”
Defendant had a prescription for the syringes.
On the rear floorboard of the car immediately behind the driver’s seat the officer observed “a pornographic magazine or two.” The magazines depicted “young nude girls” who appeared younger than 18 engaged in “intercourse.” Officer Lee did not know if the magazines “were legal or not.” Near the magazines he also found two videotapes. When the search of the vehicle was conducted the officer was aware that defendant “had a prior conviction for possession of child pornography,” so he seized the magazines and videotapes as “pornographic items.”
Defendant was transported to the police station where he was searched again. Another bindle of crystal methamphetamine was seized from his pants pocket.
At the conclusion of the hearing the trial court found that: the detention of the vehicle was lawfully based on “defective taillights;” defendant did not give consent for a search of the car or his person; the search of the vehicle was justified by the passenger’s probation search condition; the officer had authority to remove defendant from the vehicle and pat search him; the seizure of the methamphetamine from defendant’s front shirt pocket was lawful under the “inevitable discovery” rule in light of the drug paraphernalia found in the car during the probation search; the seizure of the magazines and videotapes was properly based on probable cause.
DISCUSSION
Defendant renews his challenge to the warrantless searches and seizures that followed the detention of his vehicle and the discovery of the status of his passenger as a probationer subject to a search condition. He claims that a series of unlawful intrusions by the officer occurred: the search of the center console of the vehicle was not justified by the probation search condition; no independent grounds existed to pat search defendant or retrieve the bindle of methamphetamine from his shirt pocket; the warrantless search of the remainder of the vehicle was not justified by the discovery of methamphetamine in defendant’s possession; and, the seizure of the magazines and videotapes was not based on probable cause of any illegality.
I. Defendant’s Waiver of the Right to Appeal the Denial of the Suppression Motion.
Initially, we confront the Attorney General’s contention that defendant “waived his right to appeal” pursuant to the negotiated plea. The claim of waiver is based on a provision in the standard change of plea form executed by defendant that specifies: “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. I give up my right of appeal.” The Attorney General maintains that the express waiver of the right of appeal encompasses “the denial of the motion to suppress.” We agree that defendant’s right to challenge the denial of his suppression motion was waived by the terms of his plea agreement.
“Both our state Supreme Court and the United States Supreme Court have recognized that plea bargaining is based upon ‘reciprocal benefits’ or ‘mutuality of advantage’ between the prosecution and the defendant. [Citations.] Our Supreme Court has repeatedly recognized that ‘ “[w]hen a guilty plea... is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties... must abide by the terms of the agreement.” ’ [Citations.]” (People v. Collins (1996) 45 Cal.App.4th 849, 862–863.) “ ‘Just as a defendant may affirmatively waive constitutional rights to a jury trial, to confront and cross-examine witnesses, to the privilege against self-incrimination, and to counsel as a consequence of a negotiated plea agreement, so also may a defendant waive the right to appeal as part of the agreement.’ [Citation.] As the Court of Appeal noted in People v. Vargas (1993) 13 Cal.App.4th 1653, 1659 [17 Cal.Rptr.2d 445]: ‘The right to appeal a criminal conviction has no roots in the United States or California Constitutions and is a statutory right only. [Citations.] If a defendant may waive important constitutional rights by pleading guilty, it follows a fortiori that a defendant may expressly waive his statutory right to appeal as part of a plea agreement....’ ” (People v. Aparicio (1999) 74 Cal.App.4th 286, 289, citing People v. Panizzon (1996) 13 Cal.4th 68, 80.) “[T]herefore, an express waiver of the right of appeal made pursuant to a negotiated plea agreement is valid provided defendant’s waiver is knowing, intelligent and voluntary.” (People v. Vargas, supra, at p. 1659; see also People v. Charles (1985) 171 Cal.App.3d 552, 558–559.)
II. The Voluntariness of the Waiver.
We first consider whether defendant’s plea and waiver of rights was knowing and voluntary. “ ‘To be enforceable, a defendant’s waiver of the right to appeal must be knowing, intelligent, and voluntary. [Citations.] Waivers may be manifested either orally or in writing....’ [Citation.]” (People v. Aparicio, supra, 74 Cal.App.4th 286, 289.) A plea, like any other waiver of constitutional rights, “may be accepted by the court only if knowing and intelligent—made with a full awareness of the nature of the right being waived and the consequences of the waiver. In addition, the waiver must be voluntary.” (People v. Smith (2003) 110 Cal.App.4th 492, 500; see also New York v. Hill (2000) 528 U.S. 110, 114–118; Colorado v. Spring (1987) 479 U.S. 564, 573.) When a defendant elects to waive the fundamental constitutional rights that accompany a trial by pleading guilty “the record must reflect that the defendant did so knowingly and voluntarily—that is, he or she was advised of and elected to refrain from exercising the fundamental rights in question.” (People v. Collins (2001) 26 Cal.4th 297, 308.) Under the governing test, a plea is valid “if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.” (People v. Howard (1992) 1 Cal.4th 1132, 1175; see also North Carolina v. Alford (1970) 400 U.S. 25, 31; People v. Torres (1996) 43 Cal.App.4th 1073, 1082; People v. Knight (1992) 6 Cal.App.4th 1829, 1831–1832.)
“ ‘The burden is on the party claiming the existence of the waiver to prove it by evidence that does not leave the matter to speculation, and doubtful cases will be resolved against a waiver. [Citation.] The right of appeal should not be considered waived or abandoned except where the record clearly establishes it. [Citation.]’ [Citation.]” (People v. Rosso (1994) 30 Cal.App.4th 1001, 1006–1007.)
The record persuades us that defendant’s entry of his plea and waiver of rights was in all respects knowing and voluntary. Defendant initialed the provision in which he explicitly recognized and waived his right to appeal. He also separately declared – again accompanied by his initials – “that my attorney has read and explained this document to me, and I hereby freely and voluntarily, having full knowledge and understanding of the rights that I am giving up and the possible consequences which may result from my plea, do hereby request the Court to accept my new and different plea(s).” Defense counsel declared that he read and explained the change of plea form to defendant, fully discussed the law and facts with defendant, and that defendant understood the consequences of his plea. At the change of plea hearing, the trial court confirmed that defendant dated, signed and initialed the waiver of rights form. In response to the trial court’s inquiry, defendant also reiterated that he had discussed the plea form with his counsel and had no questions about it. Defendant’s acts of initialing and signing the change of plea form which indicated he was waiving his right of appeal, coupled with his acknowledgment of admonitions given to him by counsel, demonstrates, “independent of the oral advisement by the court, [that he] was informed sufficiently of this right to knowingly and intelligently waive it.” (People v. Vargas, supra, 13 Cal.App.4th 1653, 1661.) Under the facts presented we find that defendant’s waiver of the right to appeal was knowing, intelligent, and voluntary despite the absence of a specific admonishment by the trial court “regarding the right to appeal.” (People v. Panizzon, supra, 13 Cal.4th 68, 83–84; see also People v. Vargas, supra, at pp. 1660–1661; People v. Castrillon (1991) 227 Cal.App.3d 718, 722.)
III. The Scope of the Waiver of the Right to Appeal.
It remains for us to determine the scope of the waiver, and specifically whether it encompasses the statutory right to seek review of the trial court’s ruling on the suppression motion (Pen. Code, § 1538.5, subd. (m)). Defendant argues that even if his plea and waiver of appeal rights was valid, it “did not specifically include the waiver of the right to appeal the denial of his motion made pursuant to Penal Code section 1538.5.” He asserts that without any direct or indirect reference to waiver of “the right to appeal the denial of his Fourth Amendment Federal Constitutional rights,” the “general reference to a waiver of appeal rights” does not preclude review of the search and seizure issues he raised in the trial court.
To determine the nature and scope of the waiver we must examine the plea agreement between the parties. Where, as here, the waiver of appellate rights is “found in the context of a plea bargain, the scope of the waiver is approached like a question of contract interpretation—to what did the parties expressly or by reasonable implication agree?” (In re Uriah R. (1999) 70 Cal.App.4th 1152, 1157.) We interpret the terms of the plea agreement under fundamental contract principles. (People v. Armendariz (1993) 16 Cal.App.4th 906, 911; People v. Ames (1989) 213 Cal.App.3d 1214, 1217.) “ ‘The court should accord an interpretation which is reasonable (Civ. Code, § 1643) and which gives effect to the intent of the parties as it may be interpreted from their entire agreement....’ ” (People v. Haney (1989) 207 Cal.App.3d 1034, 1039, citing Addiego v. Hill (1965) 238 Cal.App.2d 842, 846.) Using the paradigm of contract law, “courts should look first to the specific language of the agreement to ascertain the expressed intent of the parties. [Citations.] Beyond that, the courts should seek to carry out the parties’ reasonable expectations.” (People v. Nguyen (1993) 13 Cal.App.4th 114, 120, fn. omitted.)
Of paramount significance in the present case is that defendant’s waiver of the right to appeal is articulated in terms that are neither vague nor limited. The provision expresses comprehension of defendant’s “right to appeal the judgment” and all of the “rulings of the court,” then states: “I give up my right of appeal.” (Italics added.) As we read the language of the waiver provision it includes any prior ruling of the court, which includes the ruling on the suppression motion.
Other factors support a finding that the waiver extends to the ruling on the suppression motion. Defendant entered into a negotiated disposition which granted him significant benefits in the nature of dismissal of charges and the promise of a sentence that would not exceed eight years four months, a term far below the maximum potential punishment. The sentence subsequently imposed did not exceed the promised disposition. The beneficial result was an obvious motivation for the plea. In return, the People reasonably expected to receive the benefit of relief from any risk of reversal of the ruling on the suppression motion. The denial of the suppression motion was also the only prior ruling of substance by the trial court that was subject to review on appeal, and thus must be what defendant waived by giving up his “right of appeal.” (People v. Berkowitz (1995) 34 Cal.App.4th 671, 677–678.)
Defendant’s claim that the waiver of the right to appeal denial of a suppression motion must be explicitly stated in the plea agreement is contrary to established and unwavering case law. A “broad or general waiver of appeal rights,” such as defendant entered here, ordinarily includes all errors that occurred before the waiver, but not sentencing errors that occurred after the plea, “because the defendant could not knowingly and intelligently waive the right to appeal any unforeseen or unknown future error.” (People v. Mumm (2002) 98 Cal.App.4th 812, 815.)
Thus, in People v. Kelly (1994) 22 Cal.App.4th 533, 534 (Kelly), the defendant signed a “ ‘Change of Plea’ ” form which recited the terms of the bargain and the consequences of the plea, and in a separate provision which was inscribed with his initials stated: “ ‘I understand that as a term and condition of this plea that I give up any direct appeal I may have, except any appeal to [sic] sentencing error.’ ” (Id. at p. 535.) The defendant “acknowledged on the form he had read and discussed with his attorney each of the terms, and that he understood them.” (Ibid.) As in the present case the “form also recited that defendant’s attorney had reviewed the terms of the negotiated plea with defendant and explained the consequences of the plea” to him. (Ibid.) At the hearing on the change of plea, the court asked the defendant if he had read and signed the change of plea form. Defendant answered in the affirmative, and added that he entered the plea freely and voluntarily. (Ibid.)
The court in Kelly, supra, 22 Cal.App.4th 533, 535–536, relied on prior decisions in People v. Vargas, supra, 13 Cal.App.4th 1653, 1660–1662, People v. Nguyen, supra, 13 Cal.App.4th 114, 119–120, and People v. Castrillon, supra, 227 Cal.App.3d 718, 721–722, each of which, the court explained, “upheld a general waiver as to alleged errors occurring prior to the waiver of the right of appeal,” (id. at p. 536) specifically the denial of a suppression motion. The court concluded: “The record demonstrates defendant’s waiver of the right to appeal was made with full knowledge and understanding of the consequences, and specifically that he was waiving his right to appeal the order denying suppression of evidence. [Citations.] In exchange, defendant received, and well understood he was receiving, significant benefits, including the dismissal of one charge and a sentence limit. [¶] Because we conclude that defendant freely, knowingly and intelligently waived his right of appeal, the merits of the suppression motion are not cognizable.” (Ibid.)
In People v. Berkowitz, supra, 34 Cal.App.4th 671, 676, the court was presented with a similar waiver in which the defendant acknowledged his “right of appeal,” and that by pleading guilty he was “giving up” that right. The court noted that the decision in People v. Charles, supra, 171 Cal.App.3d 552, 563–564, “surveyed authorities in California and other jurisdictions, and concluded that ‘a criminal defendant may waive his or her statutory right to appeal the trial court’s ruling on the suppression motion and that such waiver may be made a condition of a plea agreement. As long as the record shows that the waiver was free, knowing and intelligent..., it must be upheld as a part of the plea agreement and the defendant will be forever barred from raising the search and seizure issue on appeal notwithstanding section 1538.5, subdivision (m).’ [Citation.]” (Berkowitz, supra, at pp. 676–677.) The defendant in Berkowitz acknowledged existing case law, but argued “that the rule of these decisions should not apply in this case, for two reasons. First, he argues the trial court did not specifically tell him that the waiver of appeal concerned suppression issues, leaving him to suppose it related to the merits of the charges against him.” (Id. at p. 677.) The court declared: “That argument was rejected in People v. Kelly, supra, 22 Cal.App.4th at page 535. So long as the waiver is voluntary, knowing, and intelligent, there is no basis to set it aside. Its scope must be analyzed in terms of the reasonable expectation of the parties.” (Ibid.) After examining the content and circumstances of the general waiver the court concluded: “We see no reason not to accord the waiver its plain meaning: a waiver of whatever appellate rights appellant may have had. Since the sentence imposed by the trial court was that which had been promised, and was within the authority of the court to impose, the only issues that could have been appealed were those related to the partial denial of appellant’s suppression motion. That is what he waived.” (Ibid.)
We reach the same conclusion in the case before us. We find that defendant’s waiver of the right to appeal was knowing, intelligent and voluntary, and encompassed the right to appeal the denial of his motion to suppress evidence.
Accordingly, the appeal is dismissed.
We concur: Marchiano, P. J., Margulies, J.