Opinion
A155924
11-25-2019
THE PEOPLE, Plaintiff and Respondent, v. GLENN KELLY GOWER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR222552)
Defendant Glenn Kelly Gower resolved the criminal charges against him—possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a)), possession for sale of a controlled substance (id., § 11378), possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)), possession of ammunition (id., § 30305, subd. (a)(1)), plus enhancements for two prior felony convictions for sale of controlled substances (Health & Saf. Code, § 11370.2, subd. (c))—by way of a plea to the first two counts and admissions of the prior convictions. As the parties contemplated, the trial court suspended imposition of sentence and placed defendant on three years probation. Approximately a year and a half later, defendant violated his probation and he was thereafter sentenced on his offenses.
Defendant raises one issue on appeal—that the trial court should have imposed the mid-term, rather than the upper, four-year term, for possession with a firearm. The Attorney General maintains the appeal should be dismissed because defendant (a) waived his right to appeal as part of the negotiated disposition and (b) failed to seek and obtain a certificate of probable cause. We agree and therefore dismiss the appeal.
BACKGROUND
Defendant executed two waivers of his appellate rights. He executed the first in connection with his no contest plea to the charges against him. This waiver was set forth in a form document entitled "Waiver Of Constitutional Rights . . . In Support Of . . . Motion to Change Plea (Felony)." The form included a list of enumerated rights, e.g., right to a preliminary hearing, right to a speedy and public trial. Below each enumerated right was a provision, in bold, that defendant was giving up the specified right. Next to this provision was a line for initials. The last of these enumerated rights was stated as follows: "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))." Immediately below this was a provision in bold, stating, "I give up my right to appeal." Adjacent to this was the line for initials, on which defendant duly affixed his. Immediately below the enumerated rights section, the change of plea form stated the "maximum punishment which the court may impose based upon this plea is 10 yrs state prison." The form further stated defendant had "been promised:" "1 yr county jail lid," "probation," and "DA Dismiss Cts 3 & 4."
At the change of plea hearing, the trial court reiterated that the maximum possible sentence for the charges to which defendant was pleading was 10 years in state prison, based on the upper terms and the enhancements. It further pointed out defendant could "easily go to prison then based on a probation violation."
At the sentencing hearing, the court, in accordance with the negotiated disposition, suspended imposition of sentence and placed defendant on probation subject to numerous terms and conditions, including serving 120 days in the county jail. The court also reminded defendant—twice—that if he failed on probation he had "ten years in the joint hanging over his head."
Defendant executed the second waiver of his appellate rights after violating his probation. This waiver was set forth in a form document entitled "Waiver Of Rights Re Violation Of: Probation, DEJ, PRCS, Mandatory Supervision." This form also included a list of enumerated rights, i.e., right to a hearing, right to call witnesses. The last of these enumerated rights was stated as follows: "Even though judgment may be imposed as a result of my admission, I have the right to appeal the judgment and rulings of the Court." Immediately below this was a provision in bold, stating, "I give up my right to appeal." Adjacent to this was a line for initials, on which defendant duly affixed his. Immediately below this waiver, the form stated: "I further understand that as a result of my violation, the Court has the power to resentence me or impose sanctions. I understand that the sentence I receive is solely within the discretion of the Court. The Court may reinstate my probation, deferred entry of judgment, postrelease community supervision, or mandatory supervision with new terms and conditions or the Court may sentence me to jail or prison. The maximum punishment which the Court may impose for my violation is: [X] State Prison [ ] County Jail 4 years." Adjacent to this was another line for initials, on which defendant again affixed his.
In keeping with the court's earlier warning, there was no discussion at the subsequent sentencing hearing of probation being reinstated. Rather, probation was revoked and the parties directed their attention to the prison sentence. Defense counsel initially urged the court to impose the mid-term or low-term for both offenses.
The court then took up the issue of mitigating and aggravating circumstances. At this point, defense counsel took the position the aggravating and mitigating circumstances "balanc[ed] each other out," warranting the mid-term for both offenses. The prosecution maintained aggravating factors outweighed mitigating factors, and urged the court to impose upper terms.
The court sentenced defendant to concurrent upper terms, pointing to his lengthy criminal history (noting the priors, although dismissed for enhancement purposes, could still be considered for choosing the length of sentence) and that defendant had not been successful on probation. The only factor in mitigation was defendant's addiction/drug use, which the court concluded did not outweigh the aggravating factors.
Defendant thereafter filed a notice of appeal, but did not request a certificate of probable cause.
DISCUSSION
In response to the Attorney General's assertion that the appeal must be dismissed because defendant waived his right of appeal, defendant maintains that because neither change of plea forms spelled out his sentence, his appellate waivers do not encompass any rulings following his admission of a probation violation.
Two recent cases inform our discussion of the appellate waivers here. The first is People v. Espinoza (2018) 22 Cal.App.5th 794 (Espinoza), in which this court concluded a change of plea appellate waiver nearly identical to that executed here required the defendant to procure a certificate of probable cause to proceed with her appeal. The defendant in Espinoza was placed on probation subject to numerous terms and conditions, including that she not possess dangerous or deadly weapons. Despite having waived her right to appeal from both the court's " 'rulings' " and its " 'judgment,' " she appealed, challenging the weapons condition. (Id. at p. 798.) The court concluded the fact the defendant was challenging a post-plea ruling did not excuse her from obtaining a certificate of probable cause because the appellate waiver "broadly waived her 'right to appeal the judgment and rulings of the court' " and "[b]y its express terms . . . includes her right to appeal the imposition of the probation terms." (Id. at pp. 801-802.)
The second is People v. Becerra (2019) 32 Cal.App.5th 178 (Becerra). In that case, the defendant initialed a provision on a waiver of rights form 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.' " (Id. at p. 183.) The defendant nevertheless appealed, claiming he was entitled to more custody credits than the trial court awarded. He maintained his appeal waiver and failure to procure a certificate of probable cause were no impediment because the waiver of rights form had not specifically addressed credits. (Id. at pp. 190-192.)
The Court of Appeal rejected this assertion, explaining "[a]lthough defendant's appellate waiver does not contain the phrase 'custody credits,' the appellate waiver does expressly encompass 'all rights regarding state and federal writs and appeals,' including 'but . . . not limited to, the right to appeal . . . the judgment' and 'any collateral attacks on [the] conviction or sentence at any time in the future.' By expressly covering 'all . . . appeals' and 'any collateral attacks' by defendant, including appeals and collateral attacks with respect to the 'judgment' and 'sentence,' the parties clearly intended a broad waiver covering any and all claims that defendant might try to later assert regarding his sentence or the judgment. We observe that defendant does not offer a persuasive argument for a different interpretation of the term 'judgment' or 'sentence' in the context of his written waiver." (Becerra, supra, 32 Cal.App.5th. at p. 190.)
The court also pointed out the plea form included an alternative, limited waiver stated: "I hereby waive and give up all rights to appeal, writ, litigate, challenge or contest in the future any order issued by this court made before the date indicated next to my signature below. I give up the same rights concerning all contents of this waiver of rights form and conditions of my entry of plea and conviction as stated herein. I further agree not to ask the court to withdraw my plea for any reason after it is entered." (Becerra, supra, 32 Cal.App.5th at p. 190, first italics omitted, second italics added.) However, "[i]nstead of agreeing to this more limited waiver, the parties chose to enter into a comprehensive appellate waiver that was clearly written with as broad a scope as possible to foreclose 'any' and 'all' appeals and writs, and specifically referred to future events such as sentencing and judgment, which necessarily included the sentencing court's calculation of custody credits, particularly in the absence of any language suggesting that one or more sentencing matters would be excluded." (Id. at pp. 190-191, italics omitted.) --------
While the appellate waivers defendant executed in the instant case are more concise than the waiver in Beccera, they contain the same pivotal language—that defendant waived his right to appeal not only the rulings of the court but also the court's judgment. Thus, the waivers "specifically referred to future events," including the court's judgment memorializing and incorporating the sentence. (Becerra, supra, 32 Cal.App.5th at p. 191, italics omitted.) Indeed, an appeal is not taken from the "sentence," but from the judgment thereon.
Furthermore, in addition to specifically referring to the court's "judgment," the waivers also specifically referred to the "rulings of the court." By referring to both, the language reinforces that the appellate waivers encompassed all of the trial court's pronouncements—those rulings prior to defendant's execution of the waivers and those afterwards, including, specifically, the "judgment" of the court. (See Espinoza, supra, 22 Cal.App.5th at p. 801.)
In addition, the second waiver of rights form, which defendant executed in connection to the resolution of his probation violation, and which is therefore our principle focus here, included—immediately after the appellate waiver—an explicit acknowledgement that the trial court had the power to resentence him, the sentence he would receive was "solely within the discretion of the Court," and the court could choose from among several dispositions, including reinstating probation or sentencing him to prison. Thus, the second waiver of rights form made it explicitly clear that after admitting a probation violation, sentencing—and thus the ensuing judgment of the court—was a matter solely within the court's discretion, and further made it explicitly clear that defendant waived his right to appeal that judgment.
Indeed, defendant's position—that unless a waiver of rights form sets forth a specific sentence, an appellate waiver extends only to pre-plea rulings—would render waiver of the right to appeal from the "judgment" meaningless, a construction that is not supported by any authority.
It would also severely constrain appellate waivers in the revocation context, given that sentencing at this juncture is committed to the court's discretion. Thus, in contrast to the change of plea waiver of rights form, the probation violation waiver of rights form did not include a space to denote a specific sentence. Rather, this form included an appellate waiver of both the court's "rulings" and its "judgment" immediately prior to an explicit acknowledgement that sentencing is "solely within the discretion of the Court" and that spelled out the maximum punishment the court can impose. The probation violation waiver of rights form therefore fully informed defendant about the probation revocation sentencing process and he expressly waived his right to appeal the outcome of that process—that is, defendant expressly waived his right to appeal the court's "judgment" that ensued from and concluded that process. (See Becerra, supra, 32 Cal.App.5th at pp. 190-191; Espinoza, supra, 22 Cal.App.5th at p. 801.)
Neither People v. Panizzon (1996) 13 Cal.4th 68 (Panizzon), nor People v. Buttram (2003) 30 Cal.4th 773 (Buttram), which defendant claims assist him, are at odds with the result we reach here.
In Panizzon, the defendant entered into a negotiated disposition of the criminal charges against him. After the trial court imposed the sentence specifically set forth in the change of plea waiver of rights form, he appealed. (Panizzon, supra, 13 Cal.4th at pp. 73-74.) The Supreme Court reversed the Court of Appeal's denial of the government's motion to dismiss the appeal, first concluding the defendant was, indeed, attacking an integral part of the plea deal and thus could not proceed without a certificate of probable cause. (Id. at pp. 74-79.)
The court secondly, and alternatively, concluded the defendant had waived his right to appeal his sentence. (Panizzon, supra, 13 Cal.4th at pp. 79-88.) The appellate waiver in Panizzon stated as follows: " 'I hereby waive and give up my right to appeal from the sentence I will receive in this case. I also waive and give up my right to appeal the denial of any and all motions made and denied in my case.' " (Id. at p. 82.) After confirming that a defendant can waive the right to appeal as part of a plea deal and can do so by executing a waiver of rights form (id. at pp. 80, 83), the court turned to the defendant's assertion that when he executed the waiver, he could not have waived any " 'future' " sentencing error, such as the error he was advancing (disproportionality based on the sentences imposed on codefendants). (Id. at p. 85.) The high court rejected this assertion, explaining the defendant had not entered into a " 'general' " waiver—that is, "a waiver that is nonspecific, e.g., 'I waive my appeal rights' or 'I waive my right to appeal any ruling in this case.' " (Id. at p. 85 & fn. 11.) Rather, the defendant had specifically waived the " 'right to appeal from the sentence,' " as well as the right to appeal any adverse rulings on " 'motions,' " and his anticipated sentence was set forth in the waiver of rights form. (Id. at pp. 82, 86.) Accordingly, "the length of the sentence and the right to appeal the sentence" were not issues that could be "fairly be characterized as falling outside of defendant's contemplation and knowledge when the waiver was made." (Id. at p. 86.)
Although defendant's appellate waivers are not identical to the waiver in Panizzon, they are similar. Instead of stating defendant waived his right to appeal "the sentence," the waivers specified he waived his right to "appeal the judgment." And instead of stating he also waived his right to appeal "the denial of any and all motions," the waivers specified he waived his right to appeal the "rulings of the Court." In addition, his first waiver spelled out the anticipated disposition—probation subject to numerous terms and conditions. And his second waiver contained an express acknowledgement that post-revocation sentencing was committed to the court's discretion. Accordingly, the court's exercise of its discretion and its ensuing judgment cannot "fairly be characterized" as falling outside defendant's contemplation when he executed the probation waiver of rights form.
In Buttram, the defendant also entered into a negotiated disposition of the charges against him. However, the change of plea form did not include an appellate waiver, nor did it specify the contemplated sentence; rather, it set forth only an agreed-to maximum possible sentence (a "lid"). (Buttram, supra, 30 Cal.4th at p. 776.) In fact, the defendant blacked out the appellate waiver in the form. (Id. at p. 778, fn. 3.) The Supreme Court concluded that in appealing his sentence and claiming the trial court abused its discretion by not initiating civil narcotic addict proceedings, the defendant was not attacking the validity of his plea and therefore could proceed without a certificate of probable cause. (Id. at pp. 777, 779.) The court compared Panizzon, in which it had concluded (first) that the defendant was contesting the validity of his plea and thus could not proceed without a certificate of probable cause. Since the defendant there challenged " 'the very sentence to which he agreed,' " he was attacking an " 'integral part of the plea' " and therefore the "validity of the plea." (Id. at p. 782, quoting Panizzon, supra, 13 Cal.4th at p. 73.) However, where the parties negotiate only a maximum sentence, they "leave unresolved between themselves the appropriate sentence within the maximum," (id. at p. 785) and when the claim on appeal is "merely that the trial court abused the discretion the parties intended it to exercise, there is, in substance, no attack on a sentence that was 'part of [the] plea bargain.' " (Buttram, at p. 786, quoting People v. Lloyd (1998) 17 Cal.4th 658, 665.)
Thus, in Buttram, there was no appellate waiver issue, and the court did not examine or discuss any waiver language, let alone the language in the waivers here or in Espinoza or Becerra.
In a concurring opinion, Justice Baxter, who also authored the majority opinion, discussed his concern that the probable cause certificate requirement is not achieving its intended objective to weed out non-meritorious appeals. (Buttram, supra, 30 Cal.4th at pp. 791-795, conc. opn. of Baxter, J.) At the outset of his concurrence, he urged parties to "expressly negotiate and resolve the issue of appealability," stating that a "prime reason" the high court concluded the defendant in Buttram could pursue his appeal without a certificate was because his plea was "silent on the appealability of the trial court's sentencing choice." (Id. at p. 791, conc. opn. of Baxter, J, italics omitted.) Other than stating appellate waivers are " 'an accepted and integral part of our criminal justice system,' " Justice Baxter did not discuss any specific or hypothetical waiver language, let alone do so in the context of sentencing following the revocation of probation. (Id. at p. 792, conc. opn. of Baxter, J.)
As the court pointed out in Becerra, the scope of an appellate waiver " 'is approached like a question of contract interpretation—to what did the parties expressly or by reasonable implication agree?' " (Becerra, supra, 32 Cal.App.5th at p. 189, quoting In re Uriah R. (1999) 70 Cal.App.4th 1152, 1157.) Given the specific language in the change of plea and the probation violation waiver of rights forms here, we have no difficulty concluding, as we have discussed above, that defendant expressly gave up his right to challenge the trial court's post-revocation judgment incorporating his upper term sentence.
DISPOSITION
The appeal is dismissed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Margulies, J.