Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C160389
Dondero, J.
In these appeals from defendant’s entry of a no contest plea and the trial court’s subsequent revocation of his probation, defendant claims that the probation conditions previously imposed upon him pursuant to a plea bargain are invalid. We conclude that as part of his plea defendant knowingly, voluntarily, and expressly waived his right to seek review of the probation conditions, and therefore dismiss the appeals.
The appeals have been consolidated.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In light of defendant’s plea and the issues presented on appeal that relate exclusively to the conditions of probation imposed upon him, our recitation of the facts pertinent to the charged offenses will be concise, and is taken from the probation and inspector’s reports filed in the case, along with the testimony presented at the probation violation hearing.
Defendant was charged in a sequence of separate cases, which were consolidated before he entered his plea. The offenses with which defendant was charged occurred during a series of incidents associated with his relationship with the victim, Glynda Hull, a professor in the Education Department of the University of California, Berkeley (UC).
Defendant and Hull became acquainted in 2000, when he attended a vocational program in Oakland. They formed a “professional relationship” in 2003, when defendant became a “community partner” for a California educational nonprofit organization known as the Oakland Technology and Education Center (OTEC), a partnership between UC and community organizations which provides “after-school programs” to teach computer skills to children. Through UC, Hull obtained the grants to fund OTEC. She also designed the OTEC programs and was on the Board of Directors of the group. Defendant eventually acted as program director for OTEC. Defendant and the victim were “close friends and co-workers” at OTEC. They also briefly shared an “intimate personal relationship, ” which deteriorated in 2001 and ended at Hull’s behest in 2004 or 2005.
Defendant and Hull remained friends for a while thereafter, but by 2005 their professional relationship became strained as the OTEC expanded and defendant encountered “difficulties in managing the work.” Hull received complaints about defendant’s management of OTEC projects and his abusive verbal confrontations with the staff and UC employees. In the summer of 2006, Hull asked defendant to resign his position as director of OTEC. When he refused, Hull attempted to have defendant removed from his position by the OTEC Board of Directors. Thereafter, their “deteriorating professional relationship ended the friendship.” Hull resigned her position on the Board of Directors of OTEC, and terminated her participation in the project.
Beginning in July of 2007, defendant embarked on a course of repeated harassment and stalking of Hull that resulted in the multiple criminal actions filed against him. He was arrested in September of 2007 for making a series of harassing and threatening contacts with the victim, which included a warning to her that he would “get [his] revenge.” He was also charged with burglary (Pen. Code, § 459) for entering Hull’s home and stealing her camera, lap top computer, and hard drive, which he used to impersonate her by sending out e-mails in her name.
All further statutory references are to the Penal Code.
Defendant was arrested again on November 21, 2007, for further harassment of Hull. He contacted friends and colleagues of the victim, mostly by e-mail, and made false accusations to them of improper professional conduct by Hull. He violated a restraining order by appearing at the victim’s office at Tolman Hall on the UC campus, and was suspected of slashing a tire on Hull’s car.
In December of 2007, defendant was associated by computer address information with two sexually suggestive advertisements posted on a website which included a photograph of the victim and her address. He subsequently contacted the victim by telephone and told her that he contemplated “killing her” or hiring someone to kill her. Defendant also advised Hull that he had loosened the lug nuts on two of her car tires, which Hull confirmed upon inspection. He was charged in an amended complaint with stalking (§ 646.9, subd. (b)) and assault with a deadly weapon (§ 245, subd. (a)(1)), and subsequently arrested after he fled from the police.
Defendant again violated the criminal protective and civil restraining orders that prohibited contact with the victim. On May 5, 2008, he abruptly stopped his motorcycle in front of the victim’s vehicle on a crowded freeway on-ramp in Oakland, which caused both the victim and other drivers to take emergency evasive action. He was arrested and charged with another count of stalking.
On May 13, 2008, defendant appropriated a check in the amount of $28,000 mailed from UC to a nonprofit organization in the Prescott Center. The OTEC office was also located in the Prescott Center building, along with several other nonprofit organizations. Defendant had been evicted from the building and directed to cease using the UC logo and name in association with OTEC operations. He appropriated the check from the mailbox in the Prescott Center building and deposited it into his own checking account. In August of 2008, he was charged with grand theft (§ 487) of the check. He continued to harass Hull in 2008 by making further false accusations of professional misconduct to organizations and her colleagues.
After the cases were consolidated, on February 3, 2009, defendant entered a negotiated plea of no contest to one count of dissuading a witness from testifying (§ 136.1, subd. (c)(1)), and all the remaining charges against him were dismissed. The court advised defendant that as part of the plea bargain he would be placed on felony probation for five years, and pursuant to section 646.9, subdivision (k), he would be ordered for 10 years to stay away from the victim, the UC campus, the Prescott Center, and the victim’s horse barn in Livermore. The court stated that the “10-year stay away” order also prohibited defendant from any contact with the UC Education Department, any use of the victim’s name or impersonation of her, any sending of “e-mails in her name, ” or any contact with “third parties about her.” When defendant was asked if he accepted the terms of the plea bargain, he asserted that he wanted to retain his “civil liberties” to “sue the victim and whatever parties, ” and complained that his cousin lived “next door” to the Prescott Center. The prosecution agreed that the terms of probation did not preclude defendant from filing suit against Hull or anyone else.
When questioned by the trial court, defendant represented that he understood and waived his rights, as stated in the signed waiver form and explained by his attorney. Specifically, the court asked defendant if he relinquished his “right to appeal, ” and defendant stated: “I give up my right to appeal.” Defendant then declared that he accepted the terms of the plea bargain. The court found defendant’s plea “knowing, voluntary, and intelligent, ” and the plea was entered.
At a subsequent sentencing proceeding on March 18, 2009, the trial court queried defendant about his previous assertion to the probation officer of unwillingness to comply with all of the conditions of probation. Defendant expressed that he was “confused” about “a lot of conditions” of probation specified in the plea agreement, but agreed that he would “comply with probation.” The matter was continued to “determine restitution” and delineate the specifics of the 10-year stay away order.
At the final sentencing hearing on March 20, 2009, the court noted a concern that defendant was “not at peace” with the plea agreement and would continue to “bother” the victim upon release from custody. The court then reiterated the details of the previously imposed 10-year stay-away order that defendant was “required” to follow: no contact with the victim “directly or indirectly, ” or through “third parties” or electronic devices; stay away “from her job, her person, her home, her vehicle” for a distance of at least 100 yards; stay away from the UC campus, the Greenville Equestrian Center in Livermore, and the Prescott Center on Peralta Street in Oakland; and no contact with the UC graduate school of education. Defendant expressed that he understood the order.
A criminal protective order (§ 1203.097, subd. (a)(2)) was filed on March 20, 2009, which reiterated the terms and conditions, including the prohibition against “contact with any third parties for the purpose of talking about Glynda Hull.” Defendant admitted that he received a copy of the order.
A petition to revoke defendant’s probation was filed on June 23, 2009, which alleged that he violated his probation by disobeying the terms of the restraining order, in violation of section 166, subdivision (a)(4) (contempt of court). The attached report of an inspector with the district attorney’s office enumerated instances of defendant’s continued stalking and harassment of Hull through multiple contacts with third parties by telephone or e-mails: he complained of her false accusations against him, charged Hull with manipulation of accounts and funding at OTEC; he alleged that she lied about him; he continued to include references to Hull on the OTEC website; he sent photographs of two children taken by Hull on his MySpace website that the victim suspected were obtained from her computer hard-drive; he sent photographs of Hull and of himself with Hull’s horse to the victim’s professional colleagues and friends; he followed Hull’s Twitter website; and he even stated that he wanted to seek retribution for the actions taken by Hull against him.
At the probation revocation hearing, the defense argued that the no-contact provision of the protective order was vague and overbroad, and defendant did not violate probation merely by using the victim’s name in his contacts with other people. The court questioned the validity of the condition that foreclosed “contact with third parties for purposes of talking about Glynda Hull, ” but found that defendant’s conduct nevertheless violated the provision against “contact, direct or indirect” that unsettled or harassed the victim. The court therefore ruled that defendant violated the terms of his probation, even without consideration of the prohibition against “talking about Glynda Hull” with a third party. Defendant was ordered to serve 120 days in county jail for the violation of probation. The criminal protective order was modified to delete the provision that prohibited contact by defendant “with any third parties for the purpose of talking about Glynda Hull, ” as an invalid term. The court also made the remaining provisions of the 10-year order “part of the terms and conditions of probation pursuant to [section] 1203.1.” This appeal followed.
DISCUSSION
Defendant argues that two of the probation conditions imposed by the trial court are invalid. First, he claims that the prohibition against communication with third parties about the victim is unconstitutionally vague, overbroad, and conflicts with his “right to free speech.” He particularly complains that the terms of the proscription against mentioning the victim to third parties “unduly restrict his ability to continue pursuing his profession, ” particularly since he is still seeking to operate the OTEC nonprofit organization with which Hull was also affiliated, and thus has “legitimate reasons” for discussing the victim with others. In addition, defendant asserts that the third-party no-contact provision interferes with his “stated interest in pursuing his civil claims.” He also objects to the condition that precludes his presence at the UC campus and his “former office at the Prescott Center in Oakland” as overbroad and “unduly harsh.”
I. Defendant’s Plea as a Waiver of the Right to Appeal the Validity of the Probation Conditions.
Before proceeding to the merits of defendant’s challenge to the probation conditions, we confront the Attorney General’s contention that defendant “waived his right to appeal his probation conditions” 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: “I hereby give up my right to appeal from this conviction, including an appeal from the denial of any pretrial motions.” At the change of plea hearing defendant was also directly asked by the trial court, “Do you give up your right to appeal?” Defendant was told that to “take the plea deal” he must waive the right to appeal, and responded, “I give up my right to appeal.” The Attorney General maintains that the express waiver of the right of appeal is valid and includes the present challenge to the probation conditions.
“ ‘Acceptance of the agreement binds the court and the parties to the agreement.’ [Citation.]” (People v. Feyrer (2010) 48 Cal.4th 426, 437.) “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 plea and waiver of rights was in all respects knowing and voluntary, despite the failure of the court at the change of plea hearing to specifically remind him of his right to appeal. Defendant initialed the provision of the change of plea form in which he explicitly recognized and waived his right to appeal. He also separately declared in the form – again accompanied by his initials – that he had discussed the charges and possible defenses with his attorney, understood all of the rights he waived, and signed the form freely and voluntarily. Defense counsel personally acknowledged that he explained to defendant all of the rights he waived and the consequences of the plea.
Further, at the change of plea hearing the trial court thoroughly discussed the waiver of rights form with defendant and confirmed that defendant signed and initialed the form. The court then elicited from defendant that he read the form, “went over it” with counsel, and understood the provisions he initialed. Defendant expressed some confusion about the nature of the restrictions placed upon his right to bring a civil action against the victim and UC, and the precise nature of the prohibitions against contact with the victim. The content of the stay-away order was explained to him, however, and nothing in the record indicates that he failed to understand the consequences of his express waiver of the right to appeal the judgment. Defendant’s acts of initialing and signing the change of plea form in which he specifically waived 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 right to seek review of the trial court’s imposition of probation conditions pursuant to the plea bargain. He argues that “a defendant’s failure to object in the lower court to a probation condition as unconstitutionally vague and overbroad does not forfeit such a challenge on appeal.” Defendant also points out that he is challenging probation conditions that were adopted “after the plea, ” so the waiver rule does not preclude the present appeal.
First, we are not dealing here with a claim that defendant forfeited the right to seek review of the probation conditions by failing to object to them on constitutional grounds in the trial court. Rather, our focus is upon defendant’s express waiver of his right to appeal by entering into a plea agreement. “Cases have used the word ‘waiver’ ‘loosely to describe two related, but distinct, concepts: (1) losing a right by failing to assert it, more precisely called forfeiture; and (2) intentionally relinquishing a known right. “[T]he terms ‘waiver’ and ‘forfeiture’ have long been used interchangeably. The United States Supreme Court recently observed, however: ‘Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the “intentional relinquishment or abandonment of a known right.” [Citations.]’ [Citation.]” [Citation.]’ [Citation.]” (In re Stier (2007) 152 Cal.App.4th 63, 74; see also People v. Medina (2009) 171 Cal.App.4th 805, 817; People v. Ramirez (2008) 159 Cal.App.4th 1412, 1427.) Thus, even if defendant may not have forfeited his right to assert the constitutional invalidity of the probation conditions by failure to object, we must examine the terms of the plea agreement to determine if he has waived the right to appeal.
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 to us in the present case is that defendant’s waiver of the right to appeal is articulated in terms that are neither vague nor limited. Defendant not only signed the written plea agreement in which he declared, “I hereby give up my right to appeal from this conviction, including an appeal from the denial of any pretrial motions, ” he also orally advised the trial court at the change of plea hearing, “I give up my right to appeal.” Nothing in the terms of the plea agreement or defendant’s waiver at the hearing suggests a reservation of the right to challenge the probation conditions, or any other restriction on the scope of the waiver.
Defendant’s claim that the probation conditions were not actually imposed until the subsequent sentencing hearing is unavailing to preserve his attack upon them, although we recognize that “a waiver of appeal rights does not apply to ‘ “possible future error” [that] is outside the defendant’s contemplation and knowledge at the time the waiver is made.’ [Citations.]” (People v. Mumm (2002) 98 Cal.App.4th 812, 815.) The probation conditions at issue in the present case were recited and specifically agreed upon at the change of plea hearing, where the plea agreement was accepted. At the sentencing hearing the court discussed the nature of the probation conditions with defendant and imposed sentence upon him as specified and expressly approved in the prior plea agreement. Where, as here, “the defendant agrees to a bargain which includes a specific or indicated sentence, and if that is the sentence actually imposed, the defendant’s waiver will foreclose appellate review of the sentence; any challenge to the sentence will be deemed a challenge to an integral component of the bargain. [Citations.] The waiver will not cover claims that the trial court imposed a sentence in excess of its fundamental jurisdiction or the terms of the bargain, but the waiver will not allow review of alleged error in the computation or imposition of the sentence, ...” (In re Uriah R., supra, 70 Cal.App.4th 1152, 1157–1158.) When the parties have agreed to a specified disposition, any challenge to that sentence attacks the validity of the plea itself. (See People v. Buttram (2003) 30 Cal.4th 773, 789; People v. Jordan (2006) 141 Cal.App.4th 309, 320.) Moreover, constitutional errors may be waived like any others. (See People v. Millwee (1998) 18 Cal.4th 96, 128–129; People v. Williams (1997) 16 Cal.4th 153, 250; People v. Padilla (1995) 11 Cal.4th 891, 971; People v. Champion (1995) 9 Cal.4th 879, 918; People v. Garceau (1993) 6 Cal.4th 140, 173; People v. Rudd (1998) 63 Cal.App.4th 620, 628.) Defendant has not asserted that the sentence failed to comply with the plea bargain or was in excess of the court’s fundamental jurisdiction. He has challenged the validity of probation conditions that were part of a plea bargain in which he expressly waived the right to appeal.
Other factors support a finding that defendant’s waiver of his appeal rights extends to the probation conditions. Defendant entered into a negotiated disposition which granted him significant benefits in the nature of dismissal of a multitude of charges and the promise of a suspended sentence and grant of probation, an outcome far below the maximum potential punishment. (See People v. Kelly (1994) 22 Cal.App.4th 533, 535–536.) The punishment subsequently imposed, including the specification of the probation conditions, did not deviate from the promised disposition. The beneficial result was an obvious motivation for the plea. In return, the People reasonably expected to receive the benefit of avoiding any risk of reversal of the probation conditions imposed by the trial court. We are persuaded that waiver of the right to appeal the validity of the probation conditions was within the reasonable expectation of the parties. Defendant may not receive the benefit of a bargain that avoids a potentially harsher sentence by entering a plea in exchange for a waiver of rights, then seek to avoid the waiver so as to improve the bargain on appeal. (See People v. Chatmon (2005) 129 Cal.App.4th 771, 773; People v. Vera (2004) 122 Cal.App.4th 970, 983.)
We find that defendant’s waiver of the right to appeal was knowing, intelligent and voluntary, and encompassed the right to seek review of the constitutional validity of the probation conditions imposed upon him. He has not claimed that sentencing errors unrelated to the prior plea bargain occurred, or that the trial court’s subsequent finding of probation violations was unjustified – other than due to the invalidity of the conditions. All of the issues raised by defendant were expressly waived by his plea.
Accordingly, the appeals are dismissed. (People v. Berkowitz (1995) 34 Cal.App.4th 671, 678.)
We also observe that defendant’s challenge to the probation condition that prohibited him from “communicating with third parties about the alleged victim, ” is not cognizable for another reason. At the probation revocation hearing the trial court struck the condition as invalid, and did not find defendant in violation of probation on that basis. With the offending condition already stricken, we cannot give defendant effective relief in this appeal by invalidating it. That part of the appeal is therefore moot. (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1317.)
We concur: Marchiano, P. J., Banke, J.