Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07120
ROBIE, J.
Defendant David Irwin Kimble pled no contest to infliction of corporal injury on a cohabitant and admitted a prior strike conviction in exchange for a sentence of four years in state prison. The plea agreement included a waiver of “all right[s] to appeal on both the judgment of the Court and any decisions on motions which precede this plea or judgment.”
Despite this waiver, defendant now appeals, contending the trial court erred in failing to conduct a Marsden hearing. Because defendant waived his right to appeal, however, we will dismiss the appeal.
People v. Marsden (1970) 2 Cal.3d 118 .
FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying defendant’s conviction are not necessary to the resolution of this appeal. It is sufficient to note that defendant was charged with two counts of infliction of corporal injury on a cohabitant and one count of vandalism. The People also alleged that defendant had a prior strike conviction and a prior prison term. Under the plea agreement, one count of infliction of corporal injury on a cohabitant, the vandalism charge, and the prior prison term were dismissed in exchange for a four-year sentence on the remaining charge of corporal injury and the strike enhancement.
Before entering his no contest plea, defendant received a three-page document entitled “DECLARATION BY DEFENDANT” (plea form). The pertinent portion reads as follows:
“I am the defendant in the above-entitled criminal action. In support of my motion to change my plea(s) to be made in open court personally and by my attorney, I declare that: [¶] . . . [¶] 6. I waive all right[s] to appeal on both the judgment of the Court and any decisions on motions which precede this plea or judgment. Appeal is not waived as to sentencing errors. [¶] . . . [¶] 14. My lawyer explained this form and its entire contents to me and I understand what I have said in this Declaration and the consequences thereof.”
At the end of the form, defendant’s lawyer signed a declaration reading, “I am the attorney for the defendant. I have gone over this form with my client and have explained the foregoing rights to the defendant and answered all the defendant’s questions with regard to this plea. I have discussed the facts of this case with the defendant and explained the consequences of the plea(s), the elements of the offense(s), and the possible defenses. To the best of my knowledge and belief, defendant understands the matters set forth in this declaration and each of the statements herein is accurate and true, and is voluntarily and understandingly made. I witnessed the defendant’s execution of this declaration. I CONCUR . . . in this plea and the defendant’s decision to waive constitutional rights.”
At the plea hearing on April 3, 2007, the trial court asked defendant whether he had gone over the agreement with his attorney and whether he had signed and initialed it. Defendant stated that he had. The court then asked if defendant had “[a]ny questions at all as to what you’ve read or signed or initialed.” Defendant answered, “No, sir.”
Defendant entered a plea of no contest to infliction of corporal injury on a cohabitant and admitted his prior strike as an enhancement. Defense counsel presented the police report and the preliminary hearing transcript for the factual basis of the case. The court found that defendant understood his constitutional rights and the consequences of his plea and that he understandingly and voluntarily pled and waived those rights. The court then accepted the plea.
Approximately six weeks after entering his plea, defendant filed a Marsden motion for the appointment of alternate counsel. In an attached letter, defendant asked to withdraw his plea, alleging that his counsel had pushed him into accepting the deal.
At his sentencing hearing, the court began to question defendant about his Marsden motion and the issues involved. After some questioning, defendant agreed to continue with the sentencing hearing; however, he did ask about his ability to appeal the decision. The court appointed a conflict attorney to review the case and advise defendant on any grounds for withdrawal of the plea.
On June 28, 2007, through the conflict attorney, defendant filed a motion to withdraw his no contest plea. The trial court denied the motion.
DISCUSSION
On appeal, defendant argues the trial court erred by not holding a Marsden hearing after he filed a request for the hearing. The People argue defendant is precluded from raising this claim of error because he waived his appeal rights when entering his plea. The People are correct.
In People v. Panizzon (1996) 13 Cal.4th 68, the California Supreme Court explained that plea agreements waiving certain constitutional rights, including the right to appeal, are valid. “‘When a guilty [or no contest] plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.’ [Citations.] Of course, before taking the plea, the trial court must admonish defendant of the constitutional rights that are being waived, as well as the direct consequences of the plea. [Citation.] 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.” (Id. at p. 80.)
While a defendant may waive the right to appeal, “[t]o 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.] The voluntariness of a waiver is a question of law which appellate courts review de novo.” (People v. Panizzon, supra,13 Cal.4th at p. 80.) Further, “a court may rely upon a defendant’s validly executed waiver form as a proper substitution for a personal admonishment.” (Id. at p. 83.) “‘Only if in questioning the defendant and his attorney the trial court has reason to believe the defendant does not fully comprehend his rights, must the trial court conduct further canvassing of the defendant to ensure a knowing and intelligent waiver of rights.’” (Ibid.)
Here, defendant’s signed declaration specifically and unequivocally states he waived his rights to appeal “the judgment” and “any decisions on motions which precede [the] plea or judgment.” Only sentencing errors are excepted. Defendant acknowledged that his attorney had explained the plea form to him and that he understood both the declaration and the consequences of that declaration. Defense counsel also indicated that he had explained the plea form and its contents to defendant, as well as the consequences of a no contest plea. Defense counsel acknowledged that he believed that defendant understood the matters set forth in the declaration. The court specifically asked defendant whether he had any questions about the plea, and he stated that he did not. The court also reiterated the contents of the agreement and asked whether defendant understood the plea, and he stated that he did.
As in Panizzon, the plea form here and the in-court questioning raised “no doubts as to defendant’s understanding of his rights and the consequences of his no contest plea.” (People v. Panizzon, supra, 13 Cal.4th at p. 84.)
Defendant attempts to circumvent the agreement by arguing that his Marsden motion “followed th[e] plea and therefore was not covered by the language of the form.” However, the waiver was not limited solely to events preceding the plea. Instead, it specifically included “all right[s] to appeal on both the judgment of the Court and any decisions on motions which precede this plea or judgment.” (Italics added.) Only sentencing errors were excepted. The trial court’s decision not to conduct a full Marsden hearing occurred after the plea agreement was signed, but before the entry of judgment. Therefore, defendant’s assertion that the trial court erred in not holding a full Marsden hearing is forfeited because it is within the scope of the waiver. (See People v. Panizzon, supra,13 Cal.4th at p. 85.)
DISPOSITION
The appeal is dismissed.
We concur: DAVIS, Acting P.J., BUTZ, J.