Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCN236484, K. Michael Kirkman, Judge.
NARES, Acting P. J.
A jury convicted Stephen J. Langosh of resisting a peace officer in the discharge of his or her duties (Pen. Code, § 148, subd. (a)(1)), a misdemeanor, and acquitted him of carrying a concealed firearm (§ 12025, subd. (a)(2)) and brandishing a firearm (§ 417, subd. (a)(2)). The jury was unable to reach a verdict on a count of assault with a deadly weapon, and a mistrial was declared on that count. Langosh subsequently entered a negotiated guilty plea to assault with force likely to cause great bodily injury (§ 245, subd. (a)(1)). Under the plea bargain, the prosecution agreed to dismiss an allegation that Langosh personally used a deadly weapon; as a result of this dismissal, the assault count would not be considered a serious/violent prior conviction or strike in the future. The plea bargain also called for Langosh to waive (1) his right to later seek reduction of the assault count to a misdemeanor (see § 17, subd. (b)), and (2) his appeal rights to the resisting an officer conviction.
Statutory references are to the Penal Code.
The trial court suspended imposition of sentence and placed Langosh on probation for four years, conditioned on, among other things, serving 270 days in jail, not possessing a weapon, completing 100 hours of volunteer work at a nonprofit organization, and completing an anger management class. The court also stayed the balance of the 270-day custody order pending successful completion of probation.
Langosh personally filed a notice of appeal stating he was appealing from the jury trial. Langosh did not obtain a certificate of probable cause.
FACTS
At approximately 7:00 p.m. on October 31, 2007, Randolph Gallan took his wife, stepdaughter, son and grandson to Vista to go trick or treating. Gallan parked his truck in front of Langosh's residence.
Langosh came out of the house and started arguing with Gallan about parking in front of his house and staying off his property. Gallan had not entered Langosh's property. Finally, Gallan told Langosh: "Get the hell away from me." Gallan walked away to join his family, who had gone ahead.
Ten minutes later, Gallan, accompanied by his wife, returned to move the truck, which had been sprayed with water. Gallan heard profanities coming from the window of the Langosh residence. Gallan made a gesture at Langosh, who then came outside. Langosh, who was carrying what appeared to be a metal pipe, walked quickly to Gallan and the two men argued while "nose to nose." Langosh poked Gallan in the chest several times with his finger. Gallan told Langosh that if he touched him again, "I will f------ hurt you." Langosh blindsided Gallan with a swing of the metal object, hitting him between the neck and shoulder. Gallan punched Langosh in the face, took him to the ground with a choke hold, and pinned him down. Gallan's wife managed to grab the metal object from Langosh's hand and screamed for help.
Langosh claimed it was a metal walking stick.
Sven Hoflund, who was trick or treating with his family, heard the screams and approached the scene. Hoflund told Gallan to get off of Langosh; Gallan complied. According to Hoflund, as Langosh was standing up, he pulled out a revolver from his pocket and held it at his side with the barrel pointing to the ground. Hoflund yelled: "He's[sic] got a gun." Langosh walked back into his house.
Although sheriff's deputies found other weapons in Langosh's residence, they did not find a revolver.
Sheriff's deputies responded to the scene and set up a perimeter around the Langosh residence. Despite repeated messages by sheriff's personnel over a loudspeaker directing Langosh to exit the house, as well as similar messages from law enforcement helicopters, Langosh and his elderly mother remained in the house for 46 hours. It was not until approximately 5:00 p.m. on November 2 that Langosh came out of the house. At that time, a sheriff's detective announced he had an arrest warrant.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth evidence in the superior court. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as a possible, but not arguable issue: whether the waiver of Langosh's appellate rights to the section 148, subdivision (a)(1) conviction was proper when a possible issue is the sufficiency of the evidence.
We granted Langosh permission to file a brief on his own behalf. He has responded.
Langosh contends he has the right to appeal his conviction of section 148, subdivision (a)(1), and argues the evidence was insufficient to support the conviction. Langosh is mistaken.
At the change of plea hearing, the following colloquy took place:
"THE COURT: Mr. Langosh, regarding the [Penal Code section] 148, the charge the jury convicted you on, you have a right to appeal the determination of the jury in the matter and any sentence of the court within 30 days of date of sentencing, and understanding that, that you have that right, you understand you'll be foregoing that right to appeal as a result of this plea agreement, this disposition between yourself and the prosecution. [¶] Do you understand that, sir?
"THE DEFENDANT: Yes.
"THE COURT: Very good. Is that what you wish to do?
"THE DEFENDANT: Yes, Your Honor."
"[A] defendant may validly waive his right to appeal as part of a plea bargain. A waiver of appeal is proper, 'provided such waiver is knowing, free and intelligent.' " (People v. Kelly (1994) 22 Cal.App.4th 533, 535.) Here, the record shows Langosh waived the right to appeal his section 148 conviction "with full knowledge and understanding of the consequences." (Id. at p. 536.) In exchange, Langosh received significant benefits, including the dismissal of the allegation that he personally used a deadly weapon, which would have made his assault conviction a strike in the future.
As our Supreme Court noted in People v. Panizzon (1996) 13 Cal.4th 68, 80:
" 'When a guilty . . . 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.' . . . 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."
The right to appeal is statutory, not constitutionally based. (People v. Vargas (1993) 13 Cal.App.4th 1653, 1659.) "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. . . ." (Ibid.)
The record clearly shows that Langosh's waiving of his appellate rights with respect to the resisting an officer count was knowing, intelligent and voluntary. He must be held to his bargain.
"[D]efendants 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." (People v. Hester (2000) 22 Cal.4th 290, 295.)
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issue referred to by appellate counsel, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Langosh on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J. IRION, J.