Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. Nos. SS061492, SS061849, and SS073017
Mihara, Acting P. J.
Defendant Shantel Olivia Lerma was committed to state prison to serve a term of 19 years after she entered guilty pleas to narcotics, conspiracy, and street terrorism counts, and admitted numerous enhancement and prior conviction allegations in three separate cases. Her sole contention on appeal is that the trial court erroneously denied her an additional 99 days of presentence custody credit. The Attorney General maintains that (1) defendant waived her right to those credits when she entered her pleas in the two earlier cases, (2) defendant forfeited her right to raise this issue on appeal by failing to raise it at the sentencing hearing, and (3) defendant lacks the right to raise this issue on appeal because she waived her appellate rights as part of the plea agreement that resolved the final case and the sentences for all three cases. We conclude that defendant’s waiver of her appellate rights precludes her from prosecuting this appeal, and we dismiss the appeal.
As the circumstances of defendant’s offenses are not relevant to the sole issue on appeal, we do not recount them.
In July 2006, defendant was charged by information with possession of a controlled substance for sale (Health & Saf. Code, § 11378), possession of a controlled substance while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a)), and conspiracy to bring a controlled substance into a prison (Pen. Code, §§ 182, subd. (a)(1), 4573). These counts were accompanied by arming (Pen. Code, § 12022, subd. (c)) and gang (Pen. Code, § 186.22, subd. (b)(1)) enhancement allegations. These three counts were alleged to have occurred in April 2006.
In October 2006, defendant was charged by second amended information with an additional count of conspiracy to bring a controlled substance into a prison (Pen. Code, §§ 182, subd. (a)(1), 4573) with a gang enhancement (Pen. Code, § 186.22, subd. (b)(1)) allegation, and a count of street terrorism (Pen. Code, § 186.22, subd. (a)). These two counts were alleged to have occurred in June 2006. It was further alleged that defendant had committed the June 2006 offenses while released from custody (Pen. Code, § 12022.1) for the April 2006 offenses.
Defendant pleaded guilty or no contest to all of the counts arising from her April 2006 and June 2006 offenses and admitted the accompanying allegations. In April 2007, the court imposed a nine-year state prison sentence for the April 2006 offenses and a consecutive four-year prison sentence for the June 2006 offenses, but it suspended execution of these sentences and placed defendant on probation. As conditions of her probation, defendant was ordered to serve 365 days in jail for the April 2006 offenses and 24 days in jail for the June 2006 offenses.
At the April 2007 sentencing hearing, after the court had described the probation conditions, the following colloquy occurred. “[THE COURT:] Now, the credits, they are different. [¶] PROBATION OFFICER: The credits on page 7 of the memorandum you have, Judge, are current through today. [¶] THE COURT: Is she willing to waive credits over 365 now and in the future? [¶] MR. ERDBACHER [defendant’s trial counsel]: Sure. That is fine. I think you can give her credit for time now, if you wanted to. That’s okay. [¶] THE COURT: And in this case, Miss -- let’s see, 310 plus 154 is correct as of today, Ms. Kenyon? [¶] PROBATION OFFICER: That’s correct. [¶] THE COURT: Okay. On this case you’re ordered to serve 365 days in the County Jail, credit for 300 -- actually, let me back up. You will be given credit for 310 actual, 154 good time/work time, for total credits of 464. [¶] Do you accept those conditions on this case? [¶] THE DEFENDANT: Yes. [¶] THE COURT: Any questions? I don’t want you to have any questions, Miss Lerma, about what your probation conditions are.” Defendant did not pose any questions. The court asked again: “Do you accept those conditions on that case at this point?” Defendant responded: “Yes.” The court’s signed minute orders from this hearing state: “Credit for time served of 310 days plus 154 days good and work time, for a total of 464 days. [¶] Defendant waives credits over 365 days.”
This memorandum does not appear in the appellate record before us.
In October 2007, defendant was arrested for new narcotics offenses, and a probation violation petition was filed. In April 2008, she pleaded guilty to a new count of possession of a controlled substance for sale (Health & Saf. Code, § 11351) in October 2007, and admitted gang (Pen. Code, § 186.22, subd. (b)(1)) and prior conviction (Pen. Code, § 1170.12; Health & Saf. Code, § 11370.2) allegations. She also admitted violating her probation. Her plea and admissions were entered in exchange for a stipulated 12-year state prison sentence for the October 2007 offense, dismissal of the remaining October 2007 counts and allegations, and a consecutive seven-year state prison term for the April 2006 and June 2006 offenses.
Before she entered her plea and admissions, defendant signed a five-page document entitled “Defendant’s Waiver of Rights Regarding Entry of Plea and Any State or Federal Writs and Appeals.” She acknowledged therein that her plea was being entered “with the understanding that I will receive a total sentence of 19 years in the California Department of Corrections.” The document detailed that she would receive a 12-year state prison sentence for the October 2007 offense, a consecutive three-year term for the April 2006 offenses, and a consecutive four-year term for the June 2006 offenses. The document did not explicitly mention the April 2007 custody credit waiver.
The only explicit mention of custody credit in the document was defendant’s acknowledgment “that my custody credits will be limited by Penal Code Section 1170.12(a)(5).”
An explicit waiver of defendant’s appellate rights was included in the document. “I agree to give up all my rights regarding both state and federal writs and appeals. This includes, but is not limited to, the right to appeal my conviction, the judgment, sentence, and any other orders previously issued by this court or any other court, state or federal, in connection with this case.... I specifically agree to waive any right to appeal the sentence negotiated in this case, including the agreed term and consecutive sentences. I agree not to file any collateral attack on my conviction or sentence at any time in the future.” After entering her plea and admissions, defendant explicitly acknowledged orally that she was “waiving [her] right in state court and federal court to seek any kind of appellate review or to challenge the plea and sentencing any way....”
The May 2008 probation report stated: “On April 25, 2007, the defendant waived all credits over 365 days.”
At the commencement of the July 2008 sentencing hearing, defendant’s trial counsel initiated a discussion about “credits.” “As to credits, it’s my view the credits set forth in the Probation Department’s report without any modification is correct, and I would object to any modification to the numbers.” The probation officer then identified the credits for each case and stated “that’s in light of a Johnson waiver on April 25, 2007 as to both cases, the [April 2006 and June 2006] cases.” “[S]he waived all credits over 365....” Defendant’s trial counsel did not claim that defendant had not waived credits over 365 days. Instead, he argued that “365 days was as to each case, not a combination of the cases, so she should get up to 365 days in each of the two previous cases.” The prosecutor disagreed with that position, but he noted that, “[a]s to the credit waiver, I think everyone seems to agree that she did waive credits over 365.” Defendant’s trial counsel confirmed that “she waives in excess of... 365 days on each case the way the minute orders read.”
The court imposed sentence in accordance with the plea agreement. The court awarded defendant 365 days of custody credit against her sentence for the April 2006 offenses, 24 days of custody credit against her sentence for the June 2006 offenses, and 345 days of custody credit against her sentence for the October 2007 offense. After the court described the prison term and the custody credit for each case, the court asked defendant “do you understand and accept what we’ve done....” Each time defendant said “Yes.” Defendant filed a timely notice of appeal “directed only as to the sentencing and time calculation thereof.”
II. Analysis
Defendant’s sole contention on appeal is that she did not make a valid waiver of credits over 365 days at the April 2007 hearing, so the trial court erred in failing to award her another 99 days of custody credit. The Attorney General maintains that defendant is precluded from raising this issue on appeal because she waived her appellate rights. Defendant contends that her waiver of her appellate rights did not extend to the custody credit issue that she raises in this appeal. She claims that she “waived her appeal rights with respect to the plea entered in [the October 2007 case], but the scope of the waiver did not extend to issues involving credits awarded in [the April 2006] case.” She maintains that her current contention “does not involve her ‘sentence [or] any other orders previously issued... in connection with this case’ both because the phrase ‘this case’ plainly refers to [the October 2007 case], and not to [the April 2006 case], and because the instant issue pertains solely to an error in the award of custody credits, not the sentence imposed or any other order ‘previously issued’ in [the October 2007 case].” Defendant points out that the waiver document does not expressly mention the custody credit awarded to her in any of the cases. She concludes that her waiver “neither explicitly nor by reasonable implication is susceptible to an interpretation which would encompass an agreement to waive issues pertaining to custody credits granted in previous cases.” Finally, defendant argues that, even if the waiver extended to custody credit generally, it “still would not extend to the court’s error in failing to grant Lerma full credits for [the April 2006 case] since such error occurred subsequent to the plea where the waiver was given.”
“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.... [¶] To be enforceable, a defendant’s waiver of the right to appeal must be knowing, intelligent, and voluntary.” (People v. Panizzon (1996) 13 Cal.4th 68, 80 (Panizzon).)
Defendant does not challenge the validity of her waiver of her appellate rights; she claims only that the scope of her waiver did not extend to any issue regarding custody credit for the cases arising from the April 2006 and June 2006 offenses. She relies on People v. Vargas (1993) 13 Cal.App.4th 1653 (Vargas). Unlike the lengthy and detailed waiver in this case, the written waiver in Vargas stated only “ ‘I waive my appeal rights.’ ” (Vargas, at p. 1662.) The Court of Appeal found that the simple language of this waiver did not extend to “future sentencing error” by the trial court such as the “erroneous deduction of conduct credits” that Vargas sought to raise on appeal. (Vargas, at pp. 1662-1663.)
Vargas is readily distinguishable from the case before us. Defendant’s waiver explicitly stated that it extended to, “but is not limited to, the right to appeal my conviction, the judgment, sentence, and any other orders previously issued by this court or any other court, state or federal, in connection with this case.” (Italics added.) Although defendant contends that her waiver was limited to the October 2007 offenses, the waiver contained explicit references to her April 2006 and June 2006 offenses, and it expressly extended the scope of the waiver to orders by other courts that were “connect[ed]” to this case. A more comprehensive waiver can hardly be imagined. The context of defendant’s waiver, which contemplated a global settlement of the three cases, undoubtedly established that the three cases were connected and therefore that the waiver extended to any previous orders issued in any of the three cases. The court’s April 2007 minute orders in the April 2006 and June 2006 cases were such orders, and these orders made findings that defendant had waived custody credit over 365 days. Consequently, an appellate challenge to the validity of this finding falls within the scope of defendant’s waiver.
Defendant’s remaining claim is that the waiver did not apply to the trial court’s award of custody credit because that award took place at her sentencing hearing, which occurred after the waiver. In Panizzon, the defendant asserted that “a specific waiver of the right to appeal a negotiated sentence is unenforceable as to ‘unforeseen or unknown errors’ occurring subsequent to the waiver.” (Panizzon, supra, 13 Cal.4th at p. 85, italics added.) The California Supreme Court responded: “Defendant’s characterization of the issue on appeal [a challenge to the proportionality of the sentence to which the defendant had agreed in the plea bargain] as an ‘unforeseen or unknown error’ is off the mark because the sentence imposed by the court was neither unforeseen nor unknown at the time defendant executed the Waiver and Plea agreement.” (Panizzon, at pp. 73-74, 86.)
Defendant seizes on this language and claims that her appellate waiver was inapplicable because the trial court’s July 2008 failure to award her custody credit for the 99 days was an “unforeseen or unknown” error which occurred subsequent to her waiver. The record does not support her claim. At the time of defendant’s April 2008 waiver, both defendant and her trial counsel, who she explicitly acknowledged had advised her regarding her waiver, could not have been unaware of the contents of the court’s April 2007 minute orders. These 2007 orders set forth defendant’s probation terms and made explicit findings that she had waived credits over 365 days. It defies logic to presume that, in the year that elapsed prior to her waiver, both defendant and her attorney remained ignorant of the contents of the April 2007 orders that contained both her probation terms and the court’s credit waiver finding. Undoubtedly, one or both of them were aware that the trial court had made the credit waiver finding in April 2007. Hence, by April 2008, any alleged error by the court in making this finding could not be characterized as “unforeseen or unknown” nor could it be viewed as “subsequent” to the waiver.
Since the court’s April 2007 minute orders were clearly within the scope of defendant’s April 2008 waiver, she is precluded from making an appellate challenge to the validity of the court’s findings that she had waived custody credit over 365 days. As that is the sole challenge that she makes in this appeal, her appeal must be dismissed.
III. Disposition
The appeal is dismissed.
WE CONCUR: McAdams, J., Duffy, J.