Opinion
F049426
12-13-2006
THE PEOPLE, Plaintiff and Respondent, v. SHEILA DENISE SMITH WILLIAMS, Defendant and Appellant.
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Stan Cross, Senior Assistant Attorney General, Julie A. Hokans and Sarah J. Farhat, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Levy, Acting P.J., Hill, J. and Kane, J.
Defendant pled guilty to forgery and admitted to prison priors in return for a dismissal of a second degree burglary count and prison prior allegations. At sentencing, she was given an eight-month sentence consecutive to a prison term served on another case. In her appeal, defendant contends the eight-month consecutive sentence violated the plea agreement that called for a concurrent sentence. The people have moved the court to dismiss the appeal because defendant failed to obtain a certificate of probable cause (Pen. Code, § 1237.5; Cal. Rules of Court, rule 30). We conclude that defendants claim is an attack on the validity of the plea that is not reviewable on appeal because she failed to obtain a certificate of probable cause. We dismiss the appeal.
FACTS
Defendant was charged by information filed on September 1, 2005, with one count of second degree burglary (Pen. Code, § 459) and one count of forgery (Pen. Code, § 470, subd. (d)). The information also alleged she committed the offenses while on bail (Pen. Code, § 12022.1) and had served two prison priors. (Pen. Code, § 667.5, subd. (b).) On September 16, defendant pled guilty to the forgery count, admitted two prison priors, and the balance of the allegations in the information were dismissed by the People. In relevant part, the colloquy between the court, counsel and the defendant included the following:
"[THE COURT:] Now, before we do anything else, what are we going to do with Ms. Williams other case? Its in the setting for trial stage right now.
"MR. JOHNSON: Id like to make a counteroffer to the District Attorney to plea to Count II for eight months cc and ask that they drop the out on bail enhancement.
The reference to "cc" is shorthand for concurrent.
"THE COURT: All right. Lets go off the record briefly.
"(Discussion held off the record.)
"THE COURT: Ms. Williams, what the District Attorneys willing to do is if youre willing to plead guilty in your other case, theyre willing to drop the out on bail enhancement. And the prison priors youve already admitted to would kind of go along. What that does is that would save you the possibility of getting an additional two years in custody.
"It — I dont know if youre asking for my opinion. Ill — its a pretty good deal for you, but its completely up to you, you know, whether you want to accept that or not.
"THE DEFENDANT: Im going to grant it, sir.
"THE COURT: Okay. Then
"THE CLERK: Judge, Im sorry. I only have one count and I dont have any enhancements on my minute order.
"THE COURT: You dont?
"THE CLERK: No. All I
"THE COURT: Here. Let me give you — you want a copy of the information?
"THE CLERK: Yeah.
"THE COURT: Because it has a bunch of priors charged.
"THE CLERK: Thats in case ending in 655; right?
"THE COURT: Correct.
"(Discussion held off the record.)
"THE COURT: Okay. Back on the record in Ms. Williams matter.
"MS. OWEN: Actually, just to make sure were clear, the information includes the 459. The complaint does not have it.
"THE COURT: Oh, it does?
"THE CLERK: Oh, it doesnt. Thats why.
"THE COURT: Hold on a second. It does. Thats right.
"THE CLERK: Just tell me its a felony.
"THE COURT: Yeah. You better take the
"MR. JOHNSON: I have an extra copy.
"THE COURT: Yeah. Can you just give my clerk an extra copy, please?
"And, Mr. Johnson, what is the plea going to be to?
"MR. JOHNSON: Id like it to be to 470. That reflects the conduct more.
"THE COURT: Does it matter, Ms. Owen?
"MS. OWEN: No.
"THE COURT: Okay. Okay. Lets see. Back on Ms. Williams matter now. Were talking about case No. 1089655.
"And, Ms. Williams, Im going to have to read a whole long string of things to you. Okay?
"THE DEFENDANT: Okay.
"THE COURT: So whenever I need an answer, Ill look up and ask you for whatever your answer is. Ive been advised that you intend to plead guilty this morning to Count II of the information, which is a violation of Penal Code Section 479(D) with the understanding that youd be sentenced to an additional eight months to whatever sentence youre going to receive in — in the case that you were just convicted in jury trial for.
"Actually, let me go off the record for a second.
"(Discussion held off the record.)
"THE COURT: Okay. Back on the record then.
"And is this going to be a guilty plea or a no contest plea?
"THE DEFENDANT: I — a guilty plea.
"THE COURT: All right. And, Ms. Williams, in the forgery case, are you pleading guilty because you are, in fact, guilty?
"THE DEFENDANT: Yes, Your Honor.
"THE COURT: Okay.
"And do the parties stipulate to a factual basis for the plea in this case based upon — hold on — the preliminary hearing transcript thats in the Courts file?
"Ms. Owen: Yes.
"MR. JOHNSON: Yes.
"THE COURT: Okay. Court will find a factual basis.
"The maximum sentence, Ms. Williams, for this plea would be eight months consecutive to what youre receiving in the other case.
"Do you understand that?
"THE DEFENDANT: Yes, sir." (Emphasis added.)
Sentencing occurred on October 26, 2005. At that time the court imposed an eight-month term consecutive to the prison term imposed in the other case. The court first announced its sentence on the other case and then when discussing what sentence would be appropriate in the instant case, the following exchange occurred between the court, counsel for the people (Ms. Owen) and for the defendant (Mr. Johnson):
"[THE COURT] Regarding Ms. Williams other matter, the issue is what — what is the appropriate thing to do in this matter. The Court has the option of sentencing Ms. Williams consecutively, which would be an eight-month consecutive term.
"MR. JOHNSON: That was the agreement.
"THE COURT: It was eight months consecutive was the agreement; is that right?
"MS. OWEN: Yes." (Emphasis added.)
CONTENTIONS
Defendant contends that the plea agreement called for an eight-month concurrent term. She seeks enforcement of that agreement. Respondent contends that the plea agreement called for a consecutive term but that since defendants claim on appeal is an attack on the validity of the plea, the appeal may not be maintained because defendant failed to obtain a certificate of probable cause. (Pen. Code, § 1237.5, rule 31(d).)
After defendant filed her opening brief, respondent filed a motion to dismiss the appeal. Thereafter, defendant filed a letter brief opposing the motion to dismiss. This court issued an order indicating that a ruling on respondents motion to dismiss would be deferred pending consideration of the appeal on its merits.
DISCUSSION
Penal Code section 1237.5 provides that no appeal shall be taken by a defendant from a judgment of conviction upon a plea of guilty except where defendant has filed a written statement under oath showing reasonable constitutional jurisdiction or other grounds going to the legality of the proceedings and the trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court. California Rules of Court, rule 30(b)(4) provides that a defendant need not obtain a certificate of probable cause if the appeal is based on a denial of a motion under Penal Code section 1538.5 or the appeal is based on grounds that arose after entry of the plea and do not affect the pleas validity.
Where a defendant challenges a negotiated sentence imposed as part of a plea bargain, she must obtain a probable cause certificate in order to attack the sentence on appeal. (Pen. Code, § 1237.5; People v. Panizzon (1996) 13 Cal.4th 68, 79.)
In the instant case it is undisputed that defendant did not seek or obtain a certificate of probable cause. The parties disagree as to whether the defendants contentions on appeal affect the validity of the plea.
Defendant contends that she is not contesting the validity of her plea bargain but simply asserting a right to having the terms of the plea agreement enforced. However, the record below does not support her claim. While it is true that her attorney proposed an eight-month concurrent term, the actual plea agreement that defendant and her counsel agreed to, called for an eight-month consecutive term. The court specifically asked the defendant if she understood that under the plea her maximum sentence would be eight months consecutive to what she would be receiving in the other case. The defendants response was that she understood this. After confirming the balance of the change of plea terms, and after obtaining the knowing and voluntary waiver of rights, the court asked defense counsel if she consented to the change of plea to which counsel responded that she did. The court also asked counsel if she had spoken to her client to explain her rights, defenses and consequences of her plea to which she responded yes. And finally, on the day of sentencing, when this very subject came up again, defense counsel and counsel for the people confirmed that the agreement made at the time of the change of plea was for an eight-month consecutive sentence. Thus, for defendant to now urge the court to consider that the agreement was something other than an eight-month consecutive sentence is to challenge the validity of the actual plea agreement made.
Defendants characterization that she is not contesting the validity of this plea is not accurate. She seeks to challenge the very sentence she negotiated as part of the plea. (People v. Panizzon, supra, 13 Cal.4th at p. 89.) As such, defendant is required to obtain a certificate of probable cause before challenging her plea. The purpose for requiring her certificate of probable cause is to discourage frivolous or vexatious appeals challenging convictions following guilty pleas. The objective is to promote judicial economy. (Panizzon, supra, at p. 75-76.) Although some appellate courts have addressed the merits of a defendants appeal following a guilty plea despite a failure to comply with section 1237.5 and rule 31(d), that practice has been criticized by the Supreme Court as frustrating the very purpose of section 1237.5 to discourage frivolous appeals. (Panizzon, supra, at p. 89, fn. 15.)
The record below establishes that the plea agreement empowered the sentencing court to sentence defendant to eight months consecutive to the term imposed in the companion case. Her appeal seeks to change that agreement to an eight-month concurrent term. Regardless of how defendant characterizes it, she is challenging the very sentence that was negotiated as part of the plea. In order to pursue that claim on appeal, she must seek and obtain a certificate of probable cause. She failed to do so. Accordingly, respondents motion to dismiss the appeal is granted.
DISPOSITION
The appeal is dismissed.