P. v. Agnew

Filed 9/29/06 P. v. Agnew CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. Affirmed.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Charles C. Ragland and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant pled guilty to conspiracy to transport marijuana (Pen. Code, § 182), failing to file a tax return (Rev. and Tax. Code, § 25961), filing a false tax return (Rev. and Tax. Code, § 19406) and six counts of money laundering (Pen. Code, § 186.10). He was sentenced to five years in prison, to run concurrently with his federal sentence for a related federal crime. He did not seek and was not given a certificate of probable cause. (Pen. Code, § 1237.5) He appeals, claiming his motions to recuse the prosecutor and his office and to dismiss were erroneously denied. We do not reach the merits of his arguments, as his waiver of his right to appeal his preplea motions bars our review of the former and his failure to obtain a certificate of probable cause bars our review of the latter.

The facts surrounding these crimes are irrelevant to this appeal.

Issues and Discussion

1. Denial of Defendant’s Preplea Motion to Recuse the District Attorney’s Office and the Prosecutor.

In a motion before he pled guilty, defendant, a former Riverside County deputy district attorney^[1] who was representing himself, moved to recuse both the prosecutor and the Riverside County District Attorney’s Office. On July 9, 1993, the trial court denied the motion. On July 15, 1993, defendant entered into a plea bargain with the prosecutor. Defendant himself wrote out the terms of the bargain and showed it to the prosecutor and the two “agreed upon the language.” Section nine of the agreement states, “The defendant hereby waives^[2] his appeal rights as to any pre-trial motions heretofore heard.”

At the taking of the plea, defendant began by summarizing the counts to which he intended to plead guilty. The trial court then directed him to set forth the rest of the terms of the bargain. Defendant commented that he did not think the agreement was “too complicated.” Defendant read the first three terms of the bargain and substantial discussion took place between him, the trial court and the prosecutor over these terms. Defendant commented that the prosecutor was going to have to take over the job of reading the rest of the agreement into the record. The trial court said “I’d rather stop and have you read it [ into the record]. We will just take some time. Because if you are in such pain, you may not be paying attention to the agreement.

. . .

You have to acknowledge the agreement.” Defendant responded that he had written the agreement and he and the prosecutor had agreed on and modified its language. He continued, “[The prosecutor] and I negotiated the language and I drafted it. So I don’t think anybody realistically can sit there and say that I don’t know what’s in it. Besides, it’s my handwriting.” Defendant even offered to sign a declaration under penalty of perjury, as an addendum to the agreement, that he was aware of its contents. The trial court then said it was going to read the agreement to itself, then have defendant and the prosecutor sign each page. Both agreed to this.^[3] After the trial court made some modifications, to which defendant agreed, defendant acknowledged that he had initialed each page of the agreement and signed the last page twice. Defendant stated that he needed no more time to go over the agreement and despite his back pain, he “understood exactly what [he was] doing.” Defendant then entered his pleas, which the trial court accepted.

Aside from defendant’s meritless contention that the clause at issue did not contain the word “waives,”^[4] his only response to the People’s correct assertion that he bargained away his right to appeal the denial of his motion to recuse, is his argument that because he did not orally agree to it at the taking of the plea, it has no effect. He cites no authority for this proposition and it is equally without merit. Therefore, we will not address the substance of defendant’s contention that the trial court erred in denying his motion to recuse.

2. Denial of Defendant’s Postplea Motion to Dismiss

More than 10 years after entering his plea, but before he was sentenced, defendant moved to dismiss the conspiracy count (which, by then was no longer a count, but a conviction) on the ground of former jeopardy. He asserted that he had been convicted in federal court and sentenced there for what he claimed was the same activity as was involved in that conviction. As the People correctly point out, defendant was keenly aware of a possible former jeopardy issue before he pled guilty, when he raised it in June, 1993. He remained aware of it when he entered his guilty plea, which, the trial court pointed out in denying his motion to dismiss, was “an arm’s-length transaction.” In fact, defendant had entered his federal plea in April, 1993. As the People correctly assert, the instant matter is one defendant should have pursued by a motion to dismiss long before he pled guilty. Be that as it may, defendant’s failure to obtain a certificate of probable cause^[5] bars his claim that the trial court erred in denying his motion to dismiss the conspiracy count. (Pen. Code, § 1237.5; People v. Valenzuela (1993) 14 Cal.App.4th 837, 840; People v. Bonwit (1985) 173 Cal.App.3d 828, 832; People v. Perry (1984) 162 Cal.App.3d 1147, 1151-1152; People v. Jerome (1984) 160 Cal.App.3d 1087, 1094.)

Defendant claims that he could not have asserted the once in jeopardy argument when he entered his plea in 1993 because the fact necessary to its existence under federal law, i.e., his being sentenced in federal court,^[6] had not yet occurred. He argues that this excuses him from the requirements of Penal Code section 1237.5. Whatever his ability to assert the argument in 1993 is irrelevant to his failure to obtain a certificate of probable cause after he was sentenced in 2005. Moreover, at the time defendant entered his state plea, he had already pled guilty to what he now asserts is the same offense in federal court. By entering his plea here, he waived his defense of once in jeopardy, of which he was well aware when entering that plea. When he brought his motion to dismiss, he was, in fact, contesting the validity of the plea, and he cannot here seek review of the trial court’s ruling without a certificate of probable cause.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

RICHLI

J.

GAUT

J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line Lawyers.

^[1] Defendant was admitted to practice in January, 1972. He was a prosecutor from February 1972 until the fall of 1975. He then went into private practice, which was “almost 100% civil” by 1982. He was voluntarily placed on inactive status in 1990 due to complications from injuries he suffered in a 1985 body surfing accident.

^[2] We view with caution the assertion by appellate counsel for defendant in his reply brief that “it is not one-hundred percent clear that th[is] word . . . is ‘waives.’” From someone suffering from severe back pain, defendant’s penmanship is nothing short of remarkable. Certainly, we have no problem being 100 percent certain that he wrote the word “waives.”

^[3] It is apparent from the transcript of the hearing that defendant was more than eager to get the proceedings concluded. He confirmed this impression in a declaration he attached to his later Motion to Dismiss.

^[4] See fn. 2, supra.

^[5] He did not even request one.

^[6] This is in contrast to California law.