Filed 10/3/17 P. v. Chanchola CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. ARMANDO CANCHOLA, Defendant and Appellant.

H042580 (Monterey County Super. Ct. No. SS102792) ORDER MODIFYING OPINION, NO CHANGE IN JUDGMENT

BY THE COURT:

It is ordered that the opinion filed herein on September 26, 2017, be modified as follows:

On page 8, line 10, the number “38” is changed to “35” so the sentence reads:

“Moreover, in view of the express language in the waiver and plea agreement, the parties clearly contemplated that defendant would be sentenced to 35 years if he remained crime free between his entry of plea and sentencing, or up to 42 years if he committed a new crime during that period.”

There is no change in judgment.

Dated: __________________________

Premo, Acting P.J.

Elia, J. Mihara, J.

Filed 9/26/17 P. v. Canchola CA6 (original opinion)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. ARMANDO CANCHOLA, Defendant and Appellant.

H042580 (Monterey County Super. Ct. No. SS102792)

Defendant Armando Canchola pleaded no contest to two counts of voluntary manslaughter (Pen. Code, § 192, subd. (a))^[1] pursuant to a negotiated plea that he would receive a maximum of 35 years in prison. The plea agreement also provided that if defendant committed another crime between the time of his plea and the time of sentencing, his maximum sentence would increase to 42 years.

Defendant committed a crime while awaiting sentence and received 42 years in prison. On appeal, defendant argues that the court erred in increasing his sentence, because he was denied due process and the right to a jury trial on whether he committed a new crime. He argues that he never agreed to a court determination that he committed a new crime for the purpose of increasing his maximum sentence.

STATEMENT OF THE FACTS AND CASE[2]

On July 2, 2008, police responded to a homicide that occurred at North Street and Soledad Street in Soledad, California. Investigators learned that the victim, Cesar Vasquez, had been shot multiple times at close range as he sat in the front passenger seat of a Honda Accord. After the homicide, the driver of the Honda drove Vasquez to Aztlan Circle in Soledad, California, where the victim’s girlfriend called the police.

The driver of the Honda identified the shooter as defendant. Another informant identified defendant in a photo lineup as a person that she saw by the door of the Honda immediately after the shooting. Another informant told the police that defendant admitted killing Vasquez. The report also stated that, on October 6, 2010, Victor Martinez was shot in the head and spine by a single shooter as he sat in a vehicle. A witness later identified defendant as one of two possible assailants in a photo lineup. Another witness told officers that she saw defendant in her neighbor’s backyard after the shooting, burning clothes.

Following the killings, defendant was charged on May 7, 2014, with the crime of murder of Vasquez. (§ 187; count 1.) The information also alleged that defendant personally used a firearm in the commission of the offense (§ 12022.53), and he was acting to further the activities of a criminal street gang (§ 190.2, subd. (a)(22)).

Defendant was also charged with the crime of murder of Martinez (§ 187; count 2), with allegations of personal use of a firearm (§ 12022.53) and acting to further the activities of a criminal street gang (§ 190.2, subd. (a)(22)).

In addition to the murder charges, the information also alleged that defendant committed the crime of voluntary manslaughter against Vasquez (§ 192, subd. (a); count 3), with allegations of personal use of a firearm (§ 12022.5, subd. (a)), and action to further the activities of a criminal street gang (§ 186.22, subd. (b(1)(C)). Count 4 alleged the same voluntary manslaughter charges and enhancements for the death of Martinez (§ 192, subd. (a)).

The matter proceeded to trial. The jury could not reach a verdict as to each count and the court declared a mistrial. On May 7, 2014, defendant pleaded no contest to count 3, voluntary manslaughter of Vasquez, in violation of section 192, subdivision (a). He admitted that the crime was committed for the benefit of, in association with, or at the direction of a criminal street gang, within the meaning of section 186.22, subdivision (b)(1)(C). He admitted that he personally used a firearm within the meaning of section 12022.5, subdivision (a). He also pleaded no contest to count 4, voluntary manslaughter of Martinez, in violation of section 192, subdivision (a). The prosecution moved for dismissal of the other counts and enhancements, a motion taken under submission until the sentencing.

The plea was the result of a plea bargain for a stipulated sentence of 35 years. Defendant also agreed that if he committed a new crime between the time of his plea and the time of his sentencing, his maximum sentence could increase to 42 years.

At the change of plea hearing, the court said to defendant: “If you get into trouble between now and June 11th, which would be a Wednesday in June, then the 35-year lid is no longer the lid. The 42-year lid would be the lid. Do you understand that? [¶] If you stay out of trouble, it’s 35 years. You’re getting out. If you get into trouble, it could go up to 42. Do you understand? I’m not guaranteeing it would, but it could.” In response, defendant stated: “I understand that, but we didn’t talk about it.”

After a discussion between the court and defense counsel, defense counsel stated: “so [defendant] understands that if he is to commit a new crime, not any violation of jail rules but it would have to be a new crime, that then the Court could sentence him to more crime.” The court asked defendant: “Agreed?” to which defendant responded “Yeah.”

On June 5, 2014, the prosecutor gave notice that he intended to present evidence that defendant committed a crime following the entry of his plea and before his sentencing. On July 18, 2014, the court heard the evidence regarding the alleged criminal wrongdoing in a hearing that also served as the preliminary hearing with respect to the criminal complaint regarding the new allegations.

At the hearing, Monterey County Sheriff’s Deputy Michelle Bossuot testified that on May 24, 2014, she was assigned to duties at “J Pod,” a lockdown facility for Norteño gang members in the Monterey County jail. In the morning around 8:15, deputies began taking 14 inmates out of their cells to the outdoor yard. As they were taking the inmates out of their cells, one inmate resisted as Deputy Menezes was trying to search him. Deputy Bossuot saw the inmate, Pacheco, kick Deputy Menezes at least two times. Deputy Menezes took Pacheco back to J Pod and handcuffed him.

Deputy Menezes brought Pacheco out again, and told him to go down on his knees. An inmate named Cortez yelled “Get him! Get him! Get him!” Several inmates began running and five to seven of them began attacking Deputy Menezes.

Deputy Bossuot called for backup and deployed her taser at defendant, the first inmate she saw. Defendant was throwing punches at Menezes. After being struck by the taser, defendant dropped to the ground. The inmates stopped the attack after about 15 seconds. Deputy Menezes had a gash across his forehead and was covered in blood. Pacheco had a laceration on his chin and his face was bloody. Defendant told Deputy Bossuot that he never hit Deputy Menezes and that Deputy Bossuot had no reason to tase him.

After considering this evidence, the court concluded that defendant had committed another crime, which, the court said, made the 35-year sentence inapplicable and permitted a sentence of up to 42 years. The court proceeded to sentence defendant. The court imposed the term of 11 years for count 3 and a fully consecutive 11 years for count 4. The court imposed 10 years for the criminal street gang enhancement to count 3 (§ 186.22, subd. (b)(1)(C)) and 10 years, the upper term, for the gun use enhancement (§ 12022.5), for a total of 42 years. The court granted 1,595 days of presentence custody credit, consisting of 1,387 actual days and 208 conduct credits. The court also ordered fines, fees and restitution.

On October 16, 2015, this court granted defendant’s motion for relief from default for failure to file a timely notice of appeal, provided that a notice of appeal be filed within 10 days. A notice of appeal was filed on October 26, 2015.

DISCUSSION

Defendant argues that the court erred in sentencing him to 42 years in state prison. He asserts that while he did agree as part of his plea bargain that his sentence could be increased if he committed a new crime, he did not agree that the court could make a determination of whether he committed the new crime by a preponderance of the evidence, rather than by a trial. Defendant claims that the action by the trial court violated his due process rights and his right to a trial under the Sixth Amendment.

The People contend that defendant waived his right to appeal as part of his negotiated plea and therefore, he cannot challenge the sentence. The People also contend that even if defendant did not waive his right to appeal, his claims are not cognizable because they are attacks on the validity of the plea. As such, a certificate of probable cause is required and defendant’s failure to obtain one requires dismissal of the appeal.

Waiver of Appellant Rights

Defendant’s plea agreement with the prosecution included the following appellate waiver at paragraph No. 14 of the change-of-plea form: “(Appeal and Plea Withdrawal Waiver) I hereby waive and give up all my rights regarding state and federal writs and appeals. This includes, but is not limited to, the right to appeal my conviction, the judgment, and any other orders previously issued by this court. I agree not to file any collateral attack on my conviction or sentence at any time in the future. I further agree not to ask the Court to withdraw my plea for any reason after it is entered.”

Defendant argues that his appellate waiver did not anticipate potential errors that could occur after the waiver was entered. Namely, the court’s alleged error in determining whether defendant committed a crime between the time of his plea and the time of sentencing by a preponderance of the evidence.

“The negotiated plea agreement, which results in the waiver of important constitutional rights, ‘is an accepted and integral part of our criminal justice system.’ [Citations.] Such agreements benefit the system by promoting speed, economy and finality of judgments.” (People v. Panizzon (1996) 13 Cal.4th 68, 79-80 (Panizzon).) “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.)

In Panizzon, the California Supreme Court addressed the scope of a sentencing‑specific appellate waiver and its effect on a defendant’s right to appeal. The defendant in Panizzon pleaded no contest pursuant to a plea bargain that provided for a sentence of life with the possibility of parole, plus 12 years. (Panizzon, supra, 13 Cal.4th at p. 73.) In the written waiver and plea agreement, the defendant agreed that he was waiving his “ ‘right to appeal from the sentence [he would] receive in this case.’ ” (Id. at p. 82.) The defendant later challenged the sentence on the ground that it was disproportionate to the sentences his codefendants had received after him, and that therefore, his sentence constituted cruel and unusual punishment. (Id. at pp. 74, 85.) The defendant also argued that the sentencing error was unforeseen or unknown at the time of his plea and appellate waiver, and that such future sentencing error was beyond the scope of his waiver. (Id. at p. 85.)

The California Supreme Court determined that the defendant’s claim fell within the scope of the appellate waiver and was not reviewable on appeal. (Panizzon, supra, 13 Cal.4th at p. 89.) The court stated: “Not only did the plea agreement in this case specify the sentence to be imposed, but by its very terms the waiver of appellate rights also specifically extended to any right to appeal such sentence. Thus, what defendant seeks here is appellate review of an integral element of the negotiated plea agreement, as opposed to a matter left open or unaddressed by the deal.” (Id. at pp. 85-86.) The court further stated that “both the length of the sentence and the right to appeal the sentence are issues that cannot fairly be characterized as falling outside of defendant’s contemplation and knowledge when the waiver was made.” (Id. at p. 86.) The court contrasted the case before it to cases in which the defendants had made a general waiver of the right to appeal as part of a negotiated plea agreement and were not barred from appealing subsequent sentencing errors where the sentencing issue had been left unresolved by the particular plea agreements involved.

Here, as in Panizzon, defendant’s appellate waiver in the waiver and plea agreement was not a general waiver, but a specific waiver that applied to any direct or collateral attack on the sentence or judgment. The agreement expressly provided that defendant was waiving “all rights regarding state and federal writs and appeals. This includes, but is not limited to, the right to appeal [his] conviction, the judgment, and any other orders previously issued by this court.” (Italics added.) Defendant also agreed “not to file any collateral attacks on [his] conviction or sentence at any time in the future.” (Italics added.) The challenge that defendant makes in this case is to the sentence. Defendant specifically waived the right to make such challenge as part of his plea bargain.

Defendant cites People v. Vargas (1993) 13 Cal.App.4th 1653, 1663 to support his argument that his waiver did not anticipate the alleged error in sentencing this case, and therefore, does not preclude his appeal. In Vargas, the defendant appealed an award of custody credits after he had expressly waived his right to appeal as a part of a negotiated plea agreement. (Id. at p. 1656.) The appellate court determined “that the general waiver of the right of appeal d[oes] not include error occurring after the waiver because it was not knowingly and intelligently made. Such a waiver of possible future error does not appear to be within defendant’s contemplation and knowledge at the time the waiver was made. Any person in defendant’s position would reasonably know that such a general waiver of appeal rights obviously included error occurring up to the time of the waiver; however, in our view, it is not reasonable to conclude that the defendant made a knowing and intelligent waiver of the right to appeal any unforeseen or unknown future error . . . .” (Id. at p. 1662, italics added.)

We find Vargas unpersuasive, because here, defendant did not execute a general waiver of his appellate rights. As stated above, defendant executed a specific waiver that included his right to challenge the sentence. Moreover, in view of the express language in the waiver and plea agreement, the parties clearly contemplated that defendant would be sentenced to 38 years if he remained crime free between his entry of plea and sentencing, or up to 42 years if he committed a new crime during that period. The court’s imposition of 42 years was not outside the specific parameters of the plea bargain.

Defendant asserts that while he agreed to a term of up to 42 years if he committed a new crime between the time of entry of plea and sentencing, he did not agree that the court could make a finding that he committed the crime based on preponderance of the evidence, rather than through a trial. In addition, he argues that the court did not advise him that it could make such a determination. He asserts that the court’s imposition of the increased sentence based on his commission of a new crime violated his due process and trial rights.

We find that based on the references to his agreed upon sentencing terms in defendant’s plea agreement and to the sentence in the appellate waiver the parties contemplated at the time defendant entered his no contest plea that the waiver would apply to future error, including error with respect to the length of sentence. (See Panizzon, supra, 13 Cal.4th at pp. 85-86; People v. Mumm (2002) 98 Cal.App.4th 812, 815 (Mumm).) In addition, nothing in defendant’s written appellate waiver indicates that the parties contemplated an exception for appellate claims based on constitutional grounds. Rather, defendant agreed to “waive and give up all rights regarding state . . . writs and appeals. This includes, but is not limited to, the right to appeal [the] conviction, [and] the judgment . . . .” Thus, based on the language of the written waiver, the parties clearly contemplated that all appellate challenges to the judgment or order of probation would be waived.

In sum, defendant’s appellate challenge on constitutional grounds to the court’s imposition of 42 years is not reviewable on appeal because the terms of the plea bargain preclude any appeal regarding defendant’s sentence.[3] (See Panizzon, supra, 13 Cal.4th at p. 89; Mumm, supra, 98 Cal.App.4th at p. 815.)

DISPOSITION

The judgment is affirmed.

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