P. v. Garcia

Filed 10/27/06 P. v. Garcia 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 San Bernardino County. Raymond L. Haight III, Judge. Affirmed.

Lynelle K. Hee, 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 Scott C. Taylor, Supervising Deputy Attorney General, for Plaintiff and Respondent.

Appellant Lawrence Garcia (appellant) argues that the trial court abused its discretion when it denied his Romero^[1] motion to strike a prior conviction. Respondent replies that appellant waived his right to appeal and that in any case the court did not abuse its discretion. We will affirm.

FACTUAL AND PROCEDURAL HISTORY

On December 12, 2004, appellant approached a motorist who had just dropped his girlfriend off at work and told him, “I have your plates, kid. I know where you live . . . ‘Do you want to be on my streets? I’ll blast you.’” The frightened victim, who thought appellant was going to shoot him, tried to leave the area - but appellant drove around after him for 15 minutes. Eventually the victim stopped in front of a friend’s house and ran inside as appellant began rummaging around in his vehicle as if looking for a weapon. After Fontana police arrived in response to the victim’s call, appellant refused to exit his car. Officers then “tazed” and arrested him.

In a direct plea accepted by the court on August 15, 2005, appellant admitted to having made a criminal threat (Pen. Code,^[2] § 422); to resisting arrest (§ 148, subd. (a)(1)); and to having suffered a prior “strike” conviction within the meaning of section 1170.12, subds. (a)-(d) and 667, subds. (b)-(i).) The District Attorney for the County of San Bernardino declined to join the plea agreement. One of the waiver terms printed on the plea form read: “I waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain.”

At the time it accepted the plea, the court determined that appellant recognized the three-page change of plea form and reviewed its two specific sentence options with him. The exact length of his prison term, the court explained, depended on the outcome of a Romero motion defense counsel was to make at the upcoming sentencing hearing. Whether the court would grant the motion in turn depended, to some extent, on the probation report the court was ordering. There were two possibilities:

“[The Court:] Now, if I deny the motion to strike, I’ll tell you right now that your sentence will be 32 months in state prison; do you understand that?

“[Appellant:] Yes, sir. I understand that.

“[The Court:] Okay. If I granted it, then your sentence would be reduced to 16 months; do you understand that?

“[Appellant:] Yes sir. I do understand that.”

In response to the court’s further questioning, appellant confirmed that he had personally signed the plea form and initialed all its specific advisals; he had carefully gone over each paragraph with his attorney; he understood all the printed and handwritten portions of the form; he understood each of the constitutional and other rights he was giving up; and he understood all the possible penalties and punishments for his offense. He was not under the influence of any drugs and no one had promised him a lesser sentence in order to get him to plead guilty. Defense counsel was satisfied that his client understood everything on the form and he joined the waivers. The court found that appellant had entered his plea “freely, voluntarily, knowingly, and intelligently.”

On October 25, 2005, appellant filed a nine-page Romero motion to dismiss his 1986 strike conviction. The motion detailed appellant’s background and argued that the court should dismiss his prior strike in furtherance of justice. The district attorney filed an opposition to appellant’s motion; the opposition included a copy of appellant’s eight-page “RAP” sheet. The RAP sheet documented 42 arrests between 1979 and 2005. The arrests were for offenses ranging from drunk driving, disorderly conduct, fighting, drug possession, and resisting arrest, to assault, battery on a police officer and emergency personnel, and exhibiting a firearm in the presence of a peace officer. Appellant had been in and out of jail and state prison since 1984.

On November 18, 2005, after hearing argument, the same court that had accepted appellant’s plea denied his motion. In ruling, the court commented, “Striking the priors is the exception, not the rule.” It also emphasized that it had considered appellant’s extensive history of criminal offenses and found them to be of “increasing seriousness.” Appellant’s current offense was “really a frightening case to a citizen on the street” whom appellant “essentially terrorized.” “So I can’t say, looking at all the circumstances of this case, that the defendant falls outside the three-strikes scheme, so for those reasons, I will deny the motion to strike the strike prior.”

On January 27, 2006, the probation department filed a report which included a record of 12 misdemeanor, felony, and parole violation convictions between 1983 and 1996. For the most part, the report noted, appellant’s convictions were for crimes involving “defiant and/or aggressive behavior.” During his incarceration for the present offense, on January 18, 2006, appellant had been placed on “discipline . . . for disobeying orders” and was thus unavailable to talk to the probation officer.

On January 27, 2006, the court sentenced appellant to the low term of 16 months in state prison for the felony criminal threat, doubled because of the prior strike, plus one concurrent year for the misdemeanor.

DISCUSSION

The threshold issue is whether the waiver appellant signed at the time of his plea operates to prevent our consideration of his appeal. We conclude that it does.

A. Waiver

“[A]n express waiver of the right of appeal made pursuant to a negotiated plea agreement is valid provided defendant’s waiver is knowing, intelligent and voluntary.” (People v. Vargas (1993) 13 Cal.App.4th 1653, 1659 (Vargas); accord, People v. Panizzon (1996) 13 Cal.4th 68, 81 (Panizzon).) “The voluntariness of a waiver is a question of law which we review de novo. [Citation.] To make this determination, we examine the particular facts and circumstances surrounding the case, including the defendant’s background, experience and conduct. [Citation.]” (Vargas, supra, at p. 1660.)

Determining that a defendant may waive the right to appeal, however, does not define the scope of the waiver. (People v. Nguyen (1993) 13 Cal.App.4th 114, 119.) In the context of a plea bargain, the question of the scope of a waiver is usually approached as a question of contract interpretation: to what did the parties expressly or by reasonable implication agree? (In re Uriah R. (1999) 70 Cal.App.4th 1152, 1157 (Uriah R.).) “As a general proposition, a broad or general waiver, such as ‘I waive my appeal rights,’ will include error occurring prior to the waiver, but not subsequent error because the defendant could not make ‘a knowing and intelligent waiver of the right to appeal any unforeseen or unknown future error . . . .’” (Ibid., citing Vargas, supra, 13 Cal.App.4th at p. 1662.) If, however, the defendant agrees to a plea bargain which includes a specific or indicated sentence, “as opposed to a [sentencing] matter [that is] left open or unaddressed by the deal,” and if that is the sentence actually imposed, the waiver will foreclose appellate review of the sentence. (Panizzon, supra, 13 Cal.4th at p. 86; Vargas, at p. 1662; Uriah R., at p. 1157.)

Here, the facts and circumstances surrounding the case constitute ample evidence, as the court found after detailed questioning, that appellant’s plea - including the waiver - was knowing, intelligent, and voluntary. Appellant was no stranger to criminal court proceedings; he had a history of arrests, court appearances, and convictions extending back to 1979. At the time his plea was entered, appellant confirmed that he recognized the change of plea form and had conferred with his attorney regarding its provisions; he said he had personally signed it and initialed each of its specific advisals; and he repeatedly responded that he understood and agreed to the terms. He was not under the influence of any drugs and no one had promised him anything in exchange for a guilty plea. He expressly acknowledged that he understood the two sentencing possibilities and that the court’s choice between them depended on its decision regarding a Romero motion which was to be made at a future hearing.

In addition, unlike the infirm general waivers discussed by the Vargas and Uriah R. courts, the waiver appellant signed and initialed was specific in its scope. This waiver did not say, “I waive my appeal rights.” (Vargas, supra, 13 Cal.App.4th at p. 1662; Uriah R., supra, 70 Cal.App.4th at p. 1157.) This waiver said, “I waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain.” Appellant’s knowing waiver included the Romero motion that the court had just reiterated his attorney was going to bring at his upcoming sentencing hearing. Benefits of appellant’s bargain included the court’s acceptance of a direct plea in a case where the district attorney had refused to bargain and a mitigated base term despite his long history of criminal convictions.

Finally, there was no question here about the sentence to which the only two parties to the bargain, appellant and the trial court, expressly agreed. (Uriah R., supra, 70 Cal.App.4th at p. 1157.) If appellant’s Romero motion was denied, he was to receive a 32-month sentence; if it was granted, he was to receive a 16-month sentence. After appellant’s motion was denied, the court imposed the 32-month sentence. Because the indicated sentence was the one actually imposed, appellant’s waiver forecloses our review. (Vargas, supra, at p. 1662; Uriah R., supra, at p. 1157.)

Nonetheless, in the interests of justice and to forestall any imagined claim of ineffective assistance of counsel, we deal briefly with appellant’s additional contention that his Romero motion was erroneously denied.

B. Romero Motion

1. Standard of Review

We review a trial court’s rulings on a defendant’s motion to strike or not to strike a prior conviction under a deferential standard of abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374; People v. Williams (1998) 17 Cal.4th 148, 161-162 (Williams).) The decision to deny a motion to strike a prior will stand unless it “‘falls outside the bounds of reason’ under the applicable law and the relevant facts. [Citations.]” (Id. at p. 162.) “A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence.” (People v. Cluff (2001) 87 Cal.App.4th 991, 997.)

2. Motion to Dismiss a Prior Offense

In ruling on a motion to strike a prior, a court must consider “the nature and circumstances” of the defendant’s present and prior serious convictions, as well as the “particulars of his background, character, and prospects.” (Williams, supra, 17 Cal.4th at p. 161.) The purpose of the review is to determine whether the defendant may be deemed so outside the spirit of the Three Strikes scheme that he should be treated as though he had not previously been convicted of one or more of the priors. (Ibid.)

Here, there was abundant factual evidence in the particulars of appellant’s background and record of prior convictions to support the trial court’s determination that his crimes were of increasing seriousness and that he fell outside the spirit of the Three Strikes law. Appellant’s probation report and RAP sheet together detailed over 20 years of ongoing criminal behavior. In 1986, as appellant admitted, he was convicted of exhibiting a firearm in the presence of a peace officer. In his most recent offense, as the trial court put it, appellant “essentially terrorized” a citizen on the street. The record before, between, and after these convictions revealed that appellant’s “prospects” were not favorable: he had been arrested 42 times between 1983 and 2004 and had suffered 12 criminal convictions. The arrests and convictions included drunk driving, disorderly conduct, fighting, drug possession, resisting arrest, assault, battery on a police officer and emergency personnel, and exhibiting a firearm in the presence of a peace officer. Appellant had been in and out of jail and state prison since 1984. Just a few days before his sentencing hearing, he was unavailable to talk with the probation officer writing the report because he had been placed in “discipline” for disobeying orders.

In the presence of substantial evidence to support its factual findings, and with those findings supporting the court’s discretionary refusal to strike appellant’s prior because he did not fall outside the spirit of the Three Strikes law, there was no abuse of discretion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ RAMIREZ

P. J.

/s/ RICHLI

J.

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^[1] People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

^[2] All further statutory references will be to the Penal Code unless otherwise indicated.