P. v. Jacobson
Filed 4/14/06 P. v. Jacobson CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE, Plaintiff and Respondent, v. ERIC CONRAD JACOBSON, Defendant and Appellant. |
F047502
(Super. Ct. No. CRF13615)
OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Tuolumne County. Eric L. DuTemple, Judge.
Linda M. Leavitt, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan Cross and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
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STATEMENT OF THE CASE
On March 4, 2004, the Tuolumne County District Attorney filed a first amended complaint in superior court charging appellant Eric Conrad Jacobson as follows:
Count I--continuous sexual abuse of Jane Doe No. 1, a child under the age of 14 years, (Pen. Code,[1] § 288.5, subd. (a)), a serious felony (§ 1192.7, subd. (c));
Counts II-III--lewd acts upon Jane Doe No. 1, a child under age 14, between March 8, 2002 and January 30, 2004 (§ 288, subd. (a)), a serious felony (§ 1192.7, subd. (c)(6));
Counts IV-VI--lewd acts upon Jane Doe No. 2, a child under the age of 14, between March 19, 1998 and March 18, 1999 (§ 288, subd. (a)), a serious felony (§ 1192.7, subd. (c)(6)); and
Counts VII-X--lewd acts upon Jane Doe No. 2 between March 19, 1999 and March 18, 2001 (§ 288, subd. (c)(1)).
On May 7, 2004, appellant waived a preliminary hearing, the superior court held him to answer, and the court deemed the complaint to be an information and ordered it filed.
On June 7, 2004, appellant was arraigned on the information and pleaded not guilty to the charges.
On August 9, 2004, the court conducted a readiness conference and appellant pleaded guilty to counts II, III, V, and VI in exchange for a maximum term of 14 years in state prison or a grant of probation, with no more than one year in county jail. The district attorney agreed to the dismissal of the remaining counts and appellant signed and initialed a written advisement and waiver of rights giving up his right of appeal.
On the same date, the court referred appellant for an examination of his mental condition (§ 288.1).
On September 7, 2004, appellant filed a statement in mitigation, with a memorandum by Robin Schaeffer, Ph.D., and numerous letters requesting leniency in sentencing.
On September 17, 2004, the court filed an order appointing Gary L. Cavanaugh, M.D. of Stockton to conduct the section 288.1 examination of appellant.
On October 5, 2004, the district attorney filed a statement in aggravation.
On December 30, 2004, appellant filed another statement in mitigation.
On January 3, 2005, the court conducted a sentencing hearing, denied appellant probation, and sentenced him to a total term of 12 years in state prison. The court imposed the middle term of 6 years on count II and consecutive terms of two years (one-third of the middle term) on counts III, V, and VI. The court awarded 27 days of custody credits, imposed a $2,400 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45). The court ordered that appellant be tested for AIDS (§ 1202.1) and submit a DNA sample (§ 296). The court further ordered appellant to register as a sexual offender upon his release from custody (§ 290) and prohibited him from all visitation with the child victims of the charged offenses.
On March 3, 2005, appellant filed a written request for resentencing and supporting papers (§ 1170, subd. (d)).
On the same date, appellant filed a timely notice of appeal "from a plea of guilty and is based on the sentence or other matters occurring after the plea."
On March 22, 2005, the superior court denied appellant's request for resentencing.
STATEMENT OF FACTS
The following facts are taken from the report of the probation officer filed January 3, 2005:
"Count II and Count III [¶]...[¶]
"On February 18, 2004, Investigat[or] Blankenship received a telephone call from Jessica Romeo, a Social Worker with Tuolumne County Child Welfare Services. She told the investigator she was en route to a … residence on the report of sexual abuse to a thirteen year old girl by her father, and she had made arrangements for Tuolumne County Sheriff's Deputy Champlin to accompany her on the call.
"Ms[.] Romeo and Deputy Champlin arrived at the … home and met with the minor, thirteen years old, and who will be ... referred to as Victim #1 ... in this report She told the Social Worker her father, Eric Conrad Jacobson, had sexually molested her for approximately one year, and the most recent contact was about two months ago and consisted of touching her breasts and 'bottom.'
"During a subsequent interview with the Social Worker, Victim #1 told her of a number of incidents which took place between her and her father. Some were while they were in a hot tub at their home, and others occurred in the bedroom.
"She told of an incident in the hot tub with her father and others. She remarked she has just turned twelve years old. Everyone got out, but she wanted to stay. She said her father was about to get out, but got back in and pulled her over to him. He did not remove her bathing suit, but brought her close to him and pressed her up against him.
"She recalled a time in which her father penetrated her vagina with his finger. Again they were in the hot tub and her brother and sister were also there. While her brother and sister were looking elsewhere, her father put his finger insider her vagina.
"In another incident, her father told her how to rub his penis, and commented, 'This is what I want you to do.' She added there was one time she hurt his penis so she could get away.
"Victim #1 recalled the first time her father had intercourse with her was in September, 2002. The incident took place in the daytime in the bedroom of their home. The minor stated her father led her into the bedroom and he took off his clothes and took off her clothes. She told the Social Worker she laid on her back on the floor and her father put his penis in her vagina. She said he stopped when he heard someone enter the house. According to Victim #1, the last time they had intercourse was in April, 2003, after her thirteenth birthday.
"In speaking of the last time her father abused her, the minor stated it was approximately two months prior. She described how she was in the kitchen making a sandwich, and her father walked by and touched her on the butt, and made an attempt to touch her breast until she slapped him. She added he did not want her mother to see him as she was sitting nearby on a couch.
"Victim #1 commented she at times was shocked and scared when having intercourse with her father. She said she wanted him to stop molesting her, but she did not know how to say no. She explained she finally learned how to say no to him.
"The minor said the first person she told about the abuse was her sister .… She then told her mother who confronted Mr. Jacobson.
"Count V and Count VI:
"On February 19, 2004, Investigator Blankenship held an interview with the nineteen year old sister of Victim #1, also a molest victim of Mr. Jacobson, and who will be referred to as Victim #2 ... for this report. She reported her father molested her from the time she was eleven years old (1996) to the time she was seventeen (2002). She told of incidents in which her father touched her breasts with his hands, and the outside of her vagina with his hand when she was eleven years of age.
"She recounted her father coming into the bedroom, which she shared with an older sister, and saying to her, 'Do you want me to do this? Do you want me to, you know, touch you? Do you want to touch me?'
"The minor said he continued to come to their room, and he would come over to her and rub her breasts. As he rubbed her breasts, he also rubbed her neck and put his hand in the back of her pants to rub her butt. Then he would try it to see if she 'liked' it. Sometimes she would say 'yes,' and that is when the abuse started. But, she also said she believed he would first abuse her older sister. She reasoned he would lie on the bed with her sister before coming to her bed. After the older sister moved out of the home, the abuse became more sexual.
"Victim #2 spoke of an incident when she was fifteen, and was cleaning a cabin. She stated she had a headache so she lay down in one of the bedrooms. She woke up to her father taking off her pants. He put his finger into her vagina and told her to 'play' with his penis. She said she did. At another time her father performed oral copulation of her vagina while in one of the cabins.
"Victim #2 recalled her father trying to have sexual intercourse with her at five different times, and actually putting his penis inside her vagina on three occasions. She noted it was similar to a cycle. She said her father would 'finger' her, 'do oral,' and then intercourse. This would happen on different days during a week or a month, then nothing would happen. Then, it would start again.
"For about a year, Victim #2 said her father did not bother her. She stated she was helping in the daycare center at their home and there was never any time for her father to be alone with her. But, when she reached the age of sixteen that situation changed.
"When they went to the cabins to clean them, she related her father would become more demanding. If she said 'no,' he would get in a mood where he would be unhappy. She remembered him coming up to her, grabbing her breasts, rubbing her butt and saying, 'I love you,' while she was doing dishes. When she was vacuuming a bedroom, Victim #2 said her father would come in, sit down on the bed, and say, 'I love you.' [']Do you want me to do this? Do you want me to suck on your boobs? Do you want me to be oral with you? What do you want?'
"She said she was lying down on the bed in a cabin and her father woke her by taking … off her pants before putting his finger into her vagina.
"Victim #2 said her father would say, 'Do you like pickles? Do you want to suck my pickle?' She stated it would 'piss' her off and she just wanted him to leave her alone. She added, we went through this when we were kids, people being disgusting, and I just wanted to be left alone.
"The minor at one point told the investigator how the abuse bothered her, and how she developed an attitude where she did not like anybody. She suggested whenever someone wanted something from her and she refused them, they took it anyway.
"She said the incidents weighed on her mind. She noted the abuse occurred once or twice a month. There were also months when nothing happened. But, her father would say to her, 'I miss you.[']
"Victim #2 related to the investigator how at the age of sixteen she wanted to move out of her house. She added she wanted to start a relationship with her boyfriend.
"She told the investigator when she learned from her sister (Victim #1) her father was also abusing her, she confronted him. She threatened to kill him if he ever[] bothered her sister again, and she stated he apologized to Victim #1 for what he had done.
"On the day the Social Worker initially met with Victim #1, Mr. Jacobson was also at the home, and made a request to meet with Investigator Blankenship. The investigator arranged for Deputy Champlin to transport Mr. Jacobson to the Sheriff's Department for an interview.
"On February 18, 2004, at approximately 1:15 p.m., Investigator Blankenship met with Mr. Jacobson. The defendant told the investigator he was guilty of having sexual relations with his daughters. He said he had sexual intercourse, digital penetration, and oral copulation prior to them becoming fourteen years old, and all the sex acts occurred within Tuolumne County. He added they occurred at their home, at various camping locations between … and in various cabins. He explained he and his wife own and operate cabin rentals .…
"Mr. Jacobson stated he committed sexual acts with two daughters Victim #1 and Victim #2 on a frequent and regular basis. As an example, he said he would have sex with his wife in the morning, clean cabins, and have sex with victim #1 and #2, before returning home and having sex with his wife that night. He said he had a sexual relationship with one of his daughters until she became seventeen years old and moved out of state. He stated the sexual relationship with Victim #2 continued until she turned seventeen, and told him she wanted a sexual relationship with her boyfriend.…
"Mr. Jacobson stated the first sexual act with Victim #1 occurred approximately a year ago (2003). He, Victim #1, and two of his other children were in the hot tub together. He told how Victim #1 slid across his lap and put her hand on his penis. He said he liked it, and after she got out of the hot tub, he followed her inside the house. There she exposed her breasts to him, and he exposed his penis to her. Mr. Jacobson stated he digitally penetrated her vagina on five occasions, and that he performed oral copulation of her vagina on five occasions. He reported five acts of sexual intercourse with her.
"During acts of intercourse, Mr. Jacobson said he would kneel over his daughter so she would not feel trapped. The acts were done in the home in his room when others were also at the home, but without their knowledge. He stated the sexual conduct stopped because Victim #1 wanted it to.
"The defendant reported he began having sexual contact with his other daughter, Victim #2, when she was twelve. He explained they were camping and she went from next to him to on him and they fondled each other. Mr. Jacobson noted he later followed up, and discovered it was something she really wanted. He said, 'I didn't understand that, but it was fun.' He told the investigator the fondling continued for a long time before it led to intercourse. He stated Victim #2 was the first daughter he had intercourse with.
"Mr. Jacobson described an incident of masturbating his daughter, and having her climb up onto his lap. He stated she grabbed her [sic] penis, and they then had intercourse. He commented how she remarked, 'Ouch, that hurt,' smiled and went to the bathroom. The defendant added it was not her fault. [¶]…[¶]
"Upon completion of the interview, Investigator Blankenship arrested Mr. Jacobson for the subject offense, and booked him into the county jail."
Defense
Appellant's August 18, 2004 written statement to the probation officer and the court provided in relevant part:
"It is very difficult to try to explain what has happened because every time I try, it sounds to me like an excuse. There is no excuse for what I have done, and I immediately made a full disclosure – confession – to the Sheriff. I suppose that there are those who would look to my family history for a better understanding. This has been a useful part of therapy which [h]as been ongoing since March of 2004. While there are certain issues of abuse which explain some of the mechanisms which make it possible for me to have committed the crimes, I believe the responsibility must be mine. I can't just blame it away on my past. There are those who would suggest that certain abandonment issues coupled with a life style of drug abuse from an early age combine as primary factors. [¶]...[¶]
"Since the truth has come out, I have been in a continuous effort to understand what I have done and what I can do to mend the damage – not just my life, but also in the lives of the people that I hurt. Through what can only be called a miracle of God, my family still wants me, and wants healing for all of us. There appears to be great hope for healing: (1) I no longer have any kind of headaches (suggesting that an internal struggle has finally been resolved), (2) through ongoing therapy, I am learning to understand how such a terrible thing could have happened, (3) my family is very supportive and encouraging, (4) my entire family seems to draw great strength from the hope that we shall overcome this. I will spend the rest of my life doing whatever I can do [to] make amends. When my family and I are ready, I want to be a voice that calls out to other men that are in, or heading to, similar problems."
DISCUSSION
APPELLANT'S WAIVER OF HIS APPEAL RIGHTS BARS A CHALLENGE TO HIS SENTENCE ON APPEAL
Appellant concedes he signed a written advisement and waiver of rights, including the right of appeal, but maintains the waiver is ambiguous and does not preclude appellate review.
On August 9, 2004, appellant initialed and signed a written advisement and waiver of rights form. The form stated in relevant part:
"Waiver of Appeal: I understand that I will be waiving my right to appeal and I will not be able to appeal from this Court's sentence based on the plea that I enter into in this matter. [¶]...[¶]
"I understand that if I am sentenced to state prison, either now or after violation of probation that I will be subject to a period of parole for up to five years following my release from state prison.
"I understand that the judge's acceptance of this plea is not binding; that before sentencing the judge can withdraw approval and that I will be allowed to withdraw my plea."
Appellant's trial counsel signed the following statement on the form:
"Attorney's statement: I have explained the contents of this form to my client. I have had sufficient time to discuss this case with my client, including the elements of the crime, and I have advised him/her of his/her rights, defenses and the consequences of his/her plea. I join in the waiver of the rights made by my client, including the right to a jury trial."
Appellant signed the following statement on the form:
"Defendant's statement: I have read the front and back of this form. I have had enough time to speak with my attorney; I have told my attorney everything I know about this case; my attorney has explained to me my rights, my defenses and the possible consequences of my plea, including the consequences explained on the second page of this form. I am entering this plea freely and voluntarily."
The reverse side of the advisement and waiver of rights form provided in relevant part:
"Probation Terms [¶] You could be placed on probation or conditional sentence for a period of up to five years. As a condition of probation you could be required to serve up to one year in the county jail. You could be required to report to the court or the probation department, be subject to search and seizure without probable cause and you could be required to comply with other conditions in your case which deal with the crime to which you are pleading guilty or no contest."
The foot of the front page of the advisement and waiver of rights form included the following signed statement by the court:
The following exchange occurred at the August 9, 2004 change of plea hearing:
"THE COURT: All right. Mr. Newkirk, you want to set forth the negotiated plea on the record as well as a factual basis for any count that the defendant might be pleading to.
"MR. NEWKIRK [deputy district attorney]: Yes, Your Honor. The defendant will be pleading to four counts of violation of Penal Code Section 288, subdivision (a). He'll be pleading to Counts 2 and 3 involving Jane Doe Number 1, and Counts 5 and 6 involving Jane [Doe] Number 2. In exchange for those pleas, the balance of the Information, the other six counts, would be dismissed. He would serve no more than 14 years in state prison. There would be an examination pursuant to Penal Code Section 288.1. At sentencing the People would be free to argue for whatever disposition they feel would be appropriate.
"It's my understanding the victims in this case – I'm assuming certainly the defendant will be arguing for probation, but the People can argue for whatever they feel is appropriate. If probation is granted, there would be five years of probation with no early termination, he would register as a sexual offender for the rest of his life. He would pay a mandatory restitution fine, pay a mandatory fine pursuant to Penal Code Section 290.3.
"As far as a factual basis, during the dates in question on Counts 2 and 3, the defendant did perform lewd and lascivious acts on his daughter, Jane Doe Number 1, Jane Doe Number 1 being between the ages of 12 and 13 years of age.
"For Counts 5 and 6, he performed lewd and lascivious acts on another daughter, Jane Doe Number 2. At that time Jane Doe Number 2 was 13 years old. These sex acts included oral copulation and intercourse.
"THE COURT: All right. Is that your understanding of the negotiated plea?
"MR. WEBSTER [defense counsel]: Yes, Your Honor.
"THE COURT: Is that what you wish to do, Mr. Jacobson, plead guilty based on the promises made by the district attorney?
"THE DEFENDANT: Yes, Your Honor.
"THE COURT: All right. I've been handed a form entitled: Advisement and Waiver of Rights. [¶] Have you gone over the front and the back of that form with your attorney?
"THE DEFENDANT: Yes, I have.
"THE COURT: This form fully sets forth all the constitutional rights that you have and that you'll be giving up by pleading guilty. [¶] Do you understand those rights?
"THE DEFENDANT: Yes, I do.
"THE COURT: Do you waive those rights?
"THE DEFENDANT: Yes, I do.
"THE COURT: This also sets forth all the potential consequences to you for pleading guilty. [¶] Do you understand those consequences?
"THE DEFENDANT: Yes, I do.
"THE COURT: All right. If the Court does grant you probation in this matter, and you – well, strike that. Actually this is a little different situation. I'll advise you that whether the Court grants you probation or not, there is certain sentencing issues that might come before the Court. Those are the issues of whether or not this offense is aggravated. If the Court grants you probation, then you'll be getting local time, up to a year in the county jail. But if you violate that probation at a later time, then the Court could sentence you to the maximum period of time – what's the maximum – was there a cap on this?
"MR. NEWKIRK: Fourteen years is the maximum.
"MR. WEBSTER: That's the maximum, Your Honor.
"THE COURT: That is the maximum exposure, 14 years, and that would be, I assume, if the Court aggravates.
"MR. NEWKIRK: Yes, Your Honor.
"THE COURT: All right. If the Court does sentence you – or grants you probation and I later violate your probation for some act that you did, then the Court would have to determine whether I was going to grant probation again or whether I was going send you to prison. If I send you to prison, the Court can choose between a triad of three, six and eight years, one would be the mitigated term, the middle, of course, would be the middle term and the upper term would be an aggravated term.
"In order to sentence you to an aggravated term, the Court would have to make a determination that there were in fact aggravating factors. You have a right to a jury trial on that issue. Now, at that trial you have a right to present evidence, you have a right to testify, you have a right to be confronted by witnesses, you have a right to subpoena witnesses and you have a right to assert the privilege against self-incrimination. [¶] Counsel, have you discussed this with your client and is he prepared to waive that?
"MR. WEBSTER: Yes, Your Honor.
"THE COURT: All right. All those rights you have and your counsel indicates you're willing to waive those rights. If you do and the Court subsequently violates your probation and sentences you to prison, I can choose anything from the mitigated term all the way up to the aggravated term and you'll be waiving ... all those constitutional rights involving that trial procedure in determination of whether or not there is in existence aggravating factors. [¶] Do you understand that?
"THE DEFENDANT: I guess.
"THE COURT: Do you waive and give up those rights?
"THE DEFENDANT: Yes, I do.
"THE COURT: All right. Also, if the Court decides not to grant you probation at the original sentencing, the Court could, as part of the terms and conditions of probation, I'm not saying I am, but I could sentence you to prison. So you would have the same exact constitutional rights, a jury trial and all the other constitutional rights in determining whether or not there are aggravating terms that the Court could use to aggravate your sentence and my understanding is you're prepared to waive and give up those rights and allow the Court to determine whether or not there are aggravating factors at the time of sentencing. Is that true?
"THE DEFENDANT: That's true.
"THE COURT: Do you waive and give up all those individual rights I advised you you have?
"THE DEFENDANT: I do."
At the January 3, 2005 sentencing hearing, the court heard the arguments of counsel and also heard appellant's wife and one of the victims offer statements in support of appellant. Appellant's wife said she needed appellant's help and specifically asked the court to grant appellant probation.
The appellant stated at the January 3, 2005 sentencing hearing:
"… I've read the probation officer's report. And I want to state for the record that it is absolutely no one else's fault; that I disagree; that I was never enticed; there … was never any deficit; that I have the best wife a man could ever ask for and absolutely wonderful children who have done nothing wrong. I cannot blame my parents. I cannot blame society. I cannot blame God. This is my fault. That's for the record. I didn't disagree that anybody would ever blame anyone else."
The court subsequently imposed sentence as follows:
"[I]t's very tough dynamic when you have a father or stepfather in the family who supports the family, who abuses the very trust of being a member of that family. And the children who are the victims of this and the other parent who fall back into the mode of thinking that this is the person that's going to keep our family together and help the family.
"And I look back over the history of this case. And despite what the ... psychiatrists have said ... and there is plenty in Dr. Cavanaugh's report that gives the court a great deal of pause. Technically he made findings required under 288.1, but also made ... some very interesting findings that concern the court a great deal, not the least of which there should be no contact between the defendant and the [victims].
"But I think what really concerns me and seems to get lost in this mishmash is that these are kids. Despite the fact that they are now caught in this trap of supporting their stepfather, that theoretically the system save them from a very, very difficult situation placed them in a place where they should be safe would be I think under other circumstances held up as the model of the system actually working. Take them out of a bad situation and put them into a good situation. And then to have that whole situation turned upside down by the defendant who from age twelve systematically picked out each of the stepchildren and engaged in inappropriate sexual conduct. I'm not just talking inappropriate sexual conduct; I'm talking about every possible sexual conduct from oral copulation to intercourse to touching to digital penetration. Started at age twelve and basically worked his way through three children and destroyed whatever safety there might have been. And what seemed to be the ideal situation having placed these children out of their previous existence into a safe existence and having been adopted. There is very, very little that speaks on behalf of Mr. Jacobson given this egregious sexual abuse predation of these three children.
"I could recite numerous occasions that justify or substantiate the court's comments. But they are in the report and everybody knows that. It's just that nobody wants to speak of those because they are so horrendous.
"The court just cannot in good conscience overlook the conduct of the defendant who home-taught these kids and set up a situation where he was around them on a constant basis and then abused them through all of that.
"I feel extremely upset and badly about the way the victims look at this. But I'm not so sure that this is the way they are going to look at it throughout the rest of their life. [¶]...[¶]
"The court is going to order that probation be denied.
"… [T]he court adopts the nature and seriousness and circumstance of the crimes compared to other crimes, instances of the same crime. This is much more serious. The circumstances were much worse than the majority of the crimes that the court receives and sentence individuals; given the length of time; given the vulnerability of the victims; given the defendant's taking advantage of a position of trust or confidence to commit the crimes; given that the defendant actually set up the opportunity with these children. The court cites all of those as reasons for denying probation and probation will be denied.
"The court will order that the defendant be sentenced to the mid-term of the base sentence of six years in state prison."
Appellant now argues:
"At the time of the plea in open court, no mention was made of the right to appeal from a denial of probation. In contrast, appellant was specifically advised that if the court sentenced him to prison, he would be waiving his right to a jury trial on whether the aggravating term was appropriate. However, appellant was never advised that he would waive his right to appeal from the denial of probation based on the court's failure to properly exercise its discretion.
"Appellant acknowledges that a defendant may waive the right to appeal as part of an agreement. However, to be enforceable, a defendant's waiver of the right to appeal must be knowing, intelligent, and voluntary. Further, a wavier is the intentional relinquishment of a known right. [Citations omitted.]
"However, in the instant case, based on the questioning in court, it is clear that appellant was not aware that he was waiving his future rights to appeal the denial of probation. Instead, he would have understood this phrase, that he was waiving his right to appeal the sentence, to refer to the questions asked by the court regarding the number of years that he would be sentenced to based on whether it was a mitigated or aggravated term. This waiver was written in an ambiguous fashion as it related to the denial of probation and thus it is distinguishable from cases where the defendant is waiving his rights in exchange for a specific sentence. (See People v. Pan[iz]zon (1996) 13 Cal.4th 68.)"
A negotiated plea agreement results in the waiver of important constitutional rights. Such agreements are an accepted and integral part of our criminal justice system and benefit the system by promoting speed, economy, and finality of judgments. When a guilty or nolo contendere plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties--including the state--must abide by the terms of the agreement. Before taking the plea, the trial court must admonish the defendant of the constitutional rights that are being waived as well as the direct consequences of the plea. 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. Similarly, a defendant may 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. Waivers may be manifested either orally or in writing. The voluntariness of a waiver is a question of law that appellate courts review de novo. (People v. Panizzon (1996) 13 Cal.4th 68, 79-80 (Panizzon).)
A court may rely upon a defendant's validly executed waiver form as a proper substitute for a personal admonishment. (Panizzon, supra, 13 Cal.4th at p. 83.) In the instant case, the superior court specifically asked whether appellant understood and waived all of the constitutional rights set forth on the advisement and waiver of rights form. Appellant answered in the affirmative. The court also asked appellant whether he understood the potential consequences of a guilty plea as set forth on that same form. Appellant again answered in the affirmative. Appellant's plea agreement did not include a specific sentence but did include a maximum state prison term and, as respondent notes, raised the possibility of probation. The court specifically informed appellant if it did not grant appellant probation at the original sentencing proceeding it could sentence appellant to prison.
In California, a "sentence" is the judgment in a criminal action; it is the declaration to the defendant of his or her disposition or punishment once his or her criminal guilt has been ascertained. (People v. Rodriguez (1963) 222 Cal.App.2d 221, 226.) This court has held that the "judgment" and the "sentence" are in fact one in common parlance and contemplation and an appeal from the sentence will be considered as being from the judgment of conviction. (People v. Bauer (1966) 241 Cal.App.2d 632, 635.) Expressed another way, "judgment" or "sentence" is the appropriate word to denote the action of the trial court in declaring to the defendant the consequences of the ascertainment of guilt. (In re Anderson (1939) 34 Cal.App.2d 48, 50.) In the instant case, neither the prosecutor nor the trial court guaranteed appellant a grant of probation and the written advisement and waiver of rights clearly stated: "I understand that I will be waiving my right to appeal ...." The form did not make any exception to that waiver in the event of a denial of probation. Appellant signed the form to signify he had read both the front and the back and that his counsel had explained his rights, defenses, and possible consequences of the plea. Appellant further acknowledge that he was entering the plea freely and voluntarily.
In view of the foregoing waiver, we may not consider his claim the trial court abused its discretion in declining to grant probation.
DISPOSITION
The judgment is affirmed. The appeal is dismissed.
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* Before Harris, Acting P.J., Cornell, J. and Gomes, J.
[1] All further statutory references are to the Penal Code unless otherwise indicated.
