P. v. Lopez

Filed 11/21/07 P. v. Lopez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Robert R. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

Allen G. Weinberg for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

Andres Arthur Lopez appeals from the judgment sending him to prison for a total of 25 years following his guilty plea to one count of residential burglary, after having one prior strike conviction,[1] two prior serious felony convictions, and three prior prison terms. (See Pen. Code, 459-460, 667, subds. (a) & (d)-(e), 667.5, subd. (b).)[2]  The trial court had indicated prior to Lopezs change of plea that 25 years would be the lid on his sentence.[3]

In this appeal, Lopez contends his waiver of his appeal rights was not knowingly and intelligently made and thus was invalid. If this contention prevails, he further argues that the sentencing court failed to state reasons for selecting the aggravated term, and the judgment must be reversed and remanded for resentencing. However, if this court holds that this issue was waived due to defense counsels failure to object at the sentencing hearing, Lopez then proposes that counsel rendered ineffective assistance by failing to object, necessitating reversal of the judgment and remand for resentencing. Finally, Lopez contends the court improperly imposed three separate one-year enhancements following an inadequate admission to the three prior prison term allegations. We disagree.

FACTS

When pleading guilty, Lopez stated that he willfully and unlawfully entered a [sic] inhabited dwelling house that was occupied by a non-accomplice at the time with the intent to commit a felony therein. At the time of this offense [he] had previously suffered 3 strike convictions and two [section] 667(a)(1) convictions. In another part of his written change-of-plea form, Lopez initialed the paragraph entitled, Appeal waiver: I understand I have the right to appeal from decisions and orders of the Superior Court. I waive and give up my right to appeal from any and all decisions and orders made in my case, including motions to suppress evidence brought pursuant to . . . section 1538.5. I waive and give up my right to appeal from my guilty plea. I waive and give up my right to appeal from any legally authorized sentence the court imposes which is within the terms and limits of this plea agreement.

At the change-of-plea hearing, the court delineated the charges to which it was accepting guilty pleas: the burglary charge, the three prior strike convictions and the two serious felony convictions. It then explicitly informed Lopez of the three prior prison term allegations under section 667.5, subdivision (b) which he also faced. Lopez then specifically admitted those three prior prison terms in addition to the prior convictions listed in the written form.

After sentence was imposed consistent with the indicated lid, the trial court specifically asked Lopez if he wished to waive his appeal rights, and Lopez declined. At that point, the trial court fully informed the defendant and his attorney of his right to appeal the sentence.

DISCUSSION

A.     Waiver of Appellate Rights

Lopez contends that his waiver of any appeal from this plea and sentence was not knowing and intelligent because the court failed to specifically recite his appeal rights on the recordbefore taking the waiver. Citing People v. Rosso (1994) 30 Cal.App.4th 1001, he argues the appellate waiver is invalid.[4]

Although the initial waiver in the change of plea form appears valid, the conversation between the court and the defendant subsequent to the imposition of judgment clearly reflects his intention to retain the power to appeal the sentence. For this reason, the Attorney General concedes that the appellate waiver was ineffective, at least as to the sentence. We accept that concession.

B.     Selection of the Upper Term

Lopez attacks the 25-year sentence he received because the sentencing court chose the aggravated term of six years for the burglary count without detailing the reasons for that choice. The Attorney General responds that Lopez is attacking the very bargained-for term that was the essence of the plea bargain. Thus, a certificate of probable cause was required under section 1237.5 and People v. Panizzon, supra, 13 Cal.4th 68, and Lopez has failed to obtain one.[5] Lopez replies that such a certificate is not required when the appellate issue concerns proceedings held subsequent to the plea for purpose of determining the . . . penalty to be imposed even in the event of an indicated lid on the sentence. (People v. Buttram (2003) 30 Cal.4th 773, 780.)

Section 1237.5 provides that no appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty . . . , except where both of the following are met: [] (a) The defendant has filed with the trial court a written statement, executed under oath . . . , showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court. Similarly, California Rules of Court, rule 8.304(a)(1) provides, in pertinent part, that to appeal after a plea of guilty . . . the defendant must also comply with (b)[(1)] which requires the defendant [to] file . . . the statement required by [] section 1237.5 for issuance of a certificate of probable cause. This requirement is excused, as provided in subdivision (b)(4) of that rule, if the notice of appeal states that the appeal is based on: [] (A) The denial of a motion to suppress evidence . . . ; or [] (B) Grounds that arose after entry of the plea and do not affect the pleas validity.

Negotiated dispositions which state the exact amount of time the sentencing court will impose, and which is accepted by the pleading defendant, cannot be appealed without first acquiring a certificate of probable cause as the judgment is inextricably involved in the validity of the plea. (See People v. Panizzon, supra, 13 Cal.4th at pp. 76-79.) On the other hand, an indicated lid on the amount of time a sentencing court may impose does not necessarily meet the test of being an integral part of the negotiated plea. (See People v. Buttram, supra, 30 Cal.4th at pp. 776-777.) The Attorney General responds that a sentence lid is itself a sentence that the trial court may lawfully impose [under the plea agreement]. . . . [] Thus, the specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term. (People v. Shelton(2006) 37 Cal.4th 759, 768.)

In Shelton, the defendant accepted a plea bargain that capped the sentence the court would impose at three years, eight months for two offenses: stalking and making a criminal threat. (See 422, 646.9, subd. (b).) At the time of sentencing, the defense argued that section 654 arguably barred sentence imposition on both counts, but the trial court, agreeing with the prosecutor, imposed the total three years, eight months for both counts, finding that the crimes were committed at different times or separate places rather than being committed so close in time and place as to indicate a single period of aberrant behavior. (People v. Shelton, supra, 37 Cal.4th at 765.)

Shelton attempted to appeal that sentence without obtaining the certificate of probable cause, arguing that a mere lid on the sentence preserved his right to argu[e] in favor of a lesser term, as the plea agreement expressly permitted him to do. (Id. at p. 766.) But the Attorney General argued the agreement permitted him to request a term less than the lid under only one ground: if the trial court exercised its discretion in favor of a lesser term. Under the plea agreement, the trial court had the authority to impose the full amount of the lid. (Ibid.) As such, any appeal of that amount of prison time required a certificate of probable cause unless the defendant explicitly reserved the right to challenge the trial courts authority to impose the lid sentence. (Id. at p. 769.) The Supreme Court in Sheltonagreed.

The Supreme Court explained the disparity between the Buttram and Shelton holdings as follows: Buttram dealt with a defendants desire to have the appellate court review a sentencing courts exercise of its discretionary sentencing functions in imposing the lid sentence. (People v. Shelton, supra, 37 Cal.4th at 770.) Shelton, on the other hand, dealt with a defendants desire to have the appellate court review the trial courts authority to impose the lid sentence[.]  (Ibid.; original italics.)

Although this almost Byzantine approach to a very clear and unambiguous statute has triggered past criticisms,[6] we are compelled to apply the precedent established for us, irrespective of the microscopic hair-splitting that entails. Under the rationale expressed in Sheltonand Buttram, a certificate of probable cause is not required if the desired appellate review is limited to the trial courts exercise of its discretionary sentencing powers when imposing an indicated lid as the judgment. The certificate is required if the appellate review is to determine whether the sentencing court had the authority to impose the indicated lid as the sentence.

In Lopezs case, he states he desires our review of the trial courts failure to express its discretionary sentencing choices. This is far more akin to the review of an exercise of the courts discretionary sentencing powers than it is to the sentencing courts authority to impose sentence. Under Buttram, his appeal was not dependent on the acquisition of the certificate of probable cause, and Lopez may appeal the actual sentence imposed.

Lopez contends the sentencing court erred when it selected the upper term without expressly detailing the facts in aggravation supporting that choice. The Attorney General duly notes the issue was waived by the defenses failure to voice an objection to this technical deficiency at the sentencing hearing. (Cf. People v. Scott (1994) 9 Cal.4th 331, 356.) However, as noted above, Lopez responds with an attack on the competency of his attorney for this failure to object.

Lopez argues that, because the court failed to state a tentative sentencing decision, his counsel never had an opportunity to object and was effectively barred from objecting. However, that is not an accurate characterization of the record: The sentencing court specifically stated that it was not providing reasons for the sentencing choice because no one [is] requesting reasons at this time. The defense could have voiced its objection at this express invitation. And any allegation that Lopez had no notice of the potential sentence is disingenuous: Lopez changed his plea to guilty pursuant to the indicated cap on the sentence two months before sentence was formally imposed.

Moreover, as has been noted in the past, a failure to object does not necessarily equate with incompetency. (See People v. Riel (2000) 22 Cal.4th 1153, 1202.)[7] Lopez raises the argument, merely arguing that because the trial court never issued a tentative decision, the defense never had an opportunity to object. (See People v. Scott, supra, 9 Cal.4th at p. 356.) As explained above, the record fails to bear out this characterization. Lopez then proposes that there could be no conceivable tactical explanation for the failure to object in this case, because it was legally impossible that an objection could have resulted in a worse result. The implication was that an objection could have resulted in a lesser sentence had the court been required to go through the step of delineating the facts in aggravation.

We disagree. The defense had just successfully convinced the court to exercise its discretion and strike two prior strike convictions after Lopez admitted them all. He had also convinced the court that, although the present offense was a violent felony and was committed while he was on parole from his last prison sentence, he deserved this especially lenient treatment. These facts alone would have provided sufficient grounds for aggravating the term, and counsel might have been aware that further discussion would only have cast further light on his appalling criminal history. Tactically speaking, counsel may have opted for silence over undermining his own position in asking for leniency. (See People v. Farmer (1989) 47 Cal.3d 888, 916 [when the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[, and]. . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal.].)

Finally, and most importantly, a statement of supporting reasons is unnecessaryirrespective of the terms of section 1170, subdivision (c)under California Rules of Court, rule 4.412,[8] if the term imposed has been agreed to by the defense, such as in this case. (See People v. Villanueva (1991) 230 Cal.App.3d 1157, 1161-1162.) That rule applies equally to the situation in which a defendant has agreed to the maximum that the court can impose in exchange for his guilty pleas. (See e.g., People v. Tucker (1986) 187 Cal.App.3d 295, 297.)

C. Imposition of Three Prison Term Enhancements

Lopez contends the trial court lacked the power to impose the one-year terms for each of the three prior prison term enhancements. Specifically, he attacks the manner in which the court advised Lopez of those three prior prison terms and then received Lopezs admission to each of them. He argues the prosecution was required to prove four things: (1) the defendant had been convicted of a felony, (2) for which he was imprisoned in prison, (3) and served that term, and (4) failed to refrain from reoffending for five years. (See People v. Tenner (1993) 6 Cal.4th 559, 566.) He concedes that a valid admission obviates the need for any further proof of the allegation. However, he opines that Lopezs mere statement that he had suffered three state prison commitments was insufficient for a valid admission, and because the trial court failed to verbally incorporate the change-of-pleaform by reference into the record, it must be disregarded. Not surprisingly, he provides no authority for this last point, for there is none.

Lopez signed his change-of-plea form, initialing the general charging statement showing that he had three prior prison terms under section 667.5, subdivision (b), and that all charges and enhancements totaled a maximum sentence of 38 years to life. In listing each enhancement individually, however, two of the three prior-prison-term enhancements were detailed on the second page of the change-of-plea form: The convictions from June 1988 and March 1994 for the crimes of burglary and robbery, respectively. On the final page of that form, the third allegation under section 667.5, subdivision (b) was detailed, reflecting Lopezs prior conviction for possession of methamphetamine in January 1999, resulting in another, one-year enhancement. Finally, Lopez initialed two boxes, stating I hereby admit that I have sustained the prior convictions and prior prison terms set forth both in this form and as alleged in the information and I further admit that for each prior conviction alleged pursuant to [] section 667.5(b), I served a separate prison term and within five (5) years of my release from prison custody I committed a new offense resulting in a felony conviction. The trial court then reiterated this information verbally when he asked Lopez, [y]ou also suffered three state prison commitments, correct, sir? Once Lopez agreed, the court clarified this information by stating, Those are spelled out on an additional page that lists case number C-67991, [violations of sections] 459 and 460 occurring June 15, 1988 [and] March 31, [19]94 state prison commitment under case number 94CF0752 for a crime of [section] 211 . . . . And January 29th of [19]99, drug case under [section] 11377 of the Health and Safety Code, case number 98CF0919 that adds an additional one year for state prison prior. [] All those that I have read into the record are prior convictions that you actually suffered, correct, sir? Lopez agreed.

Proof of the elements of the enhancements by the prosecution is unnecessary in the face of a defendants admission to the allegation if accurately pleaded. (See People v. Cardenas (1987) 192 Cal.App.3d 51, 61.)[9]

Lopez now contends he cannot be sentenced to the three, one-year terms for these three enhancements, as the court had no power to impose sentence on enhancements inadequately proven. This argument is an attack on the trial courts authority to impose the terms. Thus, it requires that he obtain a certificate of probable cause before appellate review. (See Shelton, supra, 37 Cal.4th at p. 770.) He has failed to do so and is thus barred from raising this argument, unmeritorious as it has been shown to be.

The judgment is affirmed.

SILLS, P. J.

WE CONCUR:

OLEARY, J.

MOORE, J.

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[1] Lopez faced three prior strike convictions, but, after this admission, the trial court granted a motion to strike two of the three prior strikes in the interest of justice. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.)

[2] All further section references are to the Penal Code unless otherwise stated.

[3] The maximum sentence which Lopez faced was the indeterminate term of 38 years to life.

[4] The point for which the Rosso case has been cited was disapproved in People v. Panizzon (1996) 13 Cal.4th 68, 83-84: A verbal recitation of a right is not the only manner of advice which meets the requirement before a waiver is taken. A written statement of the right as found in a change-of-plea form is sufficient to reflect the defendant has been adequately informed of the right he agrees to waive. (Ibid.)

[5] Lopez filed a formal request for a certificate of probable cause at the same time he submitted his Notice of Appeal, and the sentencing court denied it, issuing an order finding there was not probable cause for an appeal in this case.

[6] See the dissenting opinion of Justice Brown in People v. Lloyd (1998) 17 Cal.4th 658 at pages 667-669, in which she notes that [d]espite the statutes admittedly broad language [citations], this court long ago went into the business of crafting exceptions to the statute. [Citation.] [] For the past 30 years, we have suffered with the consequences, struggling repeatedlyand unsuccessfullyto articulate the scope of the certificate of probable cause requirement, now riddled with ill-defined exceptions and exceptions to exceptions. (Id.at p. 667.)

[7] As the Riel court clearly expressed, a defendant cannot fail to object at trial, where the issue could have been litigated and any error avoided, and also claim error on appeal. If counsel were truly ineffective, defendant can assert that ineffectiveness and obtain appropriate relief on that basis. But he cannot automatically obtain merit review of a noncognizable issue by talismanically asserting ineffective assistance of counsel. (People v. Riel, supra, 22 Cal.4th at 1202.)

[8] California Rules of Court, rule 4.412(a) provides that [i]t is an adequate reason for a sentence or other disposition that the defendant, personally and by counsel, has expressed agreement that it be imposed and the prosecuting attorney has not expressed an objection to it. . . .

[9] Generally, an admission of prior convictions where the charging information specifically alleges the convictions resulted in prior separate prison terms is deemed an admission such prison terms were separately served. [Citations.] (People v. Cardenas, supra, 192 Cal.App.3d at p. 61.)