Filed 8/30/18 P. v. Roberts CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Dismissed.

Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Valerie Latrice Roberts was charged in a 77-count indictment, which included charges of human trafficking; administering stupefying drugs to assist in the commission of a felony; knowingly and willfully executing a scheme to defraud the Medi-Cal program administered by the Department of Public Social Services; and the fraudulent taking of money from In-Home Supportive Services (IHSS). On October 13, 2016, defendant pled guilty to six counts in the indictment and was sentenced to 10 years. The execution of sentence was suspended and she was placed on three years of probation under various probation conditions.

On appeal, defendant claims two of the probation conditions should be stricken and/or modified as follows: (1) the Fourth Amendment waiver condition, which permits warrantless searches of her person and property should be modified to clarify it excludes electronic devices and media, otherwise, the condition is unconstitutionally overbroad; and (2) the residency condition is unconstitutionally vague, and it is overbroad because it restricts her rights of travel and freedom of association.

Defendant waived her right to appeal when she entered into the plea agreement. We conclude that such plea agreement included her admission to the terms and conditions of probation. As such, we dismiss the appeal.

FACTUAL AND PROCEDURAL HISTORY

On March 25, 2015, defendant was charged along with four other defendants (codefendants) in a 77-count indictment. Defendant and codefendants were involved in a fraudulent scheme to obtain payments from IHSS for five children that lived in Defendant’s home. Defendant and codefendants claimed the five children were disabled and needed in-home care. They forced the children to pretend they had disabilities and lied about a caregiver taking care of them. Defendant and codefendants fraudently received over $750,000 for care that the children did not need or receive.

Defendant entered a guilty plea to three counts of fraudulently obtaining services (Welf. & Inst. Code, § 14107; counts 37, 57, 74); two counts of submitting a fraudulent claim (Pen. Code, § 72; counts 32, 33); and one count of felony grand theft (Pen. Code, § 487, subd. (a)). Defendant also admitted a fraud enhancement pursuant to Penal Code section 186.11, subdivision (a)(1) for count 74. The parties stipulated that the crime report and indictment would be the factual basis for the plea. Defendant was sentenced to 10 years but the execution of the sentence was suspended. Defendant was placed on three years of formal probation under various terms and conditions.

The two conditions on appeal that defendant insists violated her constitituional rights were (1) “Submit to immediate search of person/property including all residences/premises/storage units, containers & vehicles under your control, by Probation Officer or law enforcement officer, with or without cause”; and (2) “Give written notice to the probation officer 24 hours before changing your residence and do not move without the approval of the probation officer.”

DISCUSSION

A. WAIVER OF RIGHT TO APPEAL

Defendant waived her right to appeal when entering into her plea agreement. On the signed plea agreement, defendant agreed “As part of this plea, I . . . do . . . waive any right to appeal that I may have.”

[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).) Here, the trial court inquired of defendant if she had reviewed the plea agreement and whether she had any questions. She had none. Further, she denied that anyone threatened her or made any promises that forced her into entering into the plea agreement. She initialed the plea form where it stated she waived her rights to appeal, and she signed the plea form. The record supports a knowing and intelligent waiver of her right to appeal. (See Vargas at p. 1661 [written waiver of the right of appeal demonstrates defendant was informed sufficiently of this right to knowingly and intelligently waive it].)

“A broad or general waiver of appeal rights ordinarily includes error occurring before but not after the waiver because the defendant could not knowingly and intelligently waive the right to appeal any unforeseen or unknown future error.” (People v. Mumm (2002) 98 Cal.App.4th 812, 815.) When a defendant waives the right to appeal as part of a plea agreement, the waiver encompasses a challenge to any part of the sentence that is specified by the plea agreement. (People v. Panizzon (1996) 13 Cal.4th 68, 85-86.) “[A] valid, express, and unrestricted waiver of the right to appeal a negotiated sentence should be deemed to include a waiver of the right to appeal it on the ground that it is disproportional and therefore invalid.” (Id. at p. 89.)

Here, the probation conditions, like the negotiated sentence in Panizzon, supra, were known to defendant and were part of the plea agreement. On October 12, 2016, defendant entered into the plea agreement, which included the waiver of her appeal rights. On the same day, she initialed and signed the probation conditions form, which included the residency condition, and the Fourth Amendment waiver condition.

It is clear that she signed all of these documents prior to the trial court taking the plea. At the time the plea was taken, defendant’s counsel advised the trial court as to the sentence on the plea agreement as follows: “Ten years suspended on the condition she completes the terms and conditions of probation as attached as she has signed.” Later, after entering the plea, the trial court noted, “It looks like, [defendant], you have already signed off on the two-page sentencing memorandum accepting all of the terms of your probation; is that correct?” Defendant responded, “Yes.” The trial court did not repeat all of the terms and did not change any of the terms.

It is clear, as represented by defendant’s counsel, that the plea agreement included an agreement to be subject to certain probation conditions, which defendant signed prior to entering into the plea agreement. Defendant was well aware of the conditions of her probation and, in order to receive the benefit of the plea, agreed to be subject to them. Although defendant argues that the plea agreement made no mention of the probation conditions, it is clear from the record that the plea agreement specifically included the probation conditions.

This case differs from Vargas, which defendant contends is “right on point.” In Vargas, although the defendant signed a general waiver of his rights to appeal, he raised on appeal that his conduct credits, which were not mentioned at the time the plea was entered, were erroneously calculated. (Vargas, supra, 13 Cal.App.4th. at pp. 1657-1661.) This court addressed the scope of the waiver and concluded that, “[T]he general waiver of the right of appeal did 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 such as the erroneous deduction of conduct credits pursuant to [Penal Code] section 4019, subdivision (c), as he has alleged on appeal.” (Id. at p. 1662, fn. omitted.)

Here, it was clear that the probation conditions were part of the plea negotiations, and as represented by counsel, the negotiated sentence was “[t]en years suspended on the condition she completes the terms and conditions of probation as attached as she has signed.” Unlike in Vargas, the terms and conditions of probation were known to defendant at the time she entered her plea agreement and she knowingly waived her right to appeal with full knowledge of these conditions.

Defendant’s appellate challenges on constitutional grounds to the conditions of probation, which were part of the plea agreement, are not reviewable on appeal because the terms of the plea waived all of her rights of appeal.

In the alternative, defendant accepted the conditions of probation as part of her plea agreement. As such, she is in essence attacking the validity of the plea agreement on appeal. However, she failed to secure a certificate of probable cause as required to attack the validity of the plea. (See People v. Panizzon, supra, 13 Cal.4th at p. 78; Pen. Code, § 1237.5.)

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

RAMIREZ

P. J.

HOLMES