P. v. Treen

Filed 5/1/06 P. v. Treen CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Amalia L. Meza, Judge. Dismissed.

Walter F. Treen appeals a judgment entered following his guilty plea to one count of unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)) and one count of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and his admission of the truth of allegations he had two prior serious or violent felony convictions within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and two prior prison terms (Pen. Code, § 667.5, subd. (b)). The trial court sentenced him to 25 years to life in prison. On appeal, Treen contends: (1) the trial court abused its discretion by imposing a term of 25 years to life under the three strikes law; (2) his sentence constitutes unconstitutional cruel and unusual punishment; and (3) he was denied his constitutional right to equal protection under the law. The People assert Treen cannot raise those contentions on appeal because he waived his right to appeal those issues and, in addition, did not obtain a certificate of probable cause to appeal.

FACTUAL AND PROCEDURAL BACKGROUND^[1]

On April 15, 2002, a San Diego County deputy sheriff pursued a speeding car that had been reported stolen. The car parked at an apartment complex and the deputy saw Treen and another person walking away from it. After he called out, the two people ran away from the deputy. After a one-hour search, Treen was found hiding in bushes. Deputies found a knife, a screwdriver, a baseball bat, and a bag containing .11 grams of methamphetamine near Treen. In the car's trunk deputies found clothing belonging to Treen, letters addressed to him, his photograph, a steel pipe, a measuring scale with a white powdery substance on it, and keys for different makes of cars.

On February 26, 2003, Treen signed a plea agreement pursuant to which he would receive a maximum sentence of 27 years to life in exchange for his plea of guilty to the two charged offenses and his admission of the truth of the allegations. Pursuant to his plea agreement, Treen also waived certain appeal rights:

"8. (Appeal Rights) I give up my right to appeal the following: 1) denial of my [Penal Code section] 1538.5 motion, 2) issues related to strikes priors (under [Penal Code] sections 667[, subds.] (b)-(i) and 1170.12), and 3) any sentence stipulated herein." (Italics added.)

Treen placed his initials adjacent to paragraph 8 of his plea agreement. After questioning Treen on his understanding of his rights and agreement to the specific terms of the plea agreement, the trial court accepted Treen's guilty pleas and admissions.

On December 3, the trial court denied Treen's request to dismiss one of his two prior strike conviction allegations and dismissed the two prison prior allegations. The court then sentenced Treen to concurrent terms of 25 years to life in prison for each of his two offenses.

On May 13, 2005, Treen filed a notice of appeal, but did not obtain a certificate of probable cause pursuant to Penal Code section 1237.5.^[2]

DISCUSSION

I

Abuse of Discretion under Penal Code Section 1385

Treen contends the trial court abused its discretion under Penal Code section 1385 by denying his request to dismiss one of his two prior strike conviction allegations. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) However, the People assert Treen waived his right to raise that contention on appeal because of the express language contained in paragraph 8 of his plea agreement.^[3]

A

Treen signed a plea agreement pursuant to which he expressly waived his "right to appeal the following: . . . 2) issues relating to strikes priors (under [Penal Code] sections 667[, subds.] (b)-(i), 1170.12) . . . ." (Italics added.) Treen placed his initials adjacent to that waiver provision. At the February 26, 2003 hearing during which the trial court accepted Treen's plea agreement, Treen confirmed he understood that he faced a potential sentence of 27 years to life. The court then expressly addressed the issue of its discretion to dismiss one of Treen's two prior strike conviction allegations:

"Okay. You need to also understand that your attorney is going to be making a motion for the court to strike one of your priors. The court does have the discretion to strike a prior strike, but I am not making any promises. And I may very well deny that motion. So you could be looking at 27 years to life."

Treen confirmed he understood that. He also confirmed he had discussed the contents of the plea agreement with his attorney before initialing and signing it. He confirmed that he did not have any questions about the plea agreement. Treen then pleaded guilty to the two counts and admitted the truth of the allegations. The court then confirmed that Treen waived certain appeal rights, including "issues related to strike priors." The prosecutor addressed Treen's possible motion to dismiss one of Treen's two prior strike conviction allegations:

"I did just want to emphasize one thing, which I neglected to do earlier, which is, I know we are going to have a [People v. Superior Court (Romero) (1996) 13 Cal.4th 497] hearing in this case. I just want to make it very clear that the People will oppose any Romero motion. So we are just all on the same page here, that no benefits, no deals. And, in fact, we are going to argue that the court should not strike a strike and that he should get the sentence of 25 years to life."

When the court asked Treen whether he understood the prosecutor's statement, he replied he did. Treen's counsel also confirmed that understanding, stating: "The no deals is part of the form that we actually wrote."

On December 3, the trial court denied Treen's request to dismiss one of his two prior strike conviction allegations. The court sentenced Treen to concurrent terms of 25 years to life in prison for his two offenses.

B

"A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] 'The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. [Citation.] If contractual language is clear and explicit, it governs. [Citation.] On the other hand, "[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it." [Citations.]' [Citation.] 'The mutual intention to which the courts give effect is determined by objective manifestations of the parties' intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. [Citations.]' [Citations.]" (People v. Shelton (2006) 37 Cal.4th 759, 767.) In particular, "a defendant [may] waive the right to appeal as part of the [plea] agreement. [Citations.] [¶] . . . Waivers may be manifested either orally or in writing. [Citation.]" (People v. Panizzon (1996) 13 Cal.4th 68, 80, fn. omitted.)

C

In the circumstances of this case, we conclude Treen validly waived his right to appeal the issue of whether the trial court abused its discretion by denying his request to dismiss one of his two prior strike conviction allegations.^[4] Paragraph 8 of Treen's plea agreement expressly waived his right to appeal "issues relating to strikes priors (under [Penal Code] sections 667[, subds.] (b)-(i), 1170.12) . . . ." (Italics added.) That waiver language referred to the allegations regarding Treen's prior strike convictions for purposes of sentencing him under the three strikes law. By the plea agreement's unqualified use of the term "issues," the agreement did not limit the issues relating to Treen's prior strike conviction allegations. On the contrary, the only reasonable interpretation of that language is Treen waived all issues relating to his prior strike convictions under the three strikes law. In so doing, Treen waived the issue of whether the trial court abused its discretion by not dismissing one of his two prior strike conviction allegations for purposes of sentencing him under the three strikes law.

To the extent there may have been any ambiguity regarding the inclusion of the instant issue within his waiver of appeal rights, the trial court at the February 26, 2003 hearing on Treen's plea agreement expressly addressed the issue of its discretion to dismiss one of his two prior strike conviction allegations, noting it expected his counsel to file such a motion to dismiss and advising Treen that it had "the discretion to strike a prior strike, but . . . may very well deny that motion." Treen confirmed he had discussed the contents of the plea agreement with his attorney before initialing and signing it. The trial court confirmed Treen understood that as part of his plea agreement he was waiving his right to appeal "issues related to strike priors." The prosecutor informed Treen and the court that she would oppose any motion to dismiss one of Treen's prior strike convictions and would argue that he should receive a sentence of 25 years to life. Because of this specific discussion of Treen's anticipated motion to dismiss one of his two prior strike conviction allegations for purposes of sentencing him under the three strikes law, his express waiver in the plea agreement of his right to appeal "issues related to strikes priors (under [Pen. Code] sections 667[, subds.] (b)-(i)" can be reasonably construed as including his waiver of his right to raise the contention on appeal that the trial court abused its discretion in denying his motion to dismiss one of his two prior strike conviction allegations for purposes of sentencing him under the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). Accordingly, Treen has waived that contention and cannot raise it on appeal.

II

Cruel and Unusual Punishment

Treen contends his sentence of 25 years to life in prison is cruel and unusual punishment in violation of the United States and California Constitutions. However, the People assert Treen cannot raise that contention on appeal because he waived it in his plea agreement and, in addition, did not obtain a certificate of probable cause to appeal.

A

Penal Code section 1237.5 provides that a defendant may not appeal "from a judgment of conviction entered on a plea of guilty or nolo contendere" unless the defendant has applied to the trial court for, and the trial court has executed and filed, "a certificate of probable cause for the appeal." (People v. Mendez (1999) 19 Cal.4th 1084, 1094-1095.) "Despite this broad language, . . . two types of issues may be raised on appeal following a guilty or nolo plea without the need for a certificate: issues relating to the validity of a search and seizure, for which an appeal is provided under [Penal Code] section 1538.5, subdivision (m), and issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed." (People v. Buttram (2003) 30 Cal.4th 773, 780.) That latter exception has been interpreted as generally allowing appeals based on "grounds that arose after entry of the plea and do not affect the plea's validity." (Cal. Rules of Court, rule 30(b)(4).) However, because "a challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself," a defendant must obtain a certificate of probable cause to challenge that sentence on appeal. (People v. Panizzon, supra, 13 Cal.4th at p. 79.)

In People v. Shelton, supra, 37 Cal.4th 759, the court "conclude[d] that inclusion of a sentence lid [in a plea agreement] implies a mutual understanding and agreement that the trial court has authority to impose the specified maximum sentence and preserves only the defendant's right to urge that the trial court should or must exercise its discretion in favor of a shorter term. Accordingly, a challenge to the trial court's authority to impose the lid sentence is a challenge to the validity of the plea requiring a certificate of probable cause." (Id. at pp. 763.) Shelton explained:

"[T]he 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 . . . .

"Viewed in this light, when a plea agreement includes a specified maximum sentence, a provision recognizing the defendant's right to 'argue for a lesser term' is generally understood to mean only that the defendant may urge the trial court to exercise its sentencing discretion in favor of imposing a punishment that is less severe than the maximum punishment authorized by law." (People v. Shelton, supra, 37 Cal.4th at p. 768.)

If a defendant's plea agreement does not expressly or impliedly preserve a right to challenge the trial court's authority to impose the lid sentence (or any lesser sentence), a defendant is required to obtain a certificate of probable cause to challenge that authority on appeal because that challenge is, in substance, a challenge to the plea's validity. (Id. at pp. 768-769.) Absent a certificate of probable cause, that issue cannot be raised on appeal. (Id. at p. 769.)

B

Treen did not obtain a certificate of probable cause to file the instant appeal. Therefore, absent an express or implied reservation of a right to challenge on appeal his sentence of 25 years to life as unconstitutionally cruel and unusual, he cannot raise that issue on appeal because it in effect challenges the plea's validity. (People v. Shelton, supra, 37 Cal.4th at pp. 768-769; People v. Panizzon, supra, 13 Cal.4th at p. 79.) Because Treen's plea agreement does not contain any reservation of that specific appeal right and, like Shelton, includes a lid or maximum sentence that the trial court can impose, his challenge to the sentence imposed within that lid constraint (i.e., 25 years to life) is a challenge to the authority of the court to impose that sentence and thereby in effect challenges the plea's validity. (Shelton, at pp. 768-769; Panizzon, at p. 79 ["[A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself."].) In so doing, Treen was required to obtain a certificate of probable cause to raise that issue on appeal. (Shelton, at p. 769; Panizzon, at p. 79.)

Shelton cited with approval the case of People v. Young (2000) 77 Cal.App.4th 827. (People v. Shelton, supra, 37 Cal.4th at pp. 770-771.) Young is apposite to this case. In Young, the defendant entered into a plea agreement providing for a maximum sentence of 25 years to life and an opportunity for the defendant to request the trial court to dismiss one or more of his prior strike conviction allegations. (Young, at pp. 829-830.) The defendant did not reserve the right to challenge the constitutionality of the maximum sentence. (Id. at p. 834.) After the trial court denied his request to dismiss one or more of his prior strike conviction allegations and sentenced him to 25 years to life, the defendant appealed on the ground that the sentence imposed was cruel and unusual punishment. (Id. at p. 830.) Young stated:

"[D]efendant in this case is attacking the validity of his plea. The prosecution agreed to a maximum sentence of 25 years to life in return for defendant's plea. Yet, defendant now attacks that maximum sentence on the ground that it is cruel and unusual punishment. By arguing that the maximum sentence is unconstitutional, he is arguing that part of his plea bargain is illegal and is thus attacking the validity of the plea. Having failed to obtain a certificate of probable cause, defendant cannot appeal. [Citation.]" (People v. Young, supra, 77 Cal.App.4th at p. 832.)

Young concluded: "[D]efendant's challenge to the constitutionality of the maximum sentence that was part of his plea bargain is no less an attack on the validity of his plea. Accordingly, under the reasoning of Panizzon, supra, 13 Cal.4th at pages 78-79, his appeal must be dismissed by virtue of his failure to obtain a certificate of probable cause." (Id. at p. 829.) Accordingly, Young dismissed the defendant's appeal. (Id. at p. 834.)

Treen's plea agreement provided for a maximum sentence of 27 years to life and did not reserve a right to challenge on appeal the constitutionality of that maximum (or lesser) sentence (whether as cruel and unusual punishment or otherwise). Therefore, Treen's appellate challenge to his sentence of 25 years to life based on its purported unconstitutionality as cruel and unusual punishment in effect attacks the validity of his plea agreement. Because Treen did not obtain a certificate of probable cause, he cannot raise that issue on appeal. (People v. Shelton, supra, 37 Cal.4th at pp. 768-769; People v. Panizzon, supra, 13 Cal.4th at p. 79; People v. Young, supra, 77 Cal.App.4th at pp. 829, 832-834.)^[5]

III

Equal Protection Under the Law

Treen contends the trial court violated his constitutional right to equal protection under the law by sentencing him to 25 years to life in prison. However, the People assert Treen cannot raise that contention on appeal because he waived it in his plea agreement and, in addition, did not obtain a certificate of probable cause to appeal.

Applying our reasoning in response to Treen's cruel and unusual punishment contention, we conclude Treen cannot challenge the constitutionality of his sentence on the ground that it violated his right to equal protection under the law. Treen's plea agreement provided for a maximum sentence of 27 years to life and did not reserve a right to challenge on appeal the constitutionality of that maximum (or lesser) sentence. Therefore, Treen's appellate challenge to his sentence of 25 years to life based on its purported violation of his constitutional right to equal protection under the law in effect attacks the validity of his plea agreement. Because Treen did not obtain a certificate of probable cause, he cannot raise that issue on appeal. (People v. Shelton, supra, 37 Cal.4th at pp. 768-769; People v. Panizzon, supra, 13 Cal.4th at p. 79; People v. Young, supra, 77 Cal.App.4th at pp. 829, 832-834.)^[6]

DISPOSITION

The appeal is dismissed.

McDONALD, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.

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^[1] Because Treen pleaded guilty to the offenses and admitted the truth of the allegations, we only briefly discuss the factual background of this case.

^[2] On June 1, we granted Treen's motion for relief from default for filing a late notice of appeal and deemed his notice of appeal timely filed.

^[3] Unfortunately, Treen did not file a reply brief responding to the People's waiver assertion and other assertions.

^[4] Treen does not assert the waiver of appeal rights pursuant to his plea agreement was not knowing, intelligent, or voluntary. (Cf. People v. Panizzon, supra, 13 Cal.4th at p. 80.) In any event, the record would not appear to support such a finding in this case.

^[5] Because we dispose of this issue on the ground that Treen failed to obtain a certificate of probable cause, we need not address the People's alternative assertion that Treen waived the issue of cruel and unusual punishment.

^[6] Because we dispose of this issue on the ground that Treen did not obtain a certificate of probable cause, we need not address the People's alternative assertion that Treen waived the equal protection issue on appeal.