People v. Cisneros-Ramirez

• Decision Date: 26 November 2018
• Docket Number: G055409
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Juan CISNEROS-RAMIREZ, Defendant and Appellant.

29 Cal.App.5th 393

240 Cal.Rptr.3d 204

The PEOPLE, Plaintiff and Respondent,

v.Juan CISNEROS-RAMIREZ, Defendant and Appellant.

G055409

Court of Appeal, Fourth District, Division 3, California.

Filed November 26, 2018

Law Office of Stephen J. Mooney and Stephen J. Mooney, Irvine, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THOMPSON, J.

Defendant Juan Cisneros-Ramirez’s sole contention on appeal is the lower court erred in denying his pretrial motion to suppress statements he claims were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ( Miranda ). However, defendant’s subsequent unequivocal waiver of his right to appeal precludes our review of his appellate contention. Thus, "[b]ecause we conclude [defendant] waived his right to appeal the denial of the suppression motion, we need not address the merits of his appeal." ( People v. Castrillon (1991) 227 Cal.App.3d 718, 723, fn. 2, 278 Cal.Rptr. 121 ( Castrillon ).) Moreover, the certificate of probable cause issued in this case does not affect our conclusion since it was legally ineffectual, having certified an issue that is not cognizable following a guilty plea. Consequently, the judgment is affirmed.

FACTS

Defendant was charged with two counts of oral copulation or sexual penetration of a child 10 years old or younger ( Pen. Code, § 288.7, subd. (b) ; all subsequent statutory references are to the Penal Code), and three counts of committing a lewd act upon a child under the age of 14 (§ 288, subd. (a) ). The first two charges are each separately punishable "by imprisonment in the state prison for a term of 15 years to life." ( § 288.7, subd. (b).) If convicted as charged, defendant faced a potential sentence of two consecutive 15-years-to-life indeterminate prison terms, plus additional determinate prison terms for the three child molestation counts.

The matter was sent out for trial to Judge Thomas M. Goethals. In pretrial proceedings, defendant moved to suppress the statements he had made to Orange County Sheriff’s deputies following his arrest, alleging they were obtained in violation of Miranda . After a full evidentiary hearing, Judge Goethals denied the suppression motion.

Following the denial of the suppression motion, unrelated discovery issues arose, necessitating a trial continuance. As a result, the matter was returned to the master calendar court and eventually sent out for trial before Judge James E. Rogan. The court and the parties discussed the impact, if any, of Judge Goethals’s earlier ruling denying the suppression motion, and whether Judge Rogan was free to rehear the motion. However, the issue became moot when defendant and the prosecutor reached a plea bargain.

Defendant agreed to plead guilty to 12 amended counts of commission of a lewd act on a child under the age of 14 (§ 288, subd. (a) ) in exchange for the dismissal of the more serious section 288.7 charges. Judge Rogan accepted the parties’ plea agreement and sentenced defendant to an agreed-upon determinate term of 30 years in prison.

In pleading guilty, defendant initialed and signed a guilty plea form that included a paragraph stating: "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 Penal Code section 1538.5. I waive and give up my right to appeal from my guilty plea."

In addition, defendant initialed a paragraph averring: "I offer my plea of guilty freely and voluntarily, and with full understanding of all matters set forth in the accusatory pleading and this advisement and waiver of rights form." Another paragraph, also initialed by defendant, states:

"I understand each and every one of the rights set forth above in this advisement and waiver of rights form. I waive and give up each of those rights in order to enter my guilty plea. ... I declare under penalty of perjury I have read, understood, and personally initialed each [paragraph of the plea form], and I have discussed them with my attorney."

Defense counsel also signed the guilty plea form, attesting: "I have explained to defendant each of the rights set forth on this form. ... I also have discussed the contents of this form with defendant. ... I agree that this form may be received by the court as evidence of defendant’s advisement and voluntary, intelligent, knowing, and express waiver of the rights set forth on this form."

Finally, Judge Rogan went over the form with defendant in court, advised him of the constitutional rights he was waiving by pleading guilty, made inquiries into whether defendant understood everything in the guilty plea form, whether he had discussed the form and its contents with his attorney, and whether defendant had any questions or concerns.

Despite having waived his appellate rights, six weeks later—represented by a new attorney—defendant filed a notice of appeal and a request for a certificate of probable cause pursuant to section 1237.5.¹ Judge Goethals signed the certificate of probable cause, even though he was not the judge who accepted defendant’s guilty plea. The record is silent as to whether defendant asked Judge Rogan for a certificate of probable cause.

In his request for a certificate of probable cause, defendant alleged his Miranda suppression motion was erroneously denied and, as a result, he was "forced to plea bargain where additional charge[s] were interlineated and the two life sentence charges dropped resulting in a 30 year prison term." Defendant’s section 1237.5 declaration does not mention his appellate waivers.

In his opening brief in this court, defendant challenged Judge Goethals’s denial of his suppression motion on the merits, but again did not refer to his appellate waivers. Nor did the Attorney General. Consequently, we invited supplemental briefing from the parties to address whether defendant’s appellate waivers affect the current appeal, and if so, whether Judge Goethals’s certificate of probable cause has any additional effect.

In his response, while acknowledging his general appellate waivers, defendant contends the failure to advise him specifically of his section 1237.5 rights during his guilty plea means he did not waive his section 1237.5 appellate rights. Additionally, defendant argues Judge Goethals’s certificate of probable cause permits him to appeal the merits of his Miranda claim, any waivers notwithstanding. We reject both claims.

We find defendant’s appellate waivers were knowing, intelligent and voluntary. In addition, his waivers encompassed not only his general right to appeal "from any and all decisions and orders made in my case," but also his section 1237.5 right to seek a certificate of probable cause to "appeal from my guilty plea." Furthermore, we find Judge Goethals’s apparent acquiescence in defendant’s expressed intention to appeal the Miranda ruling by issuing a certificate of probable cause cannot confer jurisdiction on the appellate court when the Miranda issue proposed to be raised is not cognizable on appeal following a guilty plea. Thus, the certificate of probable cause issued in this matter is without effect.

DISCUSSION

1. Defendant’s Guilty Plea Waived All of His Appellate Rights

A criminal defendant’s right to appeal a conviction in California is purely statutory, as neither the federal nor the state Constitution provides such right. ( Abney v. United States (1977) 431 U.S. 651, 656, 97 S.Ct. 2034, 52 L.Ed.2d 651 ( Abney ) ["[I]t is well settled that there is no constitutional right to an appeal"]; People v. Totari (2002) 28 Cal.4th 876, 881, 123 Cal.Rptr.2d 76, 50 P.3d 781 ( Totari ) [" ‘ "It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute" ’ "].) Moreover, by entering a guilty plea, a defendant waives his right to appeal any errors in the pretrial proceedings. ( People v. DeVaughn (1977) 18 Cal.3d 889, 895-896, 135 Cal.Rptr. 786, 558 P.2d 872 ( DeVaughn ); cf. Tollett v. Henderson (1973) 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 ["When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea"].)

Thus, " ‘[j]ust as 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, so also may a defendant waive the right to appeal as part of the agreement.’ [Citation.] As the Court of Appeal noted in People v. Vargas (1993) 13 Cal.App.4th 1653, 1659, 17 Cal.Rptr.2d 445... ‘If a defendant may waive important constitutional rights by pleading guilty, it follows a fortiori that a defendant may expressly waive his statutory right to appeal as part of a plea agreement ....’ " ( People v. Aparicio (1999) 74 Cal.App.4th 286, 289, 87 Cal.Rptr.2d 750, citing People v. Panizzon (1996) 13 Cal.4th 68, 80, 51 Cal.Rptr.2d 851, 913 P.2d 1061 ( Panizzon ).)

Similarly, "[b]oth our state Supreme Court and the United States Supreme Court have recognized that plea bargaining is based upon ‘reciprocal benefits’ or ‘mutuality of advantage’ between the prosecution and the defendant. [Citations.] Our Supreme Court has repeatedly recognized that ‘ "[w]hen a guilty plea ... is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties ... must abide by the terms of the agreement." ’ [Cita...