People v. Nguyen

• Decision Date: 11 February 1993
• Docket Number: No. G011288,G011288
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Thang Van NGUYEN, Defendant and Appellant.

Page 490

16 Cal.Rptr.2d 490

13 Cal.App.4th 114

The PEOPLE, Plaintiff and Respondent, v. Thang Van NGUYEN, Defendant and Appellant.

No. G011288.

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

Feb. 11, 1993.

Rehearing Denied March 4, 1993.

Fern M. Laethem, State Public Defender, under appointment by the Court of Appeal, and Jill Ishida, Deputy State Public Defender, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Garrett Beaumont and Rhonda L. Cartwright, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

WALLIN, Associate Justice.

Thang Van Nguyen appeals his conviction on multiple counts of robbery, burglary, assault with a deadly weapon, shooting at an occupied building, and false imprisonment, with numerous enhancements. He contends: (1) the abstract of judgment must be corrected to accurately reflect his convictions were for second degree robbery on two counts; (2) his conviction for discharging a weapon at an occupied building was improperly enhanced for use of a gun; (3) two great bodily injury enhancements were improper because they were not proven; (4) the trial court's failure to fix the degree of the robberies and burglaries for which he was convicted requires a reduction in the sentence; and (5) the trial court erred by failing to stay certain counts as required by Penal Code section 654. We affirm.

* * *

Nguyen was charged with numerous violent crimes in two informations, including kidnapping for the purpose of robbery, robbery burglary, assault with a deadly weapon, shooting into an inhabited dwelling, and false imprisonment. On the trial date, he waived the constitutional rights necessary to have the court determine his guilt in both cases based upon the preliminary hearing transcripts. He also waived his right to appeal.

Nguyen was advised of the maximum possible term of 83 years to life, that he would probably be found guilty on all charges except kidnapping for the purpose of robbery, and that the court indicated an actual sentence of 30 years. The court found him guilty and sentenced him to 30 years in prison. ¹ As we shall discuss, explication of the circumstances surrounding the crimes charged is unnecessary to determining the appeal.

I

Preliminarily, the Attorney General urges Nguyen waived his right to appeal. ² We address this issue first, as it could be dispositive.

We held in People v. Castrillon (1991) 227 Cal.App.3d 718, 278 Cal.Rptr. 121 that a criminal defendant could waive the right to appeal the denial of a motion to suppress evidence as part of a plea bargain, provided it was done voluntarily, knowingly and intelligently. (Id. at pp. 721-722, 278 Cal.Rptr. 121.) There is no reason to limit the rule to appeals from the denial of motions to suppress evidence, as long as the prerequisites are met. ³ However, determining a defendant may waive the right to appeal does not define the scope of the waiver.

Nguyen points to People v. Olson (1989) 216 Cal.App.3d 601, 264 Cal.Rptr. 817 as authority for his assertion that a waiver of the right to appeal does not extend to sentences not imposed in accordance with a negotiated agreement or where other sentencing error occurs. The Olson court did make such a pronouncement in a footnote (id. at p. 604, fn. 2, 264 Cal.Rptr. 817), but it was part of dictum suggesting courts and prosecutors extract such waivers. The case did not involve any such waiver and the comment was made as part of the court's expression of angst in resolving what it perceived to be a frivolous appeal. (Id. at pp. 604-605, 264 Cal.Rptr. 817.) Olson does not constrain our determination of the scope of an appeal waiver.

To properly define the reach of such a waiver, we must be mindful of the context in which it normally will be made: a plea or sentence bargain. ⁴ Courts have traditionally viewed such bargains using the paradigm of contract law. (See, e.g., People v. Kaanehe (1977) 19 Cal.3d 1, 13, 136 Cal.Rptr. 409, 559 P.2d 1028 [discussing the availability of specific performance]; People v. Jackson (1981) 121 Cal.App.3d 862, 869, 176 Cal.Rptr. 166 [bargain invalidated due to impossibility]; but see People v. Marsh (1984) 36 Cal.3d 134, 140, 202 Cal.Rptr. 92, 679 P.2d 1033 [bargain does not require the consideration which would support a contract].) Using that analogy, courts should look first to the specific language of the agreement to ascertain the expressed intent of the parties. (See Stevenson v. Oceanic Bank (1990) 223 Cal.App.3d 306, 316, 272 Cal.Rptr. 757; Estate of Wemyss (1975) 49 Cal.App.3d 53, 59, 122 Cal.Rptr. 134.) ⁵ Beyond that, the courts should seek to carry out the parties' reasonable expectations. (Civ.Code, § 1643; County of Marin v. Assessment Appeals Bd. (1976) 64 Cal.App.3d 319, 325, 134 Cal.Rptr. 349.)

Here, the words of the waiver did not connote its scope. We must determine what the parties' reasonable expectations were. This case involved a finding of guilt by submission on the preliminary hearing transcript. It was tantamount to a guilty plea, and the process is sometimes referred to as a "slow plea." (People v. Robertson (1989) 48 Cal.3d 18, 39-40, 255 Cal.Rptr. 631, 767 P.2d 1109; see also Bunnell v. Superior Court (1975) 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086.) Nguyen executed a guilty plea form and, although the proceeding was referred to as a court trial, he did not put on any defense. The court informed him it would "in all probability" find him guilty on all counts except the kidnapping for robbery charges, which carried life sentences. Immediately after taking waivers of the applicable trial rights, the court did just that.

Although this was a "slow plea," Nguyen ordinarily would have retained full appellate rights, including the right to argue the insufficiency of the evidence. (Bunnell v. Superior Court, supra, 13 Cal.3d at p. 604, 119 Cal.Rptr. 302, 531 P.2d 1086.) A waiver under these circumstances surely encompasses sufficiency of the evidence issues. They would be virtually the only issues which could be raised concerning the "trial" itself. ⁶

The remaining issues necessarily concern sentencing error or problems with the judgment. The parties should reasonably expect certain issues would not be waived, including acts beyond the court's jurisdiction. (See, e.g., People v. Jones (1989) 210 Cal.App.3d 124, 136, 258 Cal.Rptr. 294 [parties may not agree to invest the court with fundamental jurisdiction].) For example, the parties could not reasonably expect the defendant would be convicted of a crime not contained in the information or indictment. ⁷

Other possible errors depend upon the nature of the plea agreement. The defendant always retains the right to complain the sentence was in excess of the bargain. (See In re Stanley (1976) 62 Cal.App.3d 71, 77, 131 Cal.Rptr. 608 [trial court cannot impose sentence in excess of bargain].) Otherwise, a deprivation of the benefit of that bargain might arise, for which the waiver of appeal was presumably part of the quid pro quo. ⁸ Fundamental fairness requires a means of redress for a breach of the bargain.

Nguyen argues the defendant should retain all appellate rights relating to sentencing error, citing Bunnell v. Superior Court, supra, 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086 and reasoning "a defendant who submits his cause on the transcript ordinarily waives only the right to a jury trial and the right to appeal issues connected to his court trial." That statement is at odds with Bunnell, where the court held the defendant preserves trial issues such as sufficiency of the evidence. (Id. at p. 604, 119 Cal.Rptr. 302, 531 P.2d 1086.) And, it begs the question: What is the scope of appellate rights when the defendant expressly waives the right to appeal? Bunnell did not address that problem because no waiver was involved.

Alternatively, Nguyen implicitly argues the waiver was invalid because he did not bargain for a specified term of imprisonment. ⁹ Although we see no reason at first blush why a waiver could not be valid where the defendant bargains for an indefinite ("not more than x years") term, we need not answer that question here.

The indicated sentence was 30 years. Although the court did not recite it on the record, it appears in two places on the plea form. Despite some ambiguity in the language and circumstances, ¹⁰ we find there was a bargain for 30 years. First, the court actually imposed a 30-year sentence, with the intent to comply with the indicated sentence. Neither party argued against it. The district attorney offered a memorandum suggesting how the court could impose the 30-year sentence and Nguyen's attorney submitted on it. ¹¹ Whatever vagaries were inherent in the plea form, ¹² after sentencing a de facto bargain had been effectuated, and for purposes of examining an appeal waiver, it was for a sentence certain.

Where defendants have pleaded guilty in return for a specified sentence, appellate courts are not inclined to find error even though the trial court acts in excess of jurisdiction in reaching that figure, as long as the court does not lack fundamental jurisdiction. (People v. Jones, supra, 210 Cal.App.3d 124, 132-136, 258 Cal.Rptr. 294 [defendant estopped from arguing improper dual imposition of enhancement]; see also People v. Beebe (1989) 216 Cal.App.3d 927, 932-933, 265 Cal.Rptr. 242 [defendant was estopped from withdrawing from plea bargain where "straight" felony would be reduced to misdemeanor]; People v. Olson, supra, 216 Cal.App.3d 601, 603, 264 Cal.Rptr. 817 [court declines to redress dual-use-of-facts error].) The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to "trifle with the courts" by attempting to better the bargain through the appellate process. (People v. Beebe, supra, 216...