People v. Vargas

• Decision Date: 05 March 1993
• Docket Number: No. E009786,E009786
• Citation: 13 Cal.App.4th 1653,17 Cal.Rptr.2d 445
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond Anthony VARGAS, Defendant and Appellant.

Page 445

17 Cal.Rptr.2d 445

13 Cal.App.4th 1653

PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond Anthony VARGAS, Defendant and Appellant.

No. E009786.

Court of Appeal, Fourth District, Division 2, California.

March 5, 1993.

Certified for Partial Publication. ^*

Review Denied June 24, 1993.

[13 Cal.App.4th 1655] Sharon M. Jones, Ventura, 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., Pat Zaharopoulos, Supervising Deputy Atty. Gen., and Gil P. Gonzalez, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

McKINSTER, Associate Justice.

Defendant appeals his conviction by plea of guilty to one count of robbery with a firearm use enhancement also admitted. On appeal defendant contends that the court erred in refusing to grant his motion for a continuance which he brought on the eve of trial immediately after the court granted his motion to proceed in propria persona (pro. per.) thereby denying his right to effective assistance of counsel. He further contends the court erred in reducing his conduct credits by 10 days at his sentencing hearing.

The People contend this appeal should be dismissed because defendant waived his right of appeal as part of his negotiated plea agreement. We conclude defendant made a knowing, intelligent and voluntary waiver of his right to appeal any error occurring prior to his waiver; therefore, we will not consider his claim of error regarding the denial of his motion to continue and the deprivation of his right to effective assistance of counsel. We also conclude, however, that he did not make a knowing and intelligent waiver of prospective sentencing error. Considering his remaining claim of sentencing error on the merits, we find no error. Therefore, the judgment is affirmed.

PROCEDURAL BACKGROUND

A consolidated information charged the defendant with three counts of robbery (Pen.Code, § 211), ¹ three counts of false imprisonment by violence (§ 236), and one count of commercial burglary (§ 459). The information further alleged a principal was armed with a firearm in four of the counts (§ 12022, subd. (a)), and defendant personally used a firearm as to two of the counts causing the offenses to become serious felonies (§§ 1203.06, subd. (a)(1), 12022.5, 1192.7, subd. (c)(8)).

Defendant initially entered a plea of not guilty to the charges and denied the allegations. On February 16, 1990, the court denied defendant's motion to relieve the public defender. On March 19, 1990, the court granted the public defender's motion to be relieved and appointed attorney Frank Cardinal to represent defendant. On March 20, 1990, the court relieved Cardinal and appointed David Marcus as defendant's attorney. Several months later, the court granted defendant's motion to proceed in pro. per. but denied defendant's motion for advisory counsel. On July 6, 1990, the court granted defendant's motion to be relieved of pro. per. status and appointed David Karlson as attorney. On October 12, 1990, the court denied defendant's motion to relieve Karlson and to proceed in pro. per. On January 9, 1991, the court relieved Karlson pursuant to defendant's motion and granted defendant pro. per. status but denied defendant's motion for a continuance.

Defendant's trial began January 10, 1991, and proceeded through the conclusion of the People's case-in-chief. After a settlement discussion with the prosecutor, defendant pled guilty to count 5, robbery, and admitted an allegation that he personally used a firearm during the commission of the robbery. All other charges were to be dismissed. The agreement also provided defendant would receive the middle term of three years plus two years for the enhancement. As part of his plea agreement, defendant waived his right of appeal. The court appointed Roger Remlinger to represent defendant at the sentencing hearing; however, Remlinger also advised defendant at the time the court accepted defendant's plea. Later, the court denied defendant's motion to withdraw his plea.

Pursuant to the plea agreement, the court sentenced defendant to three years for the robbery plus two years to be served consecutively for the enhancement. All remaining counts and allegations were dismissed. The court gave defendant a total of 764 days of credit after subtracting 10 days of conduct credit, ² noting "defendant has a behavioral problem."

DISCUSSION ³

I. The waiver of the right of appeal.

As part of the negotiated plea agreement, defendant expressly waived his right of appeal. He signed a written change of plea form which contained a general waiver of the right of appeal, and at the time it accepted defendant's plea the court inquired, "Now, I understand you've waived your rights to appeal as a result of this arm's length negotiation; is that true?" Defendant replied, "Yes, sir." Defendant now challenges the validity of that waiver.

A majority of jurisdictions which have considered the issue of waiver of appeal rights has held the express waiver of the right to appeal made pursuant to a negotiated plea agreement is not invalid per se and is enforceable provided the waiver is knowing, intelligent and voluntary. Such agreements are not inherently coercive or involuntary nor do they violate due process or public policy. (See, e.g., United States v. Rutan (8th Cir.1992) 956 F.2d 827; United States v. Davis (4th Cir.1992) 954 F.2d 182, 184-186; United States v. Navarro-Botello (9th Cir.1990) 912 F.2d 318; Gwin v. State (Ala.Crim.App.1984) 456 So.2d 845, 848-849; Staton v. Warden (1978) 175 Conn. 328, 334-335 ; People v. Fearing (1982) 110 Ill.App.3d 643, 644-645 ; Judy v. State (1981) 275 Ind. 145 ; State v. Hinners (Iowa 1991) 471 N.W.2d 841, 843-844; Weatherford v. Commonwealth (Ky.1986) 703 S.W.2d 882; State v. McKinney (La.1981) 406 So.2d 160; Cubbage v. State (1985) 304 Md. 237, 246-248 ; People v. Rodriguez (1991) 192 Mich.App. 1 ; People v. Seaberg (1989) 74 N.Y.2d 1, 543 N.Y.S.2d 968, 541 N.E.2d 1022, 1024-1026; State ex rel. Adams v. Norvell (1969) 1 Tenn.Crim.App. 648 ; State v. Perkins (1987) 108 Wash.2d 212 .) Only a few jurisdictions have taken a different view. (See, e.g., State v. Ethington (1979) 121 Ariz. 572 [The waiver of the right to appeal violates public policy.]; Ballweber v. State (Minn.App.1990) 457 N.W.2d 215, 217-218 [The decision concerns the appeal of a sentence and is based on a Minnesota statute and sentencing guidelines.]; see also State v. Sainz (1987) 107 N.J. 283, 526 A.2d 1015, 1021 [The defendant may appeal despite the waiver, but the appeal acts as a rescission of the negotiated agreement, and the prosecutor may reinstate the charges.].) ⁴

The only California case directly on point is People v. Nguyen (1993) 13 Cal.App.4th 114, 16 Cal.Rptr.2d 490. There the court found valid a general waiver of the right of appeal pursuant to a negotiated plea stating, "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...." (Id. at p. 119, 16 Cal.Rptr.2d 490.)

Plea negotiation, which resulted in defendant's waiver of his right of appeal in the present case, is an accepted and integral part of our criminal justice system. (People v. Charles (1985) 171 Cal.App.3d 552, 558, 217 Cal.Rptr. 402.) Plea agreements benefit the criminal justice system by providing speed, economy and finality of judgments. (United States v. Rutan, supra, 956 F.2d at p. 829.) Defendants also benefit from plea agreements by gaining concessions from the People. (Id.) The benefits of a plea agreement would be eliminated if courts disallowed the waiver of the right of appeal to which the parties have agreed. (United States v. Wiggins (4th Cir.1990) 905 F.2d 51, 54.)

Negotiated plea agreements do "[n]ot violate the Constitution, even though a guilty plea waives important constitutional rights. Newton v. Rumery, 480 U.S. 386, 393, 107 S.Ct. 1187, 1192, 94 L.Ed.2d 405 (1987).... It is well-settled that a defendant may affirmatively waive constitutional rights to a jury trial, to confront and cross examine witnesses, and to the Fifth Amendment privilege against self incrimination. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274. (1969). A defendant may also waive the right to counsel. Faretta v. California 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975)." (United States v. Rutan, supra, 956 F.2d at p. 829.)

The right to appeal a criminal conviction has no roots in the United States or California Constitutions and is a statutory right only. (Abney v. United States (1977) 431 U.S. 651, 656 [97 S.Ct. 2034, 52 L.Ed.2d 651]; § 1237; People v. Charles, supra, 171 Cal.App.3d at p. 557, 217 Cal.Rptr. 402.) 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, provided it is knowing, intelligent and voluntary. (United States v. Rutan, supra, 956 F.2d at p. 829; United States v. Wiggins, supra, 905 F.2d at p. 54; People v. Charles supra, 171 Cal.App.3d at p. 559, 217 Cal.Rptr. 402.) We hold, therefore, an 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. One appellate court has strongly encouraged prosecutors and trial judges to consider such waivers during plea negotiations. (People v. Olson (1989) 216 Cal.App.3d 601, 604-605, 264 Cal.Rptr. 817.) ⁵

Defendant argues that his waiver of the right of appeal was a...