People v. Wright

• Decision Date: 25 January 2019
• Docket Number: D073038
• Parties: The PEOPLE, Plaintiff and Respondent, v. Justin Michael WRIGHT, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

31 Cal.App.5th 749

242 Cal.Rptr.3d 837

The PEOPLE, Plaintiff and Respondent,

v.Justin Michael WRIGHT, Defendant and Appellant.

D073038

Court of Appeal, Fourth District, Division 1, California.

Filed January 25, 2019

Linnea M. Johnson, 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, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.

NARES, Acting P. J.

In exchange for a stipulated 11-year sentence and the dismissal of other counts, Justin Michael Wright pleaded guilty to transporting a controlled substance ( Health & Saf. Code,¹ § 11352, subd. (a) ). He also admitted having a strike prior and one prior conviction for a violation of section 11351.5, thereby triggering the imposition of a three-year enhancement under section 11370.2, subdivision (a). In a written plea agreement, Wright waived his right to appeal, including among other things, "any sentence stipulated herein." The court sentenced Wright to the stipulated 11-year prison term, which consisted of the four-year midterm doubled for the strike prior, plus a three-year enhancement under 11370.2, subdivision (a). At the time of Wright's sentencing, section 11370.2, subdivision (a) required "in addition to any other punishment authorized by law" a "full, separate and consecutive" three-year term if a defendant was convicted of violating section 11352 and had suffered a previous conviction for various drug offenses, including section 11351.5. (Stats. 1998, ch. 936, § 1, p. 6846.)

In October 2017 the Governor signed Senate Bill No. 180 (2017–2018 Reg. Sess.), which amended section 11370.2, effective January 1, 2018, to limit the scope of the enhancement to apply only to prior convictions for a violation of section 11380.² ( People v. Millan (2018) 20 Cal.App.5th 450, 454, 228 Cal.Rptr.3d 647 ; Stats. 2017, ch. 677, § 1, p. 5031.) The Millan court held that amended section 11370.2 applies retroactively to actions in which the judgment is not final. ( Millan , at p. 455, 228 Cal.Rptr.3d 647 ; In re Estrada (1965) 63 Cal.2d 740, 748, 48 Cal.Rptr. 172, 408 P.2d 948 ["[W]here the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed" so long as the amended statute takes effect before the judgment of conviction becomes final.].) Thus, as of January 1, 2018, the three-year enhancement imposed on Wright's sentence would be unauthorized.

Acting in propria persona, Wright timely appealed. When Wright obtained appellate counsel, counsel sought leave to file an amended notice of appeal and seek a certificate of probable cause. Wright indicated that he intended to argue on appeal that amended section 11370.2 applied retroactively. He asserted that a certificate of probable cause was not required because retroactive application of this change in the law does not affect the validity of his plea, citing Harris v. Superior Court (2016) 1 Cal.5th 984, 209 Cal.Rptr.3d 584, 383 P.3d 648 ( Harris ). In Harris , the California Supreme Court quoted Doe v. Harris (2013) 57 Cal.4th 64, 158 Cal.Rptr.3d 290, 302 P.3d 598 ( Doe ) which declared the general rule that all plea bargains are deemed to "contemplate and incorporate" subsequent changes in the law. ( Harris , at p. 990, 209 Cal.Rptr.3d 584, 383 P.3d 648 ; Doe, at p. 66, 158 Cal.Rptr.3d 290, 302 P.3d 598.) Nonetheless, Wright requested a certificate of probable cause in an abundance of caution. The trial court granted Wright's unopposed request.

Wright contends that the ameliorative provision of amended section 11370.2 applies retroactively because his case is not yet final, and we should vacate the now inapplicable three-year enhancement, arguing that there is no need to remand the matter to the trial court for resentencing. The People moved to dismiss the appeal, arguing that: (1) Wright's failure to timely seek a certificate of probable cause precludes appellate review of his sentence, and (2) Wright waived his right to appeal because the enhancement was part of a negotiated plea. The People concede that if we deny the motion to dismiss and reach the merits of Wright's appeal that the enhancement imposed under section 11370.2 must be stricken and that the matter should be remanded with orders to strike the enhancement and resentence Wright.

We granted Wright's unopposed motion to deem the certificate of probable cause operative for purposes of appeal. This order moots the People's contention that the appeal should be dismissed for lack of a certificate of probable cause, and we do not address the merits of this issue. The remaining question is whether a defendant's waiver of the right to appeal a stipulated sentence applies to a future sentencing error based on a change in the law of which the defendant is unaware at the time the plea is entered.

As we shall explain, we conclude that Wright did not waive the right to appeal future sentencing error based on a change in the law of which he was unaware at the time he entered his plea. Accordingly, we deny the motion to dismiss the appeal, affirm Wright's conviction, but reverse the sentence and remand the matter to the trial court with directions to strike the section 11370.2, subdivision (a) enhancement and resentence Wright accordingly.

DISCUSSION

Relying on People v. Panizzon (1996) 13 Cal.4th 68, 51 Cal.Rptr.2d 851, 913 P.2d 1061 ( Panizzon ), the People contend that this appeal must be dismissed because the enhancement was part of a negotiated plea where Wright stipulated to an 11-year prison sentence and expressly waived his right to appeal "any sentence stipulated herein." Accordingly, the People assert that the parties contemplated, at the time Wright entered his guilty plea, that the waiver would apply to future error, including error with respect to the length of his sentence. Wright disagrees, arguing that his waiver of the right to appeal did not apply to a future sentencing error of which he was unaware at the time he entered the plea.

"[A] ‘negotiated plea agreement is a form of contract,’ [and] it is interpreted according to general contract principles. [Citation.] Acceptance of the agreement binds the court and the parties to the agreement. [Citations.] ‘ "When a guilty [or nolo contendere] 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." ’ " ( People v. Segura (2008) 44 Cal.4th 921, 930-931, 80 Cal.Rptr.3d 715, 188 P.3d 649 ( Segura ).) Although the trial court retains inherent sentencing discretion, it must impose a sentence within the bounds of the plea agreement. ( Id. at p. 931, 80 Cal.Rptr.3d 715, 188 P.3d 649.)

A plea bargain may include the waiver of the right to appeal. ( Panizzon , supra , 13 Cal.4th at p. 80, 51 Cal.Rptr.2d 851, 913 P.2d 1061.) "Waivers may be manifested either orally or in writing." ( Ibid. ) " ‘[T]he valid waiver of a right presupposes an actual and demonstrable knowledge of the very right being waived. [Citations.]’ [Citation.] It ‘ "[i]s the intelligent relinquishment of a known right after knowledge of the facts." [Citation.]’ [Citation.] The burden is on the party claiming the existence of the waiver to prove it by evidence that does not leave the matter to speculation, and doubtful cases will be resolved against a waiver. [Citation.] The right of appeal should not be considered waived or abandoned except where the record clearly establishes it." ( People v. Vargas (1993) 13 Cal.App.4th 1653, 1662, 17 Cal.Rptr.2d 445.)

In Panizzon , supra , 13 Cal.4th 68, 51 Cal.Rptr.2d 851, 913 P.2d 1061, the defendant received a written advisement of his appellate rights and agreed, in writing, to waive his right to appeal the sentence. ( Id. at pp. 82, 85-86, 51 Cal.Rptr.2d 851, 913 P.2d 1061.) Defendant subsequently appealed, "identifying the claim that his sentence was disproportionate to the sentences imposed upon his codefendants and thereby violative of the federal and state constitutional prohibitions against cruel and unusual punishment." ( Id. at p. 74, 51 Cal.Rptr.2d 851, 913 P.2d 1061.) Our high court held that the defendant's claim fell within the scope of the appellate waiver and was not reviewable on appeal. ( Id. at p. 89, 51 Cal.Rptr.2d 851, 913 P.2d 1061.) The court explained: "Not only did the plea agreement in this case specify the sentence to be imposed, but by its very terms the waiver of appellate rights also specifically extended to any right to appeal such sentence. Thus, what defendant seeks here is appellate review of an integral element of the negotiated plea agreement, as opposed to a matter left open or unaddressed by the deal." ( Id. at pp. 85-86, 51 Cal.Rptr.2d 851, 913 P.2d 1061.) The Panizzon court rejected the defendant's characterization of the issue on appeal as an " ‘unforeseen or unknown error’ ... because the sentence imposed by the court was neither unforeseen nor unknown at the time defendant executed the Waiver and Plea agreement" ( id. at p. 86, 51 Cal.Rptr.2d 851, 913 P.2d 1061 ) and stated "the real thrust of defendant's claim concerns events predating entry of the plea and waiver." ( Ibid. )

"[A] waiver that is nonspecific, e.g., ‘I waive my appeal rights’ or ‘I waive my right to appeal any ruling in this case,’ " is considered a general waiver. ( Panizzon , supra , at p. 85, fn. 11, 51 Cal.Rptr.2d 851, 913 P.2d 1061.) "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. [Citation.] Thus, a waiver of appeal rights does not apply to ‘ "possible future error" [that] is outside the...