*1 29, May S103761. 2003.] [No. PEOPLE, and Respondent, Plaintiff
THE BUTTRAM, Defendant and Appellant. LLOYD RANDY *3 Counsel Court, Doerrer, for Defend- F. under Supreme
Amanda appointment and Appellant. ant General,
Bill P. Lockyer, Attorney Anderson, David Druliner and Robert R. Chief General, Schons, Assistant Attorneys W. Assistant Gary Attorney General, Laura Whitcomb Foster, Robert M. T. Halgren, Steven Oetting, Sabrina Cortina, Y. Lane-Erwin and A. General, Natasha Attorneys Deputy for Plaintiff and Respondent.
Opinion
BAXTER, J.
We addressa conflict in the Courts of
about the
proper
Penal Code
application
section 1237.5 and rule
31(d)
California
of Court.1
Rules
These
allow
from
provisions
judg-
ment
entered on a
if
plea only
defendant obtains certificate of
probable cause from the trial
court or
falls within the
two
categories
that do not
grounds
certificate. One “noncertificate”
require
*4
category
claims,
issues,
involves postplea
including
that do
sentencing
not
attack the
of the
validity
plea.
v. Panizzon
People
1061] return for his must obtain a certificate of cause in plea order to probable claim on that the agreed sentence constitutes cruel and unusual punishment. explained We that while such an appeal to involve may appear a issue after the sentencing arising substance it the challenges very rendered, on which the bargain and thus the itself. Addressing analogous we confirmed in v. principle, People Hester 22 Cal.4th 290 (2000) Cal.Rptr.2d P.2d that (Hester) [92 569] “defendants are from estopped of sentences to complaining which they agreed.” (Id., p.
Here, defendant pled guilty drug and admitted two felony charges, prior felonies, serious or violent in return for an agreed maximum or “lid.” The agreement included no waiver of defendant’s to appeal At a sentencing issues. contested the trial court sentencing denied hearing, defendant’s diversion to a it request drug treatment im- program, the cause, maximum. Without a certificate posed negotiated probable of defendant that urging the trial court abused discre- appealed, sentencing decision, tion. In a the Court dismissed published the majority for lack a concluded, certificate. The under Hester majority Panizzon, that he by appealing sentence could be very imposed, effectively attacking plea’s validity. Code; statutory 1All further to the Penal unlabeled references are all rules references are to the California Rules Court. Cole follow declined to majority People The instant Court Appeal a which reached (Cole), (2001) Cal.App.4th Cal.Rptr.2d 174] [106 Court Appeal Another recent in similar circumstances. contrary result decision, v. Stewart concluded, as Cole, but distinguish essentially (Stewart) purported is here, cause certificate that
did Court of Appeal majority its discretion on trial abused argue within maximum. negotiated sentence imposing facts, Cole’s close, on we find The issue is these particular here. issue presented and result more narrow reasoning persuasive otherwise, for a maximum a plea agreement providing Unless specifies to a sentencing proceeding inherently parties’ right reserves here, occurred individualized they may litigate appropriate and the court’s lawful bargain sentence choice within the constraints discretion, otherwise available appellate challenges against and (2) are An court’s exercise of that discretion retained. therefore bargain
exercise of the discretion reserved under the a postplea a claim rarely matter extraneous to Such plea agreement. may merit, reason, For have but it does not attack plea. not required. cause certificate is we will of the Court of We Accordingly, judgment reverse Appeal. *5 Stewart, also to the extent that will disapprove is decision inconsistent with the views in this expressed opinion.
Facts felonies, An for sale charged information defendant with two possession Code, of heroin & Saf. for sale metham (Health 11351) possession § Under the “Three Strikes” law subds. 11378). (§§ (d), phetamine (id., § 1170.12, it had subds. further that defendant alleged was (e)(2), (b), (c)(2)), 1, 2000, On June suffered two violent or serious convictions. prior felony defendant entered a both counts and admitted priors, change- an indicated term of six Neither written years.2 with maximum defendant, nor by form initialed and terms discussed signed any plea of-plea an indication “given plea hearing, had 2At June court confirmed that it six-year prison (Italics upon the under consideration of a maximum state term.” based factors form, defendant, signed state added.) The includes a handwritten change-of-plea written years, and understand the indicated sentence “I is 6 as a lid.” pleading guilty ment that am (Italics apparent an sentence were in deference added.) These references to “indicated” “strikes” under the Three statutory prohibition plea bargaining prior over the dismissal 1170.12, at (see (g), (e)), law subd. because dismissal of least one Strikes subd. §§ eligible term of necessary was him for a prior two “strikes” admitted defendant render court, that open was specified waiving affirmatively issue any sentencing that otherwise arise within the might properly negotiated maximum.* 15, 2000,
On September outset, court held a At the sentencing hearing. the court stated it had before it the The preplea sentencing report. indicated it also had received letters from Teen Challenge International (Teen a drug treatment in which defendant had Challenge), program begun bail, Buttram, while free on participating and from Dorman defendant’s father. Defense counsel then launched extensive that the court argument had that while it “could “options,” just maintain six years indicated,” it could and should alternatively consider its discre- exercising tion defendant, to dismiss both “strikes” and refer prior 51-year-old lifelong offenses, abuser with a. drug record of to a 30-year drug treatment Teen program such as or the Challenge California Rehabilitation Center record, his intent (CRC). Stressing protect suggested counsel there to the effect that could not authority “this be raised on if counsel did not raise the issue.” At one counsel admitted there have been limits on point, always a CRC referral length “because of CRC period custody,” that was “not as in vogue as in the The court then past.” itself interjected questions had effectiveness, been raised about CRC’s and that there doubt whether suitable, CRC would consider defendant because “[m]y understanding it’s more the novice for than for one a long with criminal [that] [offender]” history sales The facing “multiple drug charge.” court indicated had not used CRC “for awhile.” quite did not prosecutor for a treatment object arguments drug dispo-
sition Instead, violated the maximum-term agreement. provision less, years six of the mandatory 25-year-to-life or instead minimum third strike 1170.12, Superior (§§ (e)(1), (2)(A), offenders. (c)(1), (2)(A); subd. subd. see *6 Court (Romero) (1996) (Romero) [sen- discretion, tencing statutory justice, court has of prior felony in furtherance to dismiss However, purposes law].) convictions for of Three Strikes the trial court assured defendant at plea hearing “by the the plea[,] that terms of this should the court reason for some believe that higher years] you your six would be to appropriatef,] permitted withdraw [than again,” years and start suggesting all over thus that six was the maximum term in used, return plea. terminology parties dispute for the the that Whatever was do not defendant term, pled guilty six-year in involving return for assurances of a maximum issue and no the anti-plea-bargaining proceed assumption is before therefore statutes us. We on the that six years negotiated awas maximum. fact, 3In though ultimately appeal defendant choose to of the probation did not the out, guilty search produced leading evidence his he had rather to blacked than initialing, a on the provision change-of-plea written form that him of his advised issues, appeal hereby give right.” such recited up and that “I waive and this She matter, on the merits. she made a brief response before the submitting was drug that defendant’s addiction in the preplea report noted indications and duration, was long guarded, and of his prognosis well established Challenge than structured treatment Teen that he more required deeper Moreover, extensive defendant’s the prosecutor argued, could provide. disposition. a more history criminal punitive noted, favor, the remorse the in In court defendant’s weighing its options, of involved the small relatively drugs his quantity indicated guilty plea, rehabilitation, the age efforts recent the current defendant’s charges, observed, the hand, the other the court “strike” convictions. On of prior life to a maximum “as filed” a “third strike” matter with exposure case had recent addition, the a more sentence. court emphasized, offenses, their affects on record of theft and with attendant drug numerous of his “voracious” feeding that were committed for society, purpose treatment, need for multi-drug long-term addiction. Defendant’s The residential would exceed limited duration of a program. opined, factors, court, in favor of a state weighed prison said thus competing term, “though lengthy not a one.” dismiss one of the prior the court exercised its discretion to
Accordingly, “strikes,” and on the two three-year posses- concurrent sentences impose sen- terms, to reflect defendant’s sion-for-sale convictions. These doubled offender, maximum status a “two strike” indicated tencing produced as six entered accordingly.4 sentence of years. Judgment notice, same form The defendant noticed an On standard day, appeal. or indicating a box was checked that the followed However, notice neither included a nolo contendere.
certificate nor indicated a noncertificate ground appeal. filed The court clerk the record on it was superior prepared the Court of After the time for had jurisdictional passed, Appeal. the notice of defendant’s counsel moved amend motion, The Appeal granted with rule Court comply 31(d). a noncertificate “sentencing” ground notice was amended to include merits, his brief arguing Defendant filed subsequently appeal. discretion, inadequate court had abused its and had provided reasons, narcotic when refused to initiate civil addict proceed- statement had brief that no abuse discretion ings. People’s responsive urged occurred. 1202.4, (b)), $200 mandatory (§ (a)(3)(A), 4The court ordered a restitution fine subds. *7 $50 (§ 1202.45). fine A imposed, stayed, equivalent parole an revocation
and also 11372.5, Code, analysis (Health & subd. laboratory assessed each offense. Saf. fee was for § days custody credit. presentence Defendant awarded 336 of (a).) At oral motion, the Court of argument, acting its own re- Appeal, on whether quested supplemental briefing defendant a certificate of cause to probable raise these After sentencing issues. receiving supplemental briefs, the decision, Court of a two-to-one dismissed the Appeal, of essence, for lack a certificate. ruled that when a defendant majority a maximum negotiates sentence return for plea, any imposed Hence, within maximum reasoned, satisfies an bargain. majority to the sentence appellate challenge in such is an imposed circumstances itself, attack on the and thus of plea a certificate requires majority rejected contrary reasoning Cole, supra, cause. The 850. The dissenting embraced Cole. The opinion dissent reasoned that a when plea agreement sets a maximum trial but reserves court discretion to determine whether the maximum should be a to the imposed, exercise of the discretion reserved does not seek vitiate and thus no certificate. plea, requires granted
We review. now reverse We the Court Appeal’s judgment.
Discussion Section 1237.5 in relevant taken provides part shall be “[n]o the defendant from of conviction nolo judgment or plea guilty contendere . . . where both of the except following are met: The (a) ft[] has statement, filed with the trial court a written under executed oath or penalty constitutional, of perjury showing reasonable jurisdictional, or other grounds trial going legality proceedings, (b) [f] has executed and filed a certificate of cause for such appeal the clerk of with the court.” this broad we
Despite language, have held two of issues types be raised on or for may appeal following guilty nolo without the need seizure, certificate: issues to the relating of a search and 1538.5, under section provided subdivision issues (m), and held for the deter regarding proceedings subsequent purpose of the crime and the to be mining degree penalty imposed. (Panizzon, 74-75; 13 Cal.4th v. Jones P.2d 910], and cases cited.) both the 31(d) Rule section 1237.5 and implements requirement The first of rule that within exceptions. paragraph days 31(d) provides file, on a after entered or nolo the defendant judgment shall *8 by grounds the statement of required notice of appeal, as an intended the “shall not be 1237.5, operative” of section (a) appeal subdivision a filed, is the trial court executes unless, after the statement within 20 days 31(d) of rule cause.5 But the second paragraph of certificate probable section 1237.5 shall certificate required by that the statement and provides occurring solely grounds (1) if the is “based upon not be necessary appeal a involving or challenge validity which do not its entry after plea to section seizure, was contested validity pursuant or the of which search . .” added.)6 1538.5 . . (Italics is to a of cause probable
“The certificate purpose requiring convic challenging out frivolous or vexatious discourage appeals weed The objective tions nolo contendere following guilty pleas. [Citations.] wholly out frivolous guilty is to promote judicial economy ‘by screening time is money spent nolo before plea appeals preparing [and contendere] the court.’ reviewing the record and the briefs for consideration by [Citations.] to the of a
“It has been established that issues long going Thus, with section 1237.5. for example, plea require compliance [Citation.] a a certificate must be obtained defendant claims that a plea when the nature or that induced of fundamental misrepresentations [citation] mentally a time when the defendant incompetent was entered at plea a defendant claims that a certificate is when Similarly, required [citation]. the effect of a on the were warnings regarding guilty plea appeal inadequate. (Panizzon, supra, 75-76.) [Citation.]” “In to a of a sen- challenge whether section 1237.5 determining applies contest, of no courts tence after a or must look imposed plea guilty of ‘the is the defendant challeng- substance crucial issue what is appeal: not the manner in is made.’ challenge {People time or ing, judgment is 31(d) provides pertinent part: first rule “If of conviction paragraph 5The of contendere, shall, plea days within after the upon entered of or nolo defendant rendered, appeal by section judgment is file as an intended notice of the statement ; files the operative . . but shall not the trial court executes and appeal 1237.5 . be unless days files probable required by after the defendant certificate of cause that section. Within of cause or an shall execute and file either a certificate the statement trial court denying notify granting or denial parties a certificate and shall forthwith order certificate.” “If from a pertinent part: rule paragraph 31(d) provides 6The second solely upon upon guilty or nolo contendere based judgment of conviction entered entry validity or grounds (1) occurring which does not after seizure, 1538.5 involving pursuant to section a search of which was contested or , by the and a provisions requiring . . . a statement . . . of section 1237.5 be are but the shall not inapplicable, trial court certificate grounds.” unless the that it is based such operative notice states *9 Ribero 55, 4 (1971) Cal.3d 63 Hence, 480 P.2d Cal.Rptr. 308].) [92 challenge critical is whether inquiry a to the sentence is in substance a to the challenge of the validity plea, thus rendering appeal subject to the requirements of section 1237.5. v. (People McNight 620, Cal.Rptr. [(McNight)].)” (Panizzon, 13 Cal.4th supra, Panizzon,
In a defendant no pled contest to serious multiple felonies in return for a sentence specified of life with the possibility of parole, plus He years. received sentence, that exact but then sought without obtaining a certifícate cause, of probable that the grounds negotiated sentence constituted cruel and unusual punishment. We concluded a certifi- cate was As necessary. we explained, “[although defendant not to purports contest the of the validity negotiated but rather plea,” a sentence imposed after the “he plea, is in fact challenging sentence very to which he agreed as part Since the plea. attacks an challenge integral part plea, is, substance, in plea, requires with . compliance . . section 1237.5 and rule 31(d).” (Panizzon, supra, 73.)7 Panizzon relied on the heavily reasoning of McNight, supra, There, Cal.App.3d 620. in return for the defendant’s plea, prosecutor agreed to recommend a specified sentence of 21 After the years. trial court imposed recommended defendant He appealed. urged counsel raised, should have and the trial court considered, should have mitigating circumstances a more favoring lenient sentence. The Court of Appeal ruled that this claim required a certificate of probable cause. As the indicated, “appellant received the sentence exactly in the promised agreement. His contention that consideration of mitigating circumstances should have resulted in imposition of a sentence less than the agreed-upon 21 years goes to the heart of the plea agreement itself.” (Id., p. 624.) Hence, in substance, it was an attack on the for which a certificate was required.8 Hester,
In
22 Cal.4th
Panizzon,
case decided after
we
addressed the analogous
question
sentencing issues waived on
appeal by
Panizzon,
7In
the Court of
had cited
Sumstine
The defendant urging appealed, of double section 654’s punishment assault sentence pursuant prohibition conceded, criminal rule act or omission. As the defendant for a single counsel, to that by agreeing, 412(b) specifically provided personally one sentence, a that sentence or shorter defendant who received specified section that of the sentence violated any abandoned claim any component however, because it that rule was invalid 412(b) 654. The defendant argued, 654. conflicted with section to the defend-
A
of this court concluded that rule
majority
412(b) applied
case,
codified
simply
ant’s
and was not invalid. As we
rule
explained,
412(b)
i.e.,
cases,
that
California
recognized by
one
of a
application
principle long
even if
unauthorized sentences
be
may generally
challenged
while
below,
no
the defendants have
“[wjhere
pleaded
there were
objections
find error even
in return for a
courts will not
specified
that
reaching
figure,
the trial court acted in excess of
though
jurisdiction
rationale
the trial
did not lack
The
long
jurisdiction.
so
fundamental
the benefit of their
behind this
is that defendants who have received
policy
to better
should not be allowed to trifle with the courts
bargain
by attempting
bargain through
(Hester, supra,
appellate process. [Citations.]”
words,
indicated,
merely
In other
Hester
rule 412(b)
295.)
rule that “defendants are
from
long-standing
estopped
complain-
applied
of sentences to which
ing
they agreed.” (Hester, supra,
p. 295.)
hand,
the terms of the plea
On the other
we have made clear that where
claims
by litigation, appellate
leave issues
for resolution
open
of that
do not attack
litigation
within the
arising
scope
cause. In
a certificate of probable
and thus do not require
itself,
and section 1237.5
sentencing proceedings probably
part
would not be
“the
620, 625,
4.)
fn.
might
(McNight, supra, 171
requirements
apply.
not
[Citations.]”
Hester,
January
2001.
renumbered rule 4.412 effective
9Rule
numbering. We retain that
February
prior
used the
which was decided in
numbering
purposes
for
of our discussion of Hester.
Ward
these trial court but he filed no cause certifi- proceedings, timely probable basis, cate. On Court of dismissed the but we reversed. held We certificate does not when the requirement apply defendant “is not to vacate the seeking that errors plea,” only “assertfs] occurred in the . . . conducted the trial court adversary hearings of the crime and the to be purpose determining degree penalty 66 Cal.2d imposed.” (Ward, supra, *11 224, v. Cal.4th Lloyd (1998) 17 People contest, the defendant a (Lloyd), no without pled bargain, charges
and enhancements that rendered him
treatment
as a “third strike”
eligible
offender. The court
to await
postponed sentencing
appellate guidance—
Romero,
from our
in
presumably
decision
The defendant noticed an The notice the stated was from appeal. appeal “sentence,” the and it also included handwritten notation to “Rule 31(d).” No cause certificate filed. the While we appeal pending, Romero, decided 13 Cal.4th courts do supra, concluding sentencing have discretion to dismiss “strikes” in the interest of After the justice. brief, defendant filed his the moved to dismiss opening successfully the for lack of a certificate. appeal
We reversed. We found that the notice of indicated sufficiently appeal noncertificate for the and thus made the grounds appeal initially under rule We further concluded that dismissal of “operative” 31(d). for lack of a certificate was error. We that the did explained not attack to assert Romero error validity simply sought Panizzon, Citing in that occurred after sentencing proceedings plea. 13 Cal.4th affirmed that an conviction on a following we supra, “if, in absent a certificate must be dismissed or no-contest plea substance, of the plea. (People it challenges bargain. (Id. the sentence was of a part plea at It does so if 13 Cal.4th p. 76.) if the claim or so It not if it was not at (id. p. 78)—especially at does 79.) p. agreement’ (id. p. ‘reserved as of the plea claims in were question part Cal.4th fn. 8).” (Lloyd, supra, term which case, that a argues negotiated plea
In this sentence, neces than a for a maximum rather specified provides here, as occurred further adversary proceedings, sarily contemplates its discretion to determine appropriate the court must exercise reasons, Hence, he claims of the bargain. sentence within constraints “ as discretion were ‘reserved part based on abuses of this ” 665; Panizzon, Cal.4th agreement’ (Lloyd, supra, substance, 68, 78, constitute, in no attack upon fn. 8) that would cause certificate. itself require probable contrary argument The instant Court of Appeal accepted People’s issues, to a an the defendant’s agreement absent reservation express sentence within the maxi- any maximum sentence includes his reasoned, Hence, any mum. the Court of Appeal cause, maximum a certificate of negotiated requires below “the sentence to which very because attack on [the defendant] thus, plea” (Panizzon, supra, 73), part substance, plea. *12 The to a
We find defendant’s more argument persuasive. parties choose, and the exact bargain they are free to make lawful agreement any substance, an a is make affects whether bargain they subsequent appeal, maximum negotiate attack on the When validity plea. parties sentence, different than if had bar- they mean they obviously something to a only recommended sentence. By agreeing or gained specific themselves maximum leave unresolved between parties left to the the maximum. That issue is sentence within appropriate court, of the trial to be exercised in a separate normal discretion sentencing proceeding. of its discretion is
In a trial court’s exercise general, on the record. on where the issue was properly preserved reviewable 627, 885 Cal.4th 353 v. Scott 9 (E.g., People (1994) is not made standardless P.2d This exercise discretion (Scott).) range by its exercise is confined to specified unreviewable because simply of appeal. that included no waiver express the terms of a plea bargain 786 circumstance,
such a when the claim on is that the trial court appeal merely exercise, is, abused the it discretion intended there in sub parties stance, no attack on a was “part plea bargain.” (Lloyd, [the] Instead, Cal.4th one supra, is contem appellate reserved, itself. plated, by Cole, on and its is supra, Cal.App.4th directly point, reasoning Cole, car, Defendant convincing. a stolen led on a driving police high-speed chase and caused an accident. He to three injury arising felonies pled incident, return, from the and he admitted two “strikes.” In the court prior indicated, concurrence, with that it would a maxi- prosecutor’s impose mum sentence life and would decide whether to dismiss one or years more “strikes” so as to a lesser term. At a later permit sentencing hearing, “strikes,” the court considered Cole’s written motion to dismiss as well The probation report arguments. counsel’s court declined to dismiss count, “strikes” and sentenced Cole to a term of 25 life on each years terms to be served concurrently.
Cole’s notice of claimed reliance issues under rule only postplea He obtained no certificate of cause. His briefs 31(d). his induced argued court’s (1) misleading promise “strikes,” consider his sentence constituted cruel and dismissing unusual the court’s refusal to one of punishment, (3) dismiss “strikes” was prior discretion, an abuse of the court’s failure to two of the three stay sentences violated section 654. Court ruled that issue withdrawal of the (1), seeking plea, obvious attack on and thus
certificate. it found a similar Applying supra, certificate for issue the cruel and unusual claim. requirement (2), punishment Hester, further found that issue Applying (4), error under section was barred rule asserting 4.412(b). (Cole, supra, 850, 854, 867-869, We no occasion here to 872-873.)10 have Cal.App.4th issues, consider the of Cole's on these and we do not do so. rulings Cole, Our concern is with issue On this (3). point, *13 850, that, cause, concluded a certificate of obtaining without defendant could attack on the court’s failure to dismiss sentencing appeal the “strike.” prior Ward, 571,
After 66 Cal.2d such cases as reviewing supra, McNight, 620, Panizzon, and Lloyd, Cal.4th supra, supra, 4.412, 1, 2001, January formerly 10Rule renumbered as such effective numbered rule Hester, supra, February in discussed the rule as 412. In decided we previously (See 9.) numbered. fn. reasoned that “when the of whether question the court supra, at an maximum is left to the court’s discretion the impose negotiated that discre- the court’s exercise of challenging adversary hearing, substance, Panizzon not, in an attack on the As plea. tion is Ward, when ‘a the rationale of section 1237.5 applies observed in construing the need not meet adversary hearing unnecessary prosecution separate determine the to be penalty the traditional burden of in order to proof proper Panizzon, 13 Cal.4th [68,] 79.) By implication imposed.’ (People supra, Ward, in where by holding adversary proceed- from express the are held on the the rationale for ings punishment, limiting question (Cole, under section 1237.5 does not right apply.” Cal.App.4th Here, Cole,
We as in could have agree. parties negotiated Instead, their bargain did not do so. specified they provided that defendant not be vulnerable to a sentence above the limit. agreed would It thus left choices within limit. open variety sentencing sentencing The record makes clear that bargain contemplated separate choice, in the agreed within proceedings appropriate sentencing term, maximum from would stem adversarial debate between parties the exercise of discretion the trial court. At the time of the sentencing by the court indicated it would consider a below the maximum. disposition maximum, While the court it did so after ultimately imposed agreed only a noticed in which both sides their views of sentencing hearing argued The court considered the appropriate disposition. preplea sentencing report stated on the record its carefully reasons for its chosen disposition. Indeed, motion, until the Court of its raised issue on own were a that the People—who party bargain—never suggested agree- ment foreclosed defendant’s either in the trial court or on right, debate the exercise of discretion maxi- proper within term. mum
Defendant agreement, thus seeks to raise issues reserved only and as to which he not Accordingly, did waive expressly appeal. not, substance, It follows his does attack the plea. that no certificate of cause is required. Stewart,
To the extent reached a contrary us, reasoning. result on the issue before are not convinced narrow we Stewart, the defendant to two counts of molestation involving pled guilty return, dismissed, children; six other counts were and was wife’s *14 788 ” “ that he would ‘serve a 6 lid with the year possibility probation.’
(Id. the court indicated it would consider As p. 1213.) part bargain, the section 288.1 ....’” only report positive probation, [was] ‘“[i]f 11 he this condi italics The defendant indicated understood (Ibid., omitted.) tion. and the 288.1 were unfavorable.
Both the section probation report report indicated that the defendant was and not amenable to dangerous latter At the the defendant sentencing hearing, argued probation, treatment. to follow the officer’s while the court prosecutor urged probation recommendation of a term. found Noting dangerousness by prison limit by section 288.1 and set report, expressly adhering a sentence. six-year bargain, imposed certificate, a the defendant Without obtaining appealed, section that the court had erred on the and by relying probation urging (1) to state reasons for failing denying 288.1 and reports, (2) adequate probation term. The defendant also claimed the court’s imposing six-year refusal to was an abuse of discretion. grant probation It as follows: The
The Court of dismissed reasoned appeal. defendant’s to consideration of the was waived probation report Scott, timely objection. (Citing his failure make specific His claim that the court should not have 352-353.) his similarly express relied on the section 288.1 report precluded at the time he entered his acceptance, sentencing significance this The court was not to state reasons for denying probation report. term, his his agreement because included six-year imposing that length. the trial court had to sentence him to a term of at least power rule v. Villanueva (Citing 4.412(a) that his the defendant could not Cal.Rptr. 688].) Finally, argue [281 “ discretion—i.e., that it bounds sentence was an abuse of ‘exceeded] ” reason’ under the circumstances (Stewart, supra, v. Giminez 14 Cal.3d Cal.Rptr. quoting People to six to be vulnerable to a term of up 65])—because sentence of that length] was “tantamount to a years stipulation [a lascivious conduct provides person that a convicted of lewd and Section 288.1 report may suspended her “until the court obtains child under 14 not have his or , recognized or from a reputable psychologist from a . . . reputable psychiatrist, from a person.” condition of that program treatment . . . as to the mental
789 had committed.” for the crimes within the of reasonableness range [he] supra, (Stewart, p. 1215.)12 Cole, on the
Stewart 88 distinguish Cal.App.4th purported differences, the section in including, particular, basis of factual perceived Stewart. But the fundamental 288.1 that was central to the bargain report and, indicated, we conclude of the two cases is reasoning incompatible, that Cole's is the sounder one. analysis matter, an argument
As a a defendant succeed with may rarely practical an agreed that it was or unreasonable to a sentence within arbitrary impose However, maximum. are not that a for a maximum bargain we persuaded kind, necessarily any sentence constitutes without acceptance, complaint indicated, decision within the maximum. As we have any sentencing when the to a to that sentence specified parties agree any challenge term, However, attacks a itself. by negoti- thus validity, a maximum term, discretion the ating only leave parties judicial proper choice within the limit. itself agreed agreement Unless speci- otherwise, fies discretion are there- issues to this reserved relating fore outside and cannot constitute an attack its plea bargain validity.13
Stewart, found for its Cal.App.4th support holding People Young Young v. Cal.Rptr.2d 916], [91 only holding 12Weconsider here the Stewart court’s that one attacks the certificate, requires probable by urging thus on that a sentence within an agreed maximum approve disapprove abuse discretion. We neither nor Stewart’s reasoning that, any on the other presented. issues there We do note aside from other flaws in reasoning, by dismissing appears Stewart court to have committed a technical error entirety. appellate objections defendant Stewart’s in its was to the One of Stewart’s trial probation report. Appeal court’s adverse use of the officer’s The Court of did not find plea agreement, require this claim to be an attack on a term of the would a certificate Instead, appeal “operative” (Rule 31(d)). cause to make the the Court of argument by simply object ground concluded that the had been waived on that failure during sentencing hearing by object may rejected below. A claim waived failure to be reason, the merits for that but is not a for failure to obtain a basis dismissal of certificate. premise agreement stipulation 13Forits to a to the reasonable maximum sentence is maximum, any ness of Tucker within the Stewart cited Cal.Rptr. principle reject, on its Tucker invoked this 671]. merits, a claim failing imposing that the trial court had erred to state reasons for maximum, itself, presented rather than a lesser term—an also both in Stewart issue however, bargain in the instant sentence does explained, case. As we have for maximum bargain— appellate litigation concerning not foreclose trial and the issue reserved such a bargain. judicial sentencing the exercise of the limits of the Insofar as discretion within issues, suggests pro Tucker that a forecloses such and thus maximum-sentence necessary to raise them on support vides for the notion that a certificate of cause is Tucker, Stewart, disapproved. like should be in a crucial Defendant a “third strike” Young, is distinguishable respect. *16 offenses, no contest to all and charges offender with charged multiple pled in of 25 to life and years “strike” return for maximum sentence allegations the to the trial to one or more “strikes.” After the trial ask dismiss term, court declined this the maximum request imposed negotiated certificate, on that grounds tried to without cause Young appeal, probable unusual, cruel and and thus The Court of sentence was unconstitutional. it need address would need a certificate in Young noted not whether Appeal order attack the trial court’s refusal to dismiss “strikes.” discretionary However, of on 13 Cal.4th the Court relying directly supra, concluded that could not raise constitutional issue without Young that the maximum a certificate. The court reasoned that Young “[b]y arguing unconstitutional, is of his sentence is arguing part [the defendant] is thus bargain attacking validity plea.” (Young, illegal italics supra, added.) p. not in a certificate of cause is
We need decide this case whether probable under the circumstances v. necessary particular presented People Young, that the 827. Defendant here does not maximum supra, Cal.App.4th argue in his was invalid because exceeded provided plea bargain sentence for He seeks to imple- authorized his convictions. legally simply ment challenges the full terms of the bargain by raising appellate maximum agreed exercise of individualized discretion within sentencing so, conclude, that were reserved itself. we he need doing not obtain a certificate of cause. are intended to weed out frivolous
Section 1237.5 and rule 31(d) contest, or no before clerical and and vexatious from appeals pleas 68, 75-76; resources are wasted. Cal.4th judicial (Panizzon, supra, People v. Hoffard has And it is true that certificate
896].) application requirement difficult, confusing, line-drawing. (Lloyd, involved and sometimes supra, Brown, and rule do 667-669 But the statute (dis. opn. J.).) the certificate the dubious merit of a directly not base requirement law, Instead, case an individual they require under our postplea appeal. substance, constitutes, in whether the claim at issue analysis appellate attack on the plea. that, test, conclude absent contrary provisions this we
Applying itself, is not a certificate of plea agreement discretion within an sentencing the exercise of individualized nature, Such an agreement, by contemplates maximum sentence. sentences will choose from among range permissible that the court this author maximum, discretionary sentencing abuses within be. Accordingly, otherwise they be would will reviewable ity do not an attack on claims constitute such Stewart, v. 89 is necessary. People for which certificate Tucker, 295, are disapproved with conclusions. the extent conflict these they that a Here, was mistaken to conclude the Court of Appeal majority an abuse of discretion within necessary certificate was assert thus erred It agreement. the maximum term established by parties’ plea *17 of a defendant’s for lack certificate. by dismissing appeal
Conclusion reversed, and
The Court is of Appeal’s judgment, dismissing for views the cause is remanded further consistent with the proceedings in this expressed opinion. J., J., Kennard, J., J., Chin, J., Moreno, and
George, C. Werdegar, concurred.
BAXTER, course, J., of and result Concurring. I agree, reasoning with law existing which I authored. Under and majority opinion, practice, believe, case, and on facts of this is correct. I do majority’s holding however, that the current “certificate of cause” for discour- system Code, 1237.5;1 from baseless Cal. aging appeals negotiated pleas (Pen. § Court, Rules of not is a (rule rule is well. The result 31(d) 31(d)) working resources already substantial burden on time and of our overextended concern, This be a cause system. should for is always especially now, serious when the state faces fiscal difficulties. I write unprecedented to offer some separately suggestions improvement. outset,
At the and most to fundamentally, plea agreement parties should, if and resolve the issue possible, expressly appealability. negotiate Buttram take his may A reason we conclude here prime why certificate, it on that the Court of must address without appeal merits, the trial that Buttram’s silent on the appealability is plea court’s choice. it is that a a waiver of the may right
Yet settled include bargain well v. Panizzon Cal.4th 68 to For appeal. example, P.2d the defendant’s written (Panizzon), statutory 1A11further unlabeled references are to Penal Code. “
agreement included a sentence specific and also and [gave] up ‘waive[d] ” to right from the appeal (Id. receive . . . at [his] [he] [would] held p. 82.) We that this waiver enforceable, was valid and and that the defendant had forfeited his thereby right agreed sentence on grounds that it constituted cruel and unusual punishment. (Id. pp. 79-84.)
As we indicated in “The negotiated plea agreement, results in the waiver of constitutional important rights, ‘is an accepted integral our criminal part justice system.’ Such agreements [Citations.] benefit the system by promoting speed, economy finality judgments. . . . Just as a defendant may waive constitu affirmatively [Citation.] [1] tional trial, to a rights jury witnesses, confront and cross-examine self-incrimination, privilege against and to counsel as a of a consequence negotiated so also plea agreement, a defendant waive the may right part agreement. enforceable, To be a defendant’s [Citations.] [If] waiver of the must be knowing, intelligent, voluntary. Waivers bemay manifested either or in orally writing. [Citations.] [Cita The voluntariness of the waiver is a question law which appellate tion.] courts de 68, 79-80, review novo. (Panizzon, [Citation.]” *18 fn. omitted.)2
To encourage resolution of specific this issue in plea agreements does not disfavor defendants. Relative case, bargaining strengths from case to vary and must parties assess what always and benefits are rights to they willing forfeit in case, return for others. one make prosecution might signifi- cant concessions in another, return for an waiver. In be in appeal no may to insist such position another, conditions. In still the defendant bemay able to win the course, to express right appeal. Of the parties may decide to leave the silent on the I subject. suggest only appealability should be a discussion, specific topic and that the intent parties’ on that issue should be reflected in the agreement wherever the are to parties able (cid:127) resolve it expressly.
If Buttram’s bargain had included an
waiver of
a number
express
would flow.
consequences
2The
generally agree
bargain
federal courts
may
that a
include waiver of the
to
appeal. Some federal
specific
tribunals “have delineated
in
waiver-of-appeal
instances
provisions may
(U.S.
557,
be
(3d
2001)
found invalid”
v. Khattak
562),
Cir.
273 F.3d
but as
2001,
all 11 numbered federal circuits had
appeal generally permissible
“found waivers of
stated,
and
(Id.
pp. 560-561.)
enforceable.
at
Supreme
“As the
Court
‘A
has
[Citations.]”
may knowingly
voluntarily
criminal defendant
many
and
waive
of the most fundamental
protections
by
Mezzanatto,
196, 201,
afforded
the Constitution.’ United
States
513 U.S.
115
797,
States,
936,
(1995);
923,
S.Ct.
793 the waiver would First, notwithstanding to the sentence appeal an attempt term, validity, and on the attack thus be an on an necessarily express Cal.4th A plea. (See certificate of in and be to make necessary appeal “operative,” cause therefore would be put court clerk not certificate, would the absence of a superior v. Jones time on appeal. record (See expense preparing If P.2d (Jones).) [43 transmitted, the Court of were nonetheless record prepared certificate, of a without having for lack could still dismiss its merits. address waiver enforceability (for An attempt itself intelligent, not or knowing, voluntary, on it was grounds
example, had ineffective would not succeed by been induced counsel’s assistance) because, This is however circumventing impor- requirement. certificate be, manifestly tant meritorious such a it too would challenge might attack on the thus a certificate validity, any constitute an plea’s requiring event. 1237.5 no undue hardship
Such strict section works application “[a] meritorious appeals. showing required defendants with potentially Rather, the trial a certificate is not stringent. obtain test applied or whether it ‘whether is frivolous and vexatious clearly simply an honest difference of v. Ribero Cal.3d (People involves opinion.’ Moreover, a defendant 308].) fn. who Cal.Rptr. 1237.5, files a statement of section grounds sworn appealable certificate, issue a has fails to trial court to persuade for a filing [seeking writ of mandate review remedy timely petition *19 679, of the to issue the re Brown 9 Cal.3d 683 (In (1973) certificate]. refusal 801, 511 P.2d v. Castelan 32 1153]; People (1995) Cal.Rptr. [108 1185, 574]; 1188 v. 39 Nigro (1974) Cal.App.4th Cal.Rptr.2d People [38 Thus, 506, 511 if he with section 213].) complies Cal.App.3d Cal.Rptr. [114 1237.5, (People a defendant has to v. opportunity perfect appeal.” ample 860, 850, Cole fn. 3 More 174].) 88 (2001) Cal.Rptr.2d [106 fails, over, all else kinds attack remain available if most fundamental of on habeas corpus. certificate,
Second, if the defendant obtained a and appeal even 1102, 10 1108), express made Cal.4th operative (Jones, supra, thereby to decline to address the would permit appellate waiver appeal review, merits, on the that after de novo found assuming defendant’s claim intelligent supra, and knowing, voluntary, (see waiver Thus, agree- waivers in appeal Cal.4th inclusion of 80). express intent, actual has the to ments, potential reflect the they parties’ when minimize cost, the time and both for the themselves and for trial parties courts, unwarranted processing For postplea appeals. this rea- son, it seems to entirely appropriate encourage address that parties issue in their plea negotiations.
I have concern particular about need to save resources by foreclosing truly unwarranted at the postplea appeals earliest possible stage process Aing. principal purpose statute, 1237.5, certificate postplea section “to promote judicial economy ‘by out screening wholly frivolous guilty [and nolo plea appeals before time and money spent preparing contendere] [are] the record and the for consideration court.’ reviewing v. (People briefs P.2d Cal.Rptr.2d 896]; [43 Hoffard see v. Ballard People 987-988 Cal.Rptr. 323].)” (Panizzon, 75-76, italics added.)
But current under rule practice sometimes frustrates 31(d) goal, changes be may justified. rule’s second allows a paragraph postplea appeal without a statement of proceed reasonable grounds for a certificate of cause if the notice of states that it is based i.e., so-called noncertificate grounds, those after “(1) occurring entry which do not or a search and (2) involving seizure, the of which was contested pursuant to section 1538.5 of the Penal Code.” (Italics added.)
Many courts have superior standard developed postplea notice-of-appeal forms that allow appealing defendants to check postplea simply boxes these two reflecting without, noncertificate categories, any explanation or elaboration.3 Court clerks presumably (and on the understandably) rely made representations on these forms when deciding whether have a they ministerial record, duty prepare pursuant rule even 31(d), though of section requirements 1237.5 have not been met. We ourselves may have exacerbated the problem by making issue so “validity plea” complicated (see Lloyd (1998) 17 Cal.4th 667-668 [72 224, 951 P.2d Brown, (dis. opn. J.)), by imposing lenient standards for rule compliance with 31(d) (see Lloyd, pp. 664-665 (maj. opn.) included handwritten notation “Rule [notice *20 word 31(d)”; printed was crossed out and “judgment” with hand- replaced result, written word As a the “sentence”]). system often does not realize that a certificate should have been obtained until well after the record and briefs have been in filed the Court of Appeal. 3Apparently the Judicial Council mandatory developed has no form to be used statewide in
such (See (State) circumstances. West’s Cal. (2003 ed.) (Judicial Rules of Court Div. III Legal List) pp. Council Forms the the and to this but Legislature no solution magic quandary,
I have be to amend section might it. One Council should explore approach Judicial to forms rule to require notice-of-appeal and 31(d), (1) postplea 1237.5 to noncom- state that more to the rule’s own language, conform strictly effective, attorney repre- to that require notices not be and shall plying knowledge the attorney’s such made the best of on forms be sentations difficult, for It would be belief, but under penalty perjury. and nonetheless of an of client had waived part for whose attorney example, “the did not attack to state of that perjury under bargain penalty the certificate obviating requirement.4 of thus plea,” resolve, aat court to also be advisable to may require superior It level, in a a certificate is required rather than a clerical whether judicial to issue the decision whether case. The law mandates that particular hand, other under current be made of that On the certificate court. by judge for he is an appeal if a defendant believes pursuing procedures, postplea he so on a form filed with say a certificate is not need required, only be without ques- court clerk. His will representation accepted the superior be tion, record will appellate will become and operative, have no also a People, party transmitted. prepared exemption in the defendant’s claim of dispute trial court opportunity Indeed, subjected that claim never from certificate requirement. issue the Court of after scrutiny unless the arises in judicial Appeal, record have Addressing exemption and briefs been prepared. time, some in a court would involve extra superior judicial issue proceeding in the run. judicial long drain resources be less might Other I these ideas for consideration appropriate quarters. commend I or more But am certain may be valuable. approaches equally quite screening have in the system postplea appeals, arisen problems be in order. may crafted well carefully practice reforms procedure Chin, J., concurred.
BROWN, J. dissent. I respectfully crafting “into the
Decades court entered business ago, misguidedly this in Penal found requirement certificate exceptions” 658, 667 Code section 1237.5. (People Lloyd (1998) so, Brown, this In doing P.2d (dis. J.).) opn. forgot the purpose broad the statute ignored language who stringent apply should to defendants open equally requirements 4I leave whether attorneys. appeal papers, and file their without the assistance prepare own *21 ‘to requirement—“ promote judicial economy “by screening out wholly frivolous nolo before time and plea appeals money [and contendere] spent record and the preparing briefs for consideration by reviewing ’ ” (Id. court.” at v. p. quoting Panizzon 13 Cal.4th People 75-76 Five I warned 1061].) years ago, my [51 colleagues our continued of these expansion further eviscer- exceptions ates the behind purpose the requirement and creates “a prescription But, at unnecessary litigation.” like (Lloyd, p. prophecies Cassandra, my were warnings ignored.
We now have another to “halt opportunity v. process.” (People th[is] Lloyd, Brown, (dis. opn. But once J.).) again my Instead, decline to colleagues do so. they hold that “absent contrary itself, in the provisions plea agreement certificate of cause is not challenge exercise of individualized discretion sentencing within an agreed ante, maximum sentence.” at (Maj. opn., p. 790.) this reaching holding, nature, conclude they agreement, by “[s]uch that the contemplates court will choose from among range permissible maximum, sentences within the and that abuses of this discretionary sentenc- ing authority will be reviewable on would they (Id. otherwise be.” at pp. 790-791.)
I disagree. Although defendant who agrees to a maximum sentence contemplates separate proceeding where the trial court exercise its may discretion, he, normal definition, sentencing by sentence agrees any equal to or below that words, has, maximum. In other the defendant by entering into the plea agreement, given up challenge trial court’s exercise of at discretion the sentencing so as the proceeding long Thus, does not exceed the maximum. agreed-upon defendant’s the trial court’s exercise of sentencing discretion is an attack on the validity falls outside our created judicially to the certifi- exceptions cate of probable cause requirement. v.
People McNight (1985) Cal.Rptr. 393]—on which we relied heavily Cal.4th 68— this conclusion. In supports the defendant McNight, pled guilty exchange for the prosecutor’s to dismiss certain and recommend a charges sentence. After specific receiving recommended the defendant appealed, he “was the trial contending prejudiced court’s acceptance the prosecutor’s recommendation and counsel’s failure to argue circumstances.” mitigating The defendant he (McNight, p. 624.) contended did not need a certificate because he sought “only appellate review of the The Court of procedure.” (Ibid.) Appeal disagreed *22 the agree- exactly promised “received sentence because should circumstances mitigating ment. His contention consideration 21 years of a less than agreed-upon have resulted in sentence imposition itself.” to the heart of the plea agreement (Ibid.) goes though agree- conclusion even the plea The Court of reached this court where the trial contemplated sentencing proceeding ment separate court, this According exercise normal discretion. sentencing could from” the defendant’s “not and distinct sentencing proceeding separate Rather, at p. 625.) McNight, supra, guilty plea. (People setting plea “the for sentencing hearing provided performance discussed, The were and the trial terms of agreement. reasoning those terms.” same (Ibid.) acted in accordance with complete a maximum here. Because defendant’s for agreement provided applies and defendant received that maximum (Ibid.) and distinct from his hearing guilty.” “not separate I hold that defendant needed a certificate of Accordingly, would trial individualized sentencing cause to court’s “exercise of ante, at discretion within an maximum.” (Maj. opn., p. course, do
Of if had it would my colleagues adopted my reasoning, even laudatory little to Our has made the remedy problem. prior jurisprudence Penal Code section 1237.5—to goal promote judicial economy—virtually Like must his rock a hill all attain. who impossible Sisyphus push up we doomed to forever construe these in futile eternity, exceptions appear effort to articulate the of the certificate of scope requirement. time this we will will save us from fate. next Perhaps Legislature Perhaps learn our lesson.