THE PEOPLE, Plаintiff and Respondent, v. ERIC ALDEN PANIZZON, Defendant and Appellant.
No. S046141
Supreme Court of California
Apr. 18, 1996.
13 Cal. 4th 68
Douglas C. Littlejohn and Dennis A. Fischer, under appointments by the Supreme Court, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Robert Carl Schneider, Marc E. Turchin, Susan D. Martynec and Shawn A. McGahey, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BAXTER, J.—Defendant Eric Panizzon pled no contest to various felony counts pursuant to a plea bargain that specifically provided for the imposi
As we shall explain, the Court of Appeal erred in denying the People‘s request for a dismissal. Although defendant purports not to contest the validity of the negotiated plea, he is in fact challenging the very sentence to which he agreed as part of the plea. Since the challenge attacks an integral part of the plea, it is, in substance, a challenge to the validity of the plea, which requires compliance with the probable cause certificate requirements of
I. BACKGROUND AND PROCEDURAL FACTS
As part of a negotiated plea bargain, defendant agreed to enter a plea of no contest (nolo contendere) to one count of kidnapping for ransom (
Defendant subsequently filed a notice of appeal 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.3 The People responded by requesting dismissal of the appeal on the grounds that defendant failed to obtain a certificate of probable cause (
II. DISCUSSION
In this court, both sides complain of error by the Court of Appeal. The People, on the one hand, contend the court should not have disregarded defendant‘s failure to comply with
As pertinent to this case, the rules governing a criminal defendant‘s right to appeal are set forth in
The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas. (People v. Breckenridge (1992) 5 Cal.App.4th 1096, 1101 [8 Cal.Rptr.2d 1]; see also People v. Manriquez (1993) 18 Cal.App.4th 1167, 1171 [22 Cal.Rptr.2d 779].) The objective is to promote judicial economy “by screening out wholly frivolous guilty [and nolo contendere] plea appeals before time and money is spent
It has long been established that issues going to the validity of a plea require compliance with
In this case, defendant does not purport to challenge the validity of his no contest plea. Nonetheless, he seeks to appeal the constitutionality of the sentence to which he agreed as part of the negotiated plea bargain. Under these circumstances, do the requirements of
The following principles guide our analysis. In determining whether
In McNight, supra, 171 Cal.App.3d 620, the Court of Appeal determined, under circumstances very similar to those here, that a defendant‘s challenge to the imрosition of a negotiated sentence went to the heart of his plea agreement and therefore constituted a challenge to the validity of the plea. There, as part of a negotiated plea, the defendant pled guilty to three counts
The Court of Appeal rejected the defendant‘s argument. Applying the “substance-of-the-appeal” test, the court determined that the defendant was, in effect, claiming he was prejudiced by the trial court‘s acceptance of the prosecutor‘s recommended sentence and by his counsel‘s failure to argue mitigating circumstances. (McNight, supra, 171 Cal.App.3d at p. 624.) In finding that the claim challenged the validity of the guilty plea, the court drew from our decision in People v. Collins (1978) 21 Cal.3d 208, 215 [145 Cal.Rptr. 686, 577 P.2d 1026]: “‘The state, in entering a plea bargain, generally contemplates a certain ultimate result; integral to its bargain is the defendant‘s vulnerability to a term of punishment. . . . When a defendant gains total relief from his vulnerability to sentence, the state is substantially deprivеd of the benefits for which it agreed to enter the bargain. Whether the defendant formally seeks to withdraw his guilty plea or not is immaterial; it is his escape from vulnerability to sentence that fundamentally alters the character of the bargain.‘” (McNight, supra, 171 Cal.App.3d at p. 624.) After noting that the trial court had acted in complete accordance with the terms of the plea agreement at the sentencing hearing, the Court of Appeal held that, under those circumstances, the imposition of sentencing at the post-plea hearing was not so separate and distinct from the defendant‘s plea of guilty as to implicate a post-plea sentencing issue for which a certificate under
Defendant does not address McNight, supra. Nor does he deny that the agreed-upon sentence of life with the possibility of parole, plus 12 years,
While a trial court‘s error in making certain decisions after a plea may give rise to challenges that do not require compliance with
In the proceedings below, the Court of Appeal reached the opposite conclusion. Relying upon People v. Sumstine (1984) 36 Cal.3d 909 [206 Cal.Rptr. 707, 687 P.2d 904] and People v. Knauer (1988) 206 Cal.App.3d 1124 [253 Cal.Rptr. 910], both of which followed the general rule that
In sum, we are persuaded by McNight‘s reasоning that a challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself. Therefore, it was incumbent upon defendant to seek and obtain a probable cause certificate in order to attack the sentence on appeal. (
Yet even if we accept defendant‘s contention that his claim is an attack on the sentence that does not require a certificate, we conclude the appeal must still be dismissed. We proceed to discuss this alternative ground for dismissal of the appeal, accepting for such purpose defendant‘s argument that his claim attacks merely the sentence and not the plea. As we shall demonstrate, defendant is barred from challenging the negotiated sentence on appeal because the terms of the plea bargain prohibit such a challenge.
The negotiated pleа agreement, which results in the waiver of important constitutional rights, “is an accepted and integral part of our
“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, including the state, must abide by the terms of the agreement.” (People v. Walker (1991) 54 Cal.3d 1013, 1024 [1 Cal.Rptr.2d 902, 819 P.2d 861]; see In re Troglin (1975) 51 Cal.App.3d 434, 438 [124 Cal.Rptr. 234] [both the People and the accused should be held to the terms of a plea bargain].) Of course, before taking the plea, the trial court must admonish the defendant of the constitutional rights that are being waived, as well as the direct consequences of the plea. (People v. Walker, supra, 54 Cal.3d at p. 1022.) Just 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. (People v. Vargas, supra, 13 Cal.App.4th at pp. 1658-1660; see People v. Nguyen (1993) 13 Cal.App.4th 114, 116 [16 Cal.Rptr.2d 490]; accord, U.S. v. Rutan (8th Cir. 1992) 956 F.2d 827; U.S. v. Navarro-Botello (9th Cir. 1990) 912 F.2d 318; U.S. v. Wiggins (4th Cir. 1990) 905 F.2d 51.)10
To be enforceable, a defendant‘s waiver of the right to appeal must be knowing, intelligent, and voluntary. (People v. Vargas, supra, 13 Cal.App.4th at p. 1659; People v. Nguyen, supra, 13 Cal.App.4th at p. 119.) Waivers may be manifested either orally or in writing. (People v. Berkowitz (1995) 34 Cal.App.4th 671, 678 [40 Cal.Rptr.2d 150].) The voluntariness of a waiver is a question of law which appellate courts review de novo. (People v. Vargas, supra, 13 Cal.App.4th at p. 1660.)
In examining the particular facts before us, we observe that prior to entering his plea of no contest, defendant read and signed an 11-page document entitled “Waiver of Constitutional Rights and Plea of Guilty or ‘No Contest‘” (the Waiver and Plea agreement). That document reflected, inter alia, the following information and statements initialed by defendant:
“A. CHANGE OF PLEA - CONDITIONS
“Agreement: Defendant to receive 6 yrs. on Ct. 3 and 3 yrs. on Ct. 5, consecutive with
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“B. CONSEQUENCES OF PLEA
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“11. I understand that I am pleading guilty or no contest to an offense and/or admitting special allegation(s) which means by law I CANNOT be placed on probation and that I MUST be sentenced to state prison for the term selected by the judge. [Citations.]
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“F. ENTRY OF PLEA
“1. I have had enough time to talk to my lawyer about the case and have told him/her all the facts and circumstances known to me about the case.
“2. My lawyer has carefully gone over with me this Waiver of Constitutional Rights form. My lawyer has explained the possible sentence which could be imposed as a result of my plea of guilty/no contest. I understand the nature of the charge(s) against me.
“3. I have discussed with my attorney the charge(s), prior conviction(s), enhancement(s), prior prison term(s), and/or serious felony offense(s) alleged against me and any facts and possible defenses.
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“5. I offer my plea of ‘Guilty’ or No Contest freely and voluntarily with a full understanding of all the matters set forth on this form. No one has
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“7. I hereby waive and give up my right to appeal from the sentence I will receive in this case. I also waive and give up my right to appeal the denial of any and all motions made and denied in my case.
“8. I have personally initialed each of the above boxes and discussed them with my attorney. I understand each and every one of the rights outlined above and I hereby WAIVE and GIVE UP each of them in order to enter my plea to the above charge(s).”
Below defendant‘s signature on the Waiver and Plea agreement, the following statement appears along with defense counsel‘s signature:
“I am the attorney of record and I have explained each of the above rights to the defendant. I have explored the facts with him/her and studied his/her possible defenses to the charge(s) and enhancing allegations. I believe there is a factual basis for each of the pleas and admissions set forth above. I concur in his/her decision to waive the above rights and to enter a plea of guilty or no contest. I further stipulate this document may be received by the court as evidence of defendant‘s intelligent waiver of these rights and that it should be filed by the clerk as a permanent record of that waiver. No promises of a particular sentence or sentence recommendation have been made by me or, to my knowledge, by the prosecuting attorney or the court which has not been fully disclosed in this form. I personally went over this document with the defendant. I observed the defendant to read, date and sign this document.”
The document also reflected the People‘s concurrence in the plea, as well as the trial judge‘s signature and his findings that defendant “expressly, knowingly, understandingly, and intelligently waived” his constitutional rights and that defendant‘s plea was “freely and voluntarily made with an understanding of the nature and consequences thereof.”
At a hearing on the change of plea, defendant represented he recognized the Waiver and Plea agreement and affirmed he had had ample time to review it with his attorney. As to the charges to which defendant agreed to
Defendant asserts the above record fails to demonstrate a valid waiver of the right to appeal because he was not properly admonished regarding that right. (People v. Rosso (1994) 30 Cal.App.4th 1001, 1006 [36 Cal.Rptr.2d 218].) This assertion is devoid of merit.
As noted previously, a trial court normally must admonish a defendant of the direct consequences of a plea of guilty or nolo contendere. (People v. Walker, supra, 54 Cal.3d at p. 1022.) However, a court may rely upon a defendant‘s validly executed waiver form as a proper substitute for a personal admonishment. (People v. Castrillon (1991) 227 Cal.App.3d 718, 722 [enforcing, as part of a plea agreement, defendant‘s written waiver of the right to appeal the denial of a motion to suppress pursuant to
Consideration of the foregoing principles leads us to conclude that the record in this case demonstrates an enforceable waiver of defendant‘s right to appeal his sentence. Even though the trial court did not admonish defendant regarding the right to appeal, the Waiver and Plea agreement signed by defendant and his attorney contains defendant‘s representations that he understood the sentence that would be imposed if he pleaded no contest, that he had discussed with his attorney both the paragraph specifying the sentence to be imposed and the paragraph containing the waiver of the right to appeal the sentence, and that he fully understood all matters set forth in the document without exception. The Waiver and Plea agreement also reflects defense counsel‘s representation that he personally went over the document with defendant and concurred in defendant‘s decision to waive the rights specified in the document, as well as counsel‘s stipulation that the trial court could consider the document as evidence of defendant‘s intelligent waiver of such rights. At the court hearing, both defendant and his attorney attested to the document‘s valid execution. Additionally, the in-court questioning of defendant and his attorney raised no doubts as to defendant‘s understanding of his rights and the consequences of his no contest plea. Under these circumstances, we are satisfied that defendant‘s waiver of the right to appeal the bargained sentence was knowing, intelligent, and voluntary despite the absence of a specific admonishment by the trial court. (People v. Castrillon, supra, 227 Cal.App.3d at p. 722; cf. In re Ibarra, supra, 34 Cal.3d at pp. 284-286.)
People v. Rosso, supra, 30 Cal.App.4th 1001, does not support defendant‘s position. In that case, the reviewing court rejected the People‘s claim that the defendant had orally waived his appellate rights as follows: “‘[The Court]: . . . Have you discussed these [constitutional] rights with your attorney? [¶] [Rosso]: Yes. [¶] The Court: Do you understand each and every one of these rights? [¶] [Rosso]: Yes, I understand. [¶] The Court: Do you waive and give up these rights and your right to appeal? [¶] [Rosso]: Yes, I waive them.‘” (30 Cal.App.4th at p. 1006.) As noted in the decision, however, this was the only mention of appellate rights. The record in that case, unlike that here, apparently contained no evidence of a written waiver of appellate rights read and signed by the defendant after discussion with his attorney and no evidence that an attorney had explained the right to appeal to the defendant. Consequently, People v. Rosso, supra, stands in sharp contrast to the instant situation and does not call for a different result.
To support this argument, defendant relies upon two cases finding that a defendant‘s waiver of “possible future error” is outside the defendant‘s contemplation and knowledge at the time the waiver is made. (People v. Sherrick (1993) 19 Cal.App.4th 657, 659 [24 Cal.Rptr.2d 25]; People v. Vargas, supra, 13 Cal.App.4th at p. 1662.) But while these authorities generally support the proposition that a defendant‘s general waiver of the right to appeal,11 given as part of a negotiated plea agreement, will not be construed to bar the appeal of sentencing errors occurring subsequent to the plea, the defendants in those decisions were attempting to appeal sentencing issues that were left unresolved by the particular plea agreements involved. In People v. Sherrick, supra, the defendant was permitted to argue on appeal that the trial court utilized a patently erroneous standard in determining his ineligibility for probation where the plea agreement and waiver of appellate rights evidently contemplated no specific sentence or probation eligibility. Similarly, in People v. Vargas, supra, the defendant was not barred from challenging an alleged misapplication of conduct credits on appeal where the plea agreement and waiver of appellate rights apparently made no mention of conduct credits. In each of those decisions, the appellate court viewed the sentencing issue as not being within the contemplation and knowledge of the defendant at the time the waiver was made and so refused to extend thereto a general waiver of the right to appeal.
That, however, is not the situation here. Not only did the plea agreement in this case specify the sentence to be imposed, but by its very terms the
Defendant‘s characterization of the issue on appeal as an “unforeseen or unknown error” is off the mark because the sentence imposed by the court was neither unforeseen nor unknown at the time defendant executed the Waiver and Plea agreement. Moreover, the essence of defendant‘s claim is that his sentence is disproportionate to his level of culpability (see People v. Dillon (1983) 34 Cal.3d 441 [194 Cal.Rptr. 390, 668 P.2d 697]), a factor that also was known at the time of the plea and waiver. Thus, the real thrust of defendant‘s claim concerns events predating entry of the plea and waiver.
It is true that in People v. Dillon, supra, 34 Cal.3d at p. 488, we looked to the relatively lenient sentences of a defendant‘s coconspirators to underscore our conclusion that the punishment imposed upon the defendant was grossly disproportionate to his individual culpability. But even if defendant here did not know or contemplate the fact that his codefendants would later negotiate and receive sentences more lenient than his, we see no reason to deem his waiver of appellate rights unenforceable.
The reasoning articulated by the United States Supreme Court in upholding the general validity and enforceability of plea agreements is persuasive in putting into proper perspective the claim that a defendant should be relieved of a waiver of appellate rights because of the subsequent occurrence of unforeseen events perceived to be favorable to the defense. “Often the decision to plead guilty is heavily influenced by the defendant‘s appraisal of the prosecution‘s case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. Considerations like these frequently present imponderable questions for which there are no certain answers; judgments may be made that in the light of latеr events seem improvident, although they were perfectly sensible at the time. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision.” (Brady v. United States (1970) 397 U.S. 742, 756-757 [25 L.Ed.2d 747, 90 S.Ct. 1463].) This logic applies with equal force to dispel any notion that the subsequent
Contrary to defendant‘s assertions, nothing in U.S. v. Jacobson (2d Cir. 1994) 15 F.3d 19 compels a different conclusion. In that case, the defendant pled guilty to one count of conspiracy to receive misbranded and adulterated drugs in interstate commerce and to commit wire fraud. Both he and the government agreed not to appeal in the event the court imposed a sentence within a range of eight to fourteen months under the federal sentencing guidelines.12 After receiving a sentence of 12 months, the defendant aрpealed on the ground that the length of sentence, when compared with those subsequently received by his coconspirators, was based on a constitutionally impermissible factor (naturalized status) and therefore constituted a denial of due process. The appeals court held that the defendant did not waive his right to appeal on the aforementioned ground. Although the court recognized that an agreement not to appeal a sentence within the agreed guidelines range is enforceable, it observed that a waiver of the right not to be sentenced on the basis of a constitutionally impermissible factor may be invalid. (15 F.3d at pp. 22-23, citing U.S. v. Marin (4th Cir. 1992) 961 F.2d 493, 496 [“a defendant could not be said to have waived his right to appellate review of a sentence . . . based on a constitutionally impermissible factor such as race“].) Accordingly, the court read the plea agreement at issue narrowly, noting that the defendant‘s appeal raised no guidelines issues. (15 F.3d at p. 23.) Additionally, the court rejected the government‘s argument that the defendant had waived his challenge by failing to raise the issue in the district court. Observing that the coconspirators were all sentenced after him, the court reasoned that an objection based on unconstitutional disparity could not have been made at the time of the defendant‘s sentencing. (Ibid.)
U.S. v. Jacobson, supra, does not, as defendant suggests, undermine the enforceability of his waiver of the right to appeal his negotiated sentence. In this case, the People do not argue that defendant‘s failure to raise the disparity issue at the time of his sentencing constituted an implied waiver of the right to appeal such a matter. Consequently, defendant‘s reliance upon
Finally, invoking the principle that “[a]n appellate court may ‘correct a sentence that is not authorized by law whenever the error comes to the attention of the court‘” (In re Harris (1993) 5 Cal.4th 813, 842 [21 Cal.Rptr.2d 373, 855 P.2d 391]), defendant argues that California decisional law has long recognized the necessity of affording judicial review where, as here, a sentence is challenged as invalid or in excess of the court‘s jurisdiction. We disagree.
Appellate courts have relied upon the principle to which defendant refers in allowing habeas corpus review of a claim or sentencing error amounting to an excess of jurisdiction when a defendant has delayed in raising the issue (e.g., In re Harris, supra, 5 Cal.4th at p. 842) and in holding that an unauthorized sentence is no bar to the imposition of a proper, even if more severe, judgment thereafter (e.g., People v. Serrato (1973) 9 Cal.3d 753, 764-765 [109 Cal.Rptr. 65, 512 P.2d 289], disapproved on other grounds, People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1 [189 Cal.Rptr. 855, 659 P.2d 1144]; People v. Massengale (1970) 10 Cal.App.3d 689, 693 [89 Cаl.Rptr. 237]). These authorities, however, do not support appellate review of a sentence disproportionality claim where, as here, the sentence has been negotiated as part of a plea bargain and is not in excess of the maximum statutory penalty.14 Indeed, considerations of fairness weigh against the availability of review since the absence of a fully developed factual record in a plea bargained case is likely to place the People at a significant disadvantage in meeting such a claim.
III. CONCLUSION
Although defendant maintains he is not contesting the validity of his bargained plea, he seeks to challenge the very sentence he negotiated as part of the plea. Consistent with the reasoning of McNight, supra, 171 Cal.App.3d 620, we conclude that such a claim is, in substance, an attack on the validity of the plea which is not reviewable on appeal because defendant failed to seek and obtain a certificate of probable cause. (See People v. Jones, supra, 10 Cal.4th at p. 1112, fn. 5.) Further, even if it is assumed that defendant‘s claim does not challenge the validity of the plea, the claim still is not reviewable on appeal because the terms of the plea bargain preclude any appeal of the negotiated sentence.
In light of our conclusion that the Court of Appeal should not have disregarded defendant‘s failure to comply with
Lucas, C. J., Kennard, J., George, J., Werdegar, J., and Chin, J., concurred.
MOSK, J.—I dissent.
I cannot conclude that defendant vаlidly waived his right to appeal his sentence on the effective ground that it is disproportionate to his personal responsibility and moral culpability in violation of the cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution, as applied to the states under the due process clause of the Fourteenth Amendment, and the cruel or unusual punishment clause of article I, section 17, of the California Constitution. (See People v. Marshall (1990) 50 Cal.3d 907, 937-938 [269 Cal.Rptr. 269, 790 P.2d 676].) The Court of Appeal rejected this claim on the merits. So would I.
Convicted defendants generally enjoy a right of appeal under state law. (
Second, I question whether certain types of сlaims, including one that the sentence violates certain constitutional norms, may be waived. “For example, a defendant could not be said to have waived his right to appellate review of a sentence imposed in excess of the maximum penalty provided by statute or based on a constitutionally impermissible factor such as race.” (U.S. v. Marin (4th Cir. 1992) 961 F.2d 493, 496.)
Third, I cannot countenance the use of this written form to enter defendant‘s various pleas. In my concurring and dissenting opinion in In re Ibarra (1983) 34 Cal.3d 277, 291 [193 Cal.Rptr. 538, 666 P.2d 980], joined by two other justices, I expressed “grave reservations about the use of waiver forms in a felony context.” Most problematic here, the waiver of the right to appeal is buried at the end of the form, amid a panoply of disparate clauses. Evidently the subject of waiving appeal was of little importance to the form drafter. And although defendant was carefully examined about his understanding of the rights he was waiving, appeal was not mentioned. I am not
I would affirm the Court of Appeal‘s judgment.