People v. Barton
People v. Barton
Opinion of the Court
*1090This case recalls the proverb, "You can't have your cake and eat it too." The question presented: Where a defendant negotiates a plea for a *1091stipulated sentence and waives the right to appeal the sentence, may the defendant take advantage of a favorable sentencing law enacted thereafter (which may otherwise apply retroactively under ordinary circumstances)? We think not. In reaching this conclusion, we part company with our colleagues in Division One of the Fourth District Court of Appeal, who arrived at a different result in *491People v. Wright (2019)
Deanna Twilla Barton (defendant) pleaded guilty to furnishing methamphetamine ( Health & Saf. Code, § 11379, subd. (a) ) and maintaining a place for the sale of a controlled substance (id ., § 11366). (Undesignated statutory references are to the Health and Safety Code.) For enhancement purposes, she admitted two prior convictions under section 11379. As part of her plea agreement, she waived her appeal rights. In return, additional charges were dismissed and she received a stipulated prison sentence of eight years eight months, which included a pair of three-year enhancements for the drug-related priors (see former § 11370.2, subd. (c) ).
Defendant entered her plea on September 25, 2017. She was sentenced on October 23, 2017. In the interim, on October 11, 2017, Governor Brown approved Senate Bill No. 180 (2017-2018 Reg. Sess.) (Senate Bill 180), which went into effect on January 1, 2018. Senate Bill 180 amended former section 11370.2 by eliminating its three-year enhancements for most drug-related prior convictions. The then-pending legislation was not discussed on the record in the proceedings below.
In reliance on the " Estrada rule" (see In re Estrada (1965)
The People argue defendant's claim should be resolved in a habeas proceeding, which would allow for a factual determination regarding "whether the parties' negotiations included an agreement that [her] sentence would remain fixed despite any amendments to the relevant law ...." This argument overlooks the holdings of People v. Panizzon (1996)
The California Supreme Court has distinguished between general and specific waivers of appellate rights. As we will discuss, a general waiver leaves open the possibility that future events may deprive one party of the full benefit of its bargain. The parties can safeguard against such outcomes by inserting specific terms into their agreement. The plea agreement in this case contains the type of language that Panizzon found to constitute a specific waiver of the right to appeal " 'future sentencing error.' " ( Panizzon , supra , 13 Cal.4th at p. 85,
FACTUAL AND PROCEDURAL BACKGROUND
This case arises from events occurring while defendant's son was incarcerated at the Sierra Conservation Center in Tuolumne *492County. Defendant was reportedly "involved in preparing cards laced with methamphetamine and then placing those cards into the US mail to be sent to the [prison]." On February 7, 2015, she was found in possession of methamphetamine and a "meth pipe" while attempting to visit her son. On the same date, law enforcement officers executed a search warrant at her residence and seized "over 240 grams of methamphetamine ... plus a scale."
Defendant was charged with possession of methamphetamine in a prison facility ( Pen. Code, § 4573.6 ; count I), conspiracy to send methamphetamine into a prison via mail (id. , §§ 182, subd. (a)(1), 4573; count II), furnishing methamphetamine in violation of section 11379 (count III), maintaining a place for the sale of methamphetamine in violation of section 11366 (count IV), bringing a controlled substance and associated paraphernalia into a prison facility ( Pen. Code, § 4573 ; count V), and furnishing methamphetamine to a person held in custody (id. , § 4573.9; count VI). In relation to count III and for purposes of former section 11370.2, defendant was alleged to have suffered two prior convictions under section 11379. She was further alleged to have served a prior prison term ( Pen. Code, § 667.5, subd. (b) ).
In exchange for defendant's guilty plea with regard to counts III and IV, plus admission of the prior conviction allegations and a waiver of her appeal rights, the People agreed to dismiss all remaining charges and stipulate to a fixed prison sentence of eight years eight months. Defendant signed and *1093initialed a written waiver stating, in pertinent part, "I understand that I will be waiving my right to appeal and I will not be able to appeal from this Court's sentence based on the plea that I enter into in this matter." She expressed her understanding of the waiver in court by saying "Yes" when told she would receive the stipulated prison term and in response to being asked, "[Do] you understand there won't be any appeal from this conviction[?]"
The parties performed their respective obligations under the plea agreement. The trial court accepted the terms of the agreement and found defendant had knowingly and voluntarily entered her pleas and waived her rights. Accordingly, she was sentenced to the stipulated prison term. The sentence was calculated using the lower term of two years for count III, plus eight months for count IV, and two consecutive three-year enhancements under former section 11370.2, subdivision (c), for her prior section 11379 convictions.
Three weeks after she was sentenced, defendant filed a notice of appeal. By subsequent order of this court, a certificate of probable cause was deemed to have been timely filed. Defendant acknowledges the certificate does not entitle her to appellate review of issues waived by virtue of a plea or the specific terms of a plea agreement. ( People v. Kaanehe (1977)
DISCUSSION
Senate Bill 180 eliminated the enhancement provisions upon which the bulk of defendant's sentence was based. (§ 11370.2, subd. (c); Stats. 2017, ch. 677, § 1.) In her words, the stipulated prison term was lawful when she executed the plea agreement, but it "became unauthorized after the sentencing." Because "there is nothing in the record to suggest that [she] knew of the looming SB 180 issue when she entered into [her] plea," defendant argues she did not knowingly and intelligently waive her right to challenge the legality of her sentence based on future changes in the law. The People advocate *493for a factual investigation into the parties' intentions at the time of the plea, but defendant claims the scope of her waiver is a legal issue. We agree with defendant insofar as her appeal rights have been waived as a matter of law based on certain undisputed facts.
Both parties discuss Doe v. Harris (2013)
"[T]he general rule in California is that a plea agreement is ' "deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy...." ' [Citation.] It follows, also as a general rule, that requiring the parties' compliance with changes in the law made retroactive to them does not violate the terms of the plea agreement, nor does the failure of a plea agreement to reference the possibility the law might change translate into an implied promise the defendant will be unaffected by a change in the statutory consequences attending his or her conviction. To that extent, then, the terms of the plea agreement can be affected by changes in the law." ( Id . at pp. 73-74,158 Cal.Rptr.3d 290 ,302 P.3d 598 .)
The Doe litigant had pleaded guilty to committing lewd and lascivious acts upon a child prior to the enactment of California's "Megan's Law." ( Doe , supra , 57 Cal.4th at p. 66,
There are two important distinctions between Doe and the present case: Doe did not involve a challenge to the legality of a stipulated prison sentence or a waiver of appeal rights. The high court discussed contract principles governing plea agreements in general. Interpretation of the Doe litigant's plea agreement was an issue reserved for the Ninth Circuit, which had sought guidance from our state Supreme Court "to ensure its decision [would be] consistent with California law." ( Doe , supra , 57 Cal.4th at p. 68,
To summarize the key holdings of Doe , parties to a plea agreement "are deemed to know and understand that the state ... may enact laws that will affect the consequences attending the conviction entered upon the plea." ( Doe , supra , 57 Cal.4th at p. 70,
"A defendant may waive the right to appeal as part of a plea bargain where the waiver is knowing, intelligent and voluntary." ( *1095People v. Mumm (2002)
In Panizzon , a defendant pleaded no contest to multiple felonies in return for a specified sentence of life with the possibility of parole, plus 12 years. ( Panizzon , supra , 13 Cal.4th at p. 73,
We perceive no material distinction between the waiver of appeal rights in Panizzon , which was found to be specific as to sentencing error, and the waiver executed by defendant Barton. In Panizzon , the written agreement stated, " 'I hereby waive and give up my right to appeal from the sentence I will receive in this case.' " ( Panizzon , supra , 13 Cal.4th at p. 82,
The trial judge in Panizzon failed to admonish the defendant regarding the waiver of his right to appeal. Nevertheless, the California Supreme Court found a knowing and intelligent relinquishment of that right. The written waiver contained "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."
*1096( Panizzon , supra , 13 Cal.4th at p. 84,
"Absent something in the record raising a doubt defendant understood and knowingly waived his appeal rights, a written waiver of those rights by defendant, coupled with defendant's and his attorney's attestations to the court that defendant understood and voluntarily relinquished each right, is sufficient to establish a defendant's waiver of his right to appeal was knowingly, voluntarily, and intelligently made." ( People v. Cisneros-Ramirez (2018)
During the plea hearing, defendant responded "Yes" when the trial court said, "And you understand there won't be any appeal from this conviction?" Moments later, the trial court explained, "You will get a stipulated term. It's agreed upon. You will get your half-time on this case, and it's eight years, eight months. [¶] Do you understand that?" She again replied, "Yes." Defense counsel thereafter represented that she had been given sufficient time to consult with defendant about the agreement. Counsel responded affirmatively when asked, "Do you concur in the waiver of rights and the entry of the plea?"
For the reasons discussed, we conclude defendant knowingly and intelligently waived the right to challenge the legality of her sentence. Our conclusion is further supported by People v. Hester (2000)
Defendant's opening brief states, "At first blush, the waiver [defendant] signed might look indistinguishable from that at issue in People v. Panizzon ." This seems to foreshadow a discussion of grounds for departing from precedent, but the argument never materializes. Instead, a two-page summary of Panizzon is followed by a citation to Harris v. Superior Court (2016)
The Harris opinion merely reiterates the holding of Doe and applies it in the context of the Safe Neighborhoods and *496Schools Act, also known as Proposition 47, which reduced certain drug-related crimes from felonies to misdemeanors. ( Harris , supra , 1 Cal.5th at pp. 987, 990-993,
Defendant implies her circumstances are distinguishable from those in Panizzon because her sentence was not unauthorized when she executed the plea agreement. She reasons that because "the Estrada claim was not ripe" at the time of sentencing, "her waiver could not have been knowing and intelligent." As we have explained, the Panizzon defendant made a nearly identical argument: He claimed "any error occurring after the entry of his plea constituted 'future sentencing error' that was beyond the scope of the waiver." ( Panizzon , supra , 13 Cal.4th at p. 85,
Lastly, defendant argues we "should follow the decision in Mumm ," referring to People v. Mumm , supra ,
The facts of Mumm are readily distinguishable. First, the plea agreement did not include a stipulated sentence. Second, there was no specific waiver of the right to appeal the sentence. Because the issue of the strike allegation was left open under the terms of the plea agreement, the Mumm defendant's sentence was unknown when he entered his plea and executed a general waiver of his appellate rights.
Here, defendant's plea agreement included a stipulated prison term of eight years eight months. She knew the exact length of her sentence when she waived her right to appeal the sentence. Under those circumstances, "both the length of the sentence and the right to appeal the sentence are issues that cannot fairly be characterized as falling outside of defendant's contemplation and knowledge when the waiver was made." ( Panizzon , supra , 13 Cal.4th at p. 86,
We realize our analysis conflicts with that of our colleagues in Division One of the Fourth District Court of Appeal as reflected in *1099People v. Wright , supra ,
The panel in Wright based its decision on Doe , focusing on the principle "that subsequent statutory enactments or amendments may alter the terms of the plea bargain." ( Wright , supra , 31 Cal.App.5th at p. 755,
As applied to plea bargains in general, the Fourth District's new rule is both reasonable and consistent with Doe . However, as we have discussed, Doe was a civil case involving neither sentencing error nor the enforceability of a waiver of appeal rights. The Doe litigant had argued that mere reference to a statute within a plea agreement implies the defendant will be unaffected by any amendments to the statute, assuming judicial and prosecutorial silence on the issue. The California Supreme *498Court rejected his argument, but in the same discussion it recognized that "the facts and circumstances of a particular plea agreement might give rise to an implicit promise that the defendant will be unaffected by a change in the law." ( Doe , supra , 57 Cal.4th at p. 71,
In our view, the breadth of the Wright holding conflicts with Panizzon . Under Panizzon , a waiver of the right to appeal a stipulated sentence is sufficient to bar a claim of " 'future sentencing error,' " i.e., a claim that events occurring subsequent to the waiver have altered the legality of the sentence. According to Wright , it is no longer enough to specifically waive the right to appeal a stipulated sentence; parties must now expressly identify the type of sentencing error contemplated by the waiver.
*1100Furthermore, Wright dismisses out of hand the possibility of an implied understanding that waiving the right to appeal a stipulated sentence necessarily includes a claim based on subsequent changes in the law. The very purpose of negotiating a waiver of the right to appeal a sentence is to preclude any future claims of sentencing error. ( People v. Becerra (Feb. 11, 2019, H045600)
In summary, the wording of defendant's waiver is materially indistinguishable from the waiver in Panizzon , which was found to encompass challenges to the legality of a stipulated sentence. In other words, defendant executed a specific waiver of her appellate rights. As in Panizzon , defendant contends she did not knowingly and intelligently waive the right to challenge unforeseen sentencing errors arising subsequent to the execution of her plea agreement. We are constrained to reject this argument, as Panizzon holds "the length of the sentence and the right to appeal the sentence are issues that cannot fairly be characterized as falling outside of defendant's contemplation and knowledge when the waiver was made ...." ( Panizzon , supra , 13 Cal.4th at p. 86,
" 'Often the decision to plead guilty is heavily influenced by the defendant's appraisal of the prosecution's case against him [or her] 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 later events *499seem 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 [or her] decision.' [Citation.] This logic applies with equal force to dispel any notion that the subsequent unfolding of unknown or unforeseen events somehow renders a waiver of appellate rights unintelligent or otherwise *1101defective at the time it was given." ( Panizzon , supra , 13 Cal.4th at pp. 86-87,51 Cal.Rptr.2d 851 ,913 P.2d 1061 , quoting Brady v. United States (1970)397 U.S. 742 , 756-757,90 S.Ct. 1463 ,25 L.Ed.2d 747 .)
DISPOSITION
The appeal is dismissed.
WE CONCUR:
LEVY, Acting P.J.
MEEHAN, J.
Eligible defendants obtain relief under Proposition 47 by petitioning the trial court to have their convictions and sentences reduced as authorized by the legislation, not by filing an appeal challenging the legality of their sentence. (Pen. Code, § 1170.18.) Again, neither Doe nor Harris involved a challenge to the legality of a defendant's negotiated sentence or circumstances under which a defendant had executed a specific waiver of appellate rights. The waiver in this case requires dismissal of the appeal regardless of whether Senate Bill 180 applies retroactively to cases not yet final as of the date of its enactment. Questions regarding how Senate Bill 180 might impact negotiated sentences in cases where the defendant's appellate rights have not been waived are beyond the scope of our discussion and we express no opinion about such issues.
Reference
- Full Case Name
- The PEOPLE, and v. Deanna Twilla BARTON, and
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- Published