People v. Charles

171 Cal. App. 3d 552, 217 Cal. Rptr. 402, 1985 Cal. App. LEXIS 2434

Opinions

Opinion

ANDERSON, J.

*

This is an appeal from a judgment of conviction entered after appellant pled guilty to numerous criminal offenses.

Background

The victim of the crimes was a 70-year-old widow who lived alone in East Oakland, California. The crimes were perpetrated in the late evening hours of May 17, 1981. The victim, lying in bed and ready to sleep, heard the crashing noise of the front door glass breaking. When she got out of the bed to investigate, she was met by two intruders who gained entry into the house by kicking open the door. One of them was appellant, the other Vernell Owens, his codefendant.

Owens, who was wearing brass knuckles, demanded money from the elderly lady. When she answered that all the money she collected had been given to charities, Owens hit her in the head, knocked her on the floor and stepped on her hand and feet.

While Owens searched the house looking for money, appellant dragged the victim to the bed and threatened, “I’m not through yet” and “I have got to have a taste of this white bitch.” He ordered the victim to undress and put up her legs, and then appellant raped her. Thereupon he knifed her in the hand and abdomen, tied her neck, wrists and ankles with a telephone cord he had ripped out of the wall and humiliated her further by breaking eggs over her face. Before leaving the home, appellant set a bunch of newspapers on fire and threw them on the victim’s bed where she still lay nude and tied. After her assailants left, the victim struggled to loosen her bonds and miraculously escaped from her blazing home, running naked up to the street to her neighbor’s home. Before being taken to the hospital, she described her ordeal to the police and detailed her losses—jewelry and coins stolen from her home. While her home was significantly damaged by fire, the victim lay in the hospital for almost two weeks nursing burn and stab wounds.

Appellant was charged with attempted murder (Pen. Code¹ §§ 187/664, count I); first degree burglary (§ 459, count II); rape (§§ 261 and 264.1, count III); attempted robbery (§§ 211/664, count IV); arson causing great bodily injury (§451, subd. (a), count V); and damaging telephone wires (§591, count VI). In addition, as to some counts the information alleged use of a deadly weapon, infliction of great bodily injury and great bodily injury on the aged in violation of sections 12022, subdivision (b), 12022.3, subdivision (a), 12022.7, 12022.8, 1203.09 and 1203.075. The information further alleged a prior felony conviction.

Shortly after appellant’s motion to suppress evidence pursuant to section 1538.5 was granted as to a medallion only and denied as to all other evidence seized,² jury trial commenced. After trial was completed and during jury deliberations, it became apparent that there had been jury miscondiict. During a recess in deliberations but before a determination of whether a mistrial should be granted, appellant pled guilty to all charges and nolo contendere to all the enhancing allegations. In return for his plea, appellant’s prior conviction was stricken and the trial court promised him a prison sentence of only 12 years (instead of a much more severe possible sentence) on condition that appellant waive his right to appeal the court’s prior ruling denying his suppression motion. Thereafter, in full compliance with the plea negotiations, appellant was sentenced to state prison to the agreed term of 12 years.³

His express waiver notwithstanding, appellant filed a notice of appeal pursuant to section 1538.5, subdivision (m),⁴ challenging the legality of the search and seizure. The crucial issues thus arise whether a criminal defendant may validly waive his right to appellate review as a part of the plea negotiation and whether the waiver in the present case was valid. For reasons which follow, we answer both questions in the affirmative and uphold the trial court’s judgment.

Discussion

It is well settled that the right of a criminal defendant to appeal his conviction is purely statutory in California inasmuch as neither the federal nor the state Constitution provides such right. (Abney v. United States (1977) 431 U.S. 651, 656 [52 L.Ed.2d 651, 657-658, 97 S.Ct. 2034]; Douglas v. California (1963) 372 U.S. 353 [9 L.Ed.2d 811, 83 S.Ct. 814].) By entering a guilty plea the defendant waives his right to appeal any error in the pretrial proceedings. (Lefkowitz v. Newsome (1975) 420 U.S. 283, 288 [43 L.Ed.2d 196, 201, 95 S.Ct. 886]; People v. DeVaughn (1977) 18 Cal.3d 889, 895-896 [135 Cal.Rptr. 786, 558 P.2d 872].) The general rule in this country is that he cannot ever, even with the consent of all parties, enter a plea of guilty conditioned upon retaining the right to challenge in the appellate courts the denial of his motion to suppress evidence. (State v. Losieau (1978) 266 N.W.2d 259.) For, “by his plea of guilty he had admitted the facts establishing the essential elements of the crime with which he was charged and thus has waived his right to appeal nonjurisdictional defects.” (Id., at p. 262.) California codified an exception to the general rule when it adopted section 1538.5, subdivision (m) in 1967. That this statute is an exception to the general rule that all errors prior to the entry of the guilty plea are waived (except jurisdictional ones) is clear. (People v. Lilienthal (1978) 22 Cal.3d 891, 897 [150 Cal.Rptr. 910, 587 P.2d 706]; People v. Kaanehe (1977) 19 Cal.3d 1, 9 [136 Cal.Rptr. 409, 559 P.2d 1028].) Significantly enough, prior to the enactment of this section a defendant could not appeal the search and seizure issue following a guilty plea because as the court put it “the right at stake here is not the fundamental right to be free from unreasonable searches and seizures, but a much narrower right—to appeal from an adverse ruling on a suppression motion . . . .” (In re David G. (1979) 93 Cal.App.3d 247, 254 [155 Cal.Rptr. 500].)

The limited issue before us therefore is whether the statutory, nonfundamental right accorded by section 1538.5, subdivision (m), may be waived by a defendant in return for the benefits granted by a plea agreement. While this issue has neither been raised nor decided by any California case, there are cogent policy considerations and persuasive legal authorities compelling the conclusion that such waiver must be upheld by reviewing courts.

It is, of course, commonplace that plea negotiating has become an accepted practice in American criminal jurisprudence, “an integral part of the administration of justice ...” (Barber v. Gladden (D.Ore. 1963) 220 F.Supp. 308, 314) and “essential to expeditious and fair administration of justice” (People v. Williams (1969) 269 Cal.App.2d 879, 884 [75 Cal.Rptr. 348]). The great majority of criminal cases are disposed of by pleas of guilty. As the court remarked in Brady v. United States (1970) 397 U.S. 742, 752 [25 L.Ed.2d 747, 758, 90 S.Ct. 1463], statistical data show that over three-fourths of the criminal convictions in this country rest on guilty pleas.

Both the People and the defendant may profit from plea negotiations. The benefit to the defendant is lessened punishment by way of reducing the charges, dismissing or refraining from bringing other charges or presenting the court with favorable sentence recommendation. (Staton v. Warden (1978) 175 Conn. 328 [398 A.2d 1176, 1178]; see also 69 Nw.U.L.Rev. 663-664; 83 Harv.L.Rev. 1387, 1389-1390.) The benefit to the People lies in saving the costs of trial, increased efficiency of the procedure and added flexibility of the criminal process. As widely recognized, plea negotiation is an indispensable element in the efficient administration of criminal justice. (Brady v. United States, supra, 397 U.S. 742; People v. West (1970) 3 Cal.3d 595, 604 [91 Cal.Rptr. 385, 477 P.2d 409]; In re Hawley (1967) 67 Cal.2d 824, 828 [63 Cal.Rptr. 831, 433 P.2d 919].)

Due to the obvious importance of guilty pleas the courts recognize that in order to obtain the mutual benefits flowing from such pleas the criminal defendant may waive such crucial constitutional rights as the privilege against self-incrimination, trial by jury, and confrontation and cross-examination of incriminating witnesses. (Boykin v. Alabama (1969) 395 U.S. [23 L.Ed.2d 274, 89 S.Ct. 1709]; In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449].) Starting from this premise, the conclusion is inescapable that if constitutional rights of utmost significance may be surrendered by the defendant in order to achieve the well-recognized benefits of the plea agreement, a statutory and less fundamental right (such as the right to appeal from an adverse ruling on the legality of search) may also be validly waived provided such waiver is knowing, free and intelligent.

This proposition is supported not only by plain logic and common sense, but also by a vast array of cases and legal authorities from sister state jurisdictions. In People v. Williams (1975) 36 N.Y.2d 829 [370 N.Y.S.2d 904, 331 N.E.2d 684] (cert. den. 423 U.S. 873 [46 L.Ed.2d 104, 96 S.Ct. 141]), a case very similar to the case at bench, the defendant was asked to waive his right of appeal from the denial of his suppression motion as a condition to the acceptance of his guilty plea. On appeal, the defendant contended that as a matter of law there could be no valid waiver of his statutory right to appeal from the preconviction denial of the motion to suppress. The reviewing court rejected defendant’s contention and held that where a plea on a condition was voluntarily entered with full comprehension on the defendant’s part of both the plea and the associated conditions, the waiver of his right to appeal the denial of a suppression motion may properly be enforced against him.

Again, in People v. Di Orio (1984) 99 App.Div.2d 593 [471 N.Y.S.2d 701], the defendant pled guilty to the lesser charge. One of the conditions of the plea was defendant’s consent to waive his right to appeal the result of the suppression hearing. In upholding the validity of the waiver, the appellate court pointed out that the waiver of the statutory right to appeal the denial of a suppression motion is effective provided it is knowingly and voluntarily made and is a part of the plea negotiations.

In People v. Martin C. (1981) 107 Misc.2d 1007 [436 N.Y.S.2d 524], in a comparable situation, the reviewing court emphasized if such fundamental constitutional rights as right to jury trial, cross-examination and to exercise the privilege against self-incrimination may be waived as a condition to acceptance of a plea, a statutory right of appeal from an adverse pretrial ruling may be likewise waived in order to attain the mutual benefits of the plea negotiations. Echoing the same idea, the United States Supreme Court likewise stated, “We see nothing in the right to appeal or the right to attack collaterally a conviction, even where constitutional errors are claimed, which elevates those rights above the rights to jury trial and to remain silent.” (Chaffin v. Stynchcombe (1973) 412 U.S. 17, 33 [36 L.Ed.2d 714, 727, 93 S.Ct. 1977].)

People v. Jasper (1981) 107 Misc.2d 992 [436 N.Y.S.2d 185] expressed the same principles as set out above and underscored, that a plea conditioned upon a defendant’s waiver of his right to appeal the denial of a suppression motion is permissible and valid as long as the record reflect that such waiver was entered into knowingly, freely and voluntarily. (Accord United States ex rel. Amuso v. LaVallee (E.D.N.Y. 1968) 291 F.Supp. 383 [affd. 427 F.2d 328]; State v. Gibson (1975) 68 N.J. 499 [348 A.2d 769, 89 A.L.R.3d 840]; Staton v. Warden, supra, 398 A.2d 1176; State v. McKinney (La. 1981) 406 So.2d 160; People v. Jimenez (1983) 97 App.Div.2d 799 [468 N.Y.S.2d 421]; State ex rel. Adams v. Norvell (1969) 1 Tenn.Crim. 648 [448 S.W.2d 454].)

The principles set out above are buttressed by the Uniform Rules of Criminal Procedure (approved 1974) as well. Rule 444(d) provides that a negotiated plea bars an appeal based upon any nonjurisdictional defect in the proceedings except an order denying a pretrial motion to suppress evidence or any pretrial motion to suppress evidence or any pretrial motion which, if granted, would be dispositive of the case. Notwithstanding this general premise, rule 443(a)(4) sets up an exception by providing that the parties may agree that the defendant will plead guilty on the condition that he or she will not seek appellate review as permitted under rule 444(d) of an order denying a pretrial motion. (Accord State v. Gibson, supra, 348 A.2d 769, 774; State v. Crosby (La. 1976) 338 So.2d 584, 589; State v. McKinney, supra, 406 So.2d 160, 162.) The rationale of this exception, as explained in the comment to the section, is to make the plea final and thereby encourage the plea agreement process.⁵

Appellant’s contention that the waiver at bench should be held invalid because it is against the public policy of this state (Civ. Code, § 3513,⁶ People v. Dominguez (1967) 256 Cal.App.2d 623 [64 Cal.Rptr. 290]; People v. Blakeman (1959) 170 Cal.App.2d 596 [339 P.2d 202]) is not persuasive.

While the statutory right to appeal must be jealously protected (Douglas v. California, supra, 372 U.S. 353), there is equal public interest that plea agreements freely entered into should be encouraged by enforcing their terms consented to by the parties. As the court remarked in United States ex rel. Amuso v. LaVallee, supra, 291 F.Supp. 383, 385, “Conditioning charge concessions on a waiver of the right to appeal from the sentence on the guilty plea is one method of making a plea agreement enforcible.” Moreover, the argument that waiver of appellate right in return for a plea contravenes public policy was raised and rejected by State v. Gibson, supra, 348 A.2d 769 where the court stated as follows: “It is obvious that a pronouncement by this court of the flat illegality under any circumstances of an agreement by a defendant to waive an appeal would operate substantially to cut down the incentive of prosecutors in many cases to offer what particular defendants and their attorneys might regard as worthwhile inducements to forego that right. Discouragement of plea negotiation to that extent does not appear to us consistent with sound judicial policy, [¶] We do not share the view that there is an affirmative public policy to be served in fostering appeals, whether civil or criminal, such that the waiver of an appeal by a defendant is per se against the public interest. It has been said, to the contrary, that ‘[t]he settlement of litigation ranks high in our public policy. ’ [Citation.] That view properly applies to criminal as well as civil litigation, particularly in this era of proliferation of criminal appeals, provided always the administration of such a settlement is fair, free from oppressiveness, and sensitive to the interests of both the accused and the State.” (At p. 775, italics added.)

California law also recognizes that a criminal defendant may waive his rights under section 1538.5. Thus, in People v. Peters (1970) 7 Cal.App.3d 154, 159-160 [86 Cal.Rptr. 521], the court held that a defendant who withdrew his motion under section 1538.5 and stipulated to the admissibility of the evidence could not raise the search and seizure issue on appeal. We believe the waiver of the right to seek appellate review may be deemed analogous to a withdrawal of the motion to suppress evidence. It is also well established that the search and seizure issue may be waived by failing to make an appropriate objection at trial, that is, by tacit waiver. (People v. Rogers (1978) 21 Cal.3d 542 [146 Cal.Rptr. 732, 579 P.2d 1048].) If tacit waiver of rights under section 1538.5 is acknowledged, no good reason appears why an express waiver freely and intelligently made by a defendant should be denied recognition by the court.

We do, of course, recognize that some cases do hold that the defendant’s right to appeal is not subject to bargaining and that the waiver of appellate right as a price for a plea has been held to be either unconstitutional and/or contrary to public policy. (People v. Butler (1972) 43 Mich.App. 370 [204 N.W.2d 325]; People v. Stevenson (1975) 60 Mich.App. 614 [231 N.W.2d 476]; State v. Ethington (1979) 121 Ariz. 572 [592 P.2d 768]; see also Worcester v. C.I.R. (1st Cir. 1966) 370 F.2d 713.) These authorities, however, represent a minority view (State v. Gibson, supra, 348 A.2d at p. 772), in this country and their reasoning lacks persuasion. They do not address why a defendant may be allowed to waive his most important constitutional rights (right to jury trial, cross-examination, and privilege against self-incrimination) as a price for a plea, but at the same time is barred from waiving the much lesser right of appeal—a right based merely on statute and which does not even qualify as a “fundamental” right. (Abney v. United States, supra, 431 U.S. 651; In re David G., supra, 93 Cal.App.3d 247.) Therefore, we believe that Butler and its progeny are founded on questionable legal premises and as a consequence, we decline to follow them.

Appellant’s alternative contention that abandoning his statutory right to appeal the suppression ruling should be invalidated because it was a result of coercion on the part of the trial judge, must be rejected for two distinct reasons.

One, appellant was repeatedly advised by both the district attorney and the trial judge that his guilty plea and resultant imposition of a 12-year sentence was accepted on condition that he would waive his right to appeal the denial of his suppression motion.⁷ He fully understood the conditions of the agreement, including the waiver of appeal right, and did avail himself of the benefit of the court’s plea offer. Under these circumstances appellant is bound by the whole agreement and is not free to repudiate its unfavorable terms. (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1024 [184 Cal.Rptr. 483]; People v. Caron (1981) 115 Cal.App.3d 236, 246 [171 Cal.Rptr. 203].)

Two, the fact that appellant entered into the plea agreement and consented to the waiver of his right to appeal only to avoid a higher punishment does not render the plea coercive. In an analogous situation when the defendant entered into a plea to avoid the possibility of a death sentence, the Supreme Court held that the plea of guilty was not invalid as coerced by pointing out that “ ‘ “[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g. bribes).” ’ ” (Brady v. United States, supra, 397 U.S. at p. 755 [25 L.Ed.2d at p. 760].)

Appellant’s additional argument that the plea agreement at bench was invalid because the judge exceeded his role by actively negotiating instead of passively approving the agreement, requires only brief comment. Even assuming arguendo that the attitude of the judge was not completely objective (People v. Orin (1975) 13 Cal.3d 937, 92-943 [120 Cal.Rptr. 65, 533 P.2d 193]; People v. Williams, supra, 269 Cal.App.2d 879, 884), appellant cannot prevail upon this ground. It is blackletter law that appellant may challenge only errors which are injurious to him—not those which may be injurious to the other party. (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, §§ 212-213; People v. Powell (1949) 34 Cal.2d 196, 205 [208 P.2d 974].) While in this case the prosecution objected to the 12-year sentence and suggested a minimum of 18 years, appellant accepted the trial court’s offer of a 12-year prison term for all the offenses committed and did so without any protestation or opposition. Under these circumstances appellant cannot be heard to complain about the judge’s participation in the negotiating process because, as succinctly stated, it is “intolerable to permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.” (Lindsay-Strathmore I. Dist. v. Superior Court (1920) 182 Cal. 315, 338 [187 P. 1056]; see also Caminetti v. Pac. Mutual L. Ins. Co. (1943) 22 Cal.2d 386, 392 [139 P.2d 930]; In re Christian J. (1984) 155 Cal.App.3d 276, 279 [202 Cal.Rptr. 54].)

In summary, we conclude that a criminal defendant may waive his or her statutory right to appeal the trial court’s ruling on the suppression motion and that such waiver may be made a condition of a plea agreement. As long as the record shows that the waiver was free, knowing and intelligent (as is the case here), it must be upheld as a part of the plea agreement and the defendant will be forever barred from raising the search and seizure issue on appeal notwithstanding section 1538.5, subdivision (m).

In light of our holding, we need not address the additional issues raised by appellant.

The judgment is affirmed.

Barry-Deal, J., concurred.

Assigned by the Chairperson of the Judicial Council.

1 Unless otherwise indicated, all further statutory references are to the Penal Code.

2 This evidence consisted of clothes, addressed bill envelopes, a newspaper article, gold piece, etc.

3 The record shows that the prosecutor repeatedly objected to this lenient sentence. In a letter addressed to the probation office, the prosecutor recommended that appellant be sentenced to state prison for a term of 18 years. The prosecutor also argued at the sentencing hearing that appellant should get a much more severe sentence for the heinous crimes he committed.

4 Section 1538.5, subdivision (m), provides in relevant part that “A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that such judgment of conviction is predicated upon a plea of guilty. Such review on appeal may be obtained by the defendant providing that at some stage of the proceedings prior to conviction he has moved for the return of property or the suppression of the evidence.”

5 The comment to rule 443(a)(4) states as follows: “If the right set out in Rule 444(d) were absolute, in the sense that it could never be surrendered in the plea agreement process, then the result might be to discourage plea negotiations. In every case, the prosecutor would know that notwithstanding the defendant’s plea the case really is not over, as the defendant might still appeal on several grounds unrelated to the sufficiency of the procedures used in receiving the plea. Under such circumstances, it is likely that defendants could not obtain concessions to the extent that they are now obtained, as presently, where (for example) a defendant’s pretrial motion to suppress is denied, one of the elements in the bargaining equation is the probability of the trial judge being upheld on appeal. That is, the defendant may gain concessions by his plea because the prosecutor knows that as a consequence of the plea the judge’s ruling can no longer be challenged.”

6 Civil Code section 3513 provides that “Anyone may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement. ”

7 The pertinent part of the record reads as follows: “Mr. Harmon [Deputy District Attorney]: . . . You realize that in order to get the 12 years that the judge is going to give you, that you are agreeing to give up your right to appeal that motion? Do you realize that?

“The Defendant: Yes.

“Mr. Harmon: And you are doing that so that you can get the 12 years, aren’t you? I mean that is one of the reasons that you are giving it up; isn’t it?

“The Court: You are giving up your right to appeal so that you don’t get stuck with more than 12 years.

“The Defendant: I am pleading guilty so that I don’t get more than 12 years.

“The Court: That’s right, and in doing that, you are also giving up your right to appeal. Right?

“The Defendant: Yes.

“Mr. Harmon: And you realize that one of the reasons he is agreeing to give you 12 years is because you gave up your right to appeal that. Do you understand that?

“The Court: Do you understand what he is saying?

“(The defendant nods affirmatively.)”