People v. Wright ( 2019 )

Filed 1/25/19
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D073038
Plaintiff and Respondent,
v. (Super. Ct. No. SCN362585)
JUSTIN MICHAEL WRIGHT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Carlos R.
Armour, Judge. Motion to dismiss denied; affirmed and remanded for resentencing.
Linnea M. Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B.
Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
In exchange for a stipulated 11-year sentence and the dismissal of other counts,
Justin Michael Wright pleaded guilty to transporting a controlled substance (Health &
Saf. Code,1 § 11352, subd. (a)). He also admitted having a strike prior and one prior
conviction for a violation of section 11351.5, thereby triggering the imposition of a three-
year enhancement under section 11370.2, subdivision (a). In a written plea agreement,
Wright waived his right to appeal, including among other things, "any sentence stipulated
herein." The court sentenced Wright to the stipulated 11-year prison term, which
consisted of the four-year midterm doubled for the strike prior, plus a three-year
enhancement under 11370.2, subdivision (a). At the time of Wright's sentencing, section
11370.2, subdivision (a) required "in addition to any other punishment authorized by
law" a "full, separate and consecutive" three-year term if a defendant was convicted of
violating section 11352 and had suffered a previous conviction for various drug offenses,
including section 11351.5. (Stats. 1998, ch. 936, § 1, p. 6846.)
In October 2017 the Governor signed Senate Bill No. 180, which amended section
11370.2, effective January 1, 2018, to limit the scope of the enhancement to apply only to
prior convictions for a violation of section 11380.2 (People v. Millan (2018) 20
Cal.App.5th 450, 454; Stats. 2017, ch. 677, § 1, p. 5031.) The Millan court held that
amended section 11370.2 applies retroactively to actions in which the judgment is not
final. (Millan, at p. 455; In re Estrada (1965) 63 Cal. 2d 740, 748 ["[W]here the
amendatory statute mitigates punishment and there is no saving clause, the rule is that the
amendment will operate retroactively so that the lighter punishment is imposed" so long
1 Undesignated statutory references are to the Health and Safety Code.
2 We grant Wright's unopposed request to take judicial notice of legislative history
materials for amended section 11370.2. (Evid. Code, § 452, subd. (c).)
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as the amended statute takes effect before the judgment of conviction becomes final.].)
Thus, as of January 1, 2018, the three-year enhancement imposed on Wright's sentence
would be unauthorized.
Acting in propria persona, Wright timely appealed. When Wright obtained
appellate counsel, counsel sought leave to file an amended notice of appeal and seek a
certificate of probable cause. Wright indicated that he intended to argue on appeal that
amended section 11370.2 applied retroactively. He asserted that a certificate of probable
cause was not required because retroactive application of this change in the law does not
affect the validity of his plea, citing Harris v. Superior Court (2016) 1 Cal.5th 984
(Harris). In Harris, the California Supreme Court quoted Doe v. Harris (2013) 57
Cal. 4th 64 (Doe) which declared the general rule that all plea bargains are deemed to
"contemplate and incorporate" subsequent changes in the law. (Harris, at p. 990; Doe, at
p. 66.) Nonetheless, Wright requested a certificate of probable cause in an abundance of
caution. The trial court granted Wright's unopposed request.
Wright contends that the ameliorative provision of amended section 11370.2
applies retroactively because his case is not yet final, and we should vacate the now
inapplicable three-year enhancement, arguing that there is no need to remand the matter
to the trial court for resentencing. The People moved to dismiss the appeal, arguing that:
(1) Wright's failure to timely seek a certificate of probable cause precludes appellate
review of his sentence, and (2) Wright waived his right to appeal because the
enhancement was part of a negotiated plea. The People concede that if we deny the
motion to dismiss and reach the merits of Wright's appeal that the enhancement imposed
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under section 11370.2 must be stricken and that the matter should be remanded with
orders to strike the enhancement and resentence Wright.
We granted Wright's unopposed motion to deem the certificate of probable cause
operative for purposes of appeal. This order moots the People's contention that the
appeal should be dismissed for lack of a certificate of probable cause, and we do not
address the merits of this issue. The remaining question is whether a defendant's waiver
of the right to appeal a stipulated sentence applies to a future sentencing error based on a
change in the law of which the defendant is unaware at the time the plea is entered.
As we shall explain, we conclude that Wright did not waive the right to appeal
future sentencing error based on a change in the law of which he was unaware at the time
he entered his plea. Accordingly, we deny the motion to dismiss the appeal, affirm
Wright's conviction, but reverse the sentence and remand the matter to the trial court with
directions to strike the section 11370.2, subdivision (a) enhancement and resentence
Wright accordingly.
DISCUSSION
Relying on People v. Panizzon (1996) 13 Cal. 4th 68 (Panizzon), the People
contend that this appeal must be dismissed because the enhancement was part of a
negotiated plea where Wright stipulated to an 11-year prison sentence and expressly
waived his right to appeal "any sentence stipulated herein." Accordingly, the People
assert that the parties contemplated, at the time Wright entered his guilty plea, that the
waiver would apply to future error, including error with respect to the length of his
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sentence. Wright disagrees, arguing that his waiver of the right to appeal did not apply to
a future sentencing error of which he was unaware at the time he entered the plea.
"[A] 'negotiated plea agreement is a form of contract,' [and] it is interpreted
according to general contract principles. [Citation.] Acceptance of the agreement binds
the court and the parties to the agreement. [Citations.] ' "When a guilty [or nolo
contendere] plea is entered in exchange for specified benefits such as the dismissal of
other counts or an agreed maximum punishment, both parties . . . must abide by the terms
of the agreement." ' " (People v. Segura (2008) 44 Cal. 4th 921, 930-931 (Segura).)
Although the trial court retains inherent sentencing discretion, it must impose a sentence
within the bounds of the plea agreement. (Id. at p. 931.)
A plea bargain may include the waiver of the right to appeal. (Panizzon, supra, 13
Cal.4th at p. 80.) "Waivers may be manifested either orally or in writing." (Ibid.)
" '[T]he valid waiver of a right presupposes an actual and demonstrable knowledge of the
very right being waived. [Citations.]' [Citation.] It ' "[i]s the intelligent relinquishment
of a known right after knowledge of the facts." [Citation.]' [Citation.] The burden is on
the party claiming the existence of the waiver to prove it by evidence that does not leave
the matter to speculation, and doubtful cases will be resolved against a waiver.
[Citation.] The right of appeal should not be considered waived or abandoned except
where the record clearly establishes it." (People v. Vargas (1993) 13 Cal. App. 4th 1653,
1662.)
In Panizzon, supra, 13 Cal. 4th 68, the defendant received a written advisement of
his appellate rights and agreed, in writing, to waive his right to appeal the sentence. (Id.
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at pp. 82, 85-86.) Defendant subsequently appealed, "identifying the claim that his
sentence was disproportionate to the sentences imposed upon his codefendants and
thereby violative of the federal and state constitutional prohibitions against cruel and
unusual punishment." (Id. at p. 74.) Our high court held that defendant's claim fell
within the scope of the appellate waiver and was not reviewable on appeal. (Id. at p. 89.)
The court explained: "Not only did the plea agreement in this case specify the sentence
to be imposed, but by its very terms the waiver of appellate rights also specifically
extended to any right to appeal such sentence. Thus, what defendant seeks here is
appellate review of an integral element of the negotiated plea agreement, as opposed to a
matter left open or unaddressed by the deal." (Id. at pp. 85-86.) The Panizzon court
rejected defendant's characterization of the issue on appeal as an " 'unforeseen or
unknown error' . . . because the sentence imposed by the court was neither unforeseen nor
unknown at the time defendant executed the Waiver and Plea agreement' " (id. at p. 86)
and stated "the real thrust of defendant's claim concerns events predating entry of the plea
and waiver." (Ibid.)
"[A] waiver that is nonspecific, e.g., 'I waive my appeal rights' or 'I waive my right
to appeal any ruling in this case,' " is considered a general waiver. (Panizzon, supra, at p.
85, fn. 11.) "A broad or general waiver of appeal rights ordinarily includes error
occurring before but not after the waiver because the defendant could not knowingly and
intelligently waive the right to appeal any unforeseen or unknown future error.
[Citation.] Thus, a waiver of appeal rights does not apply to ' "possible future error"
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[that] is outside the defendant's contemplation and knowledge at the time the waiver is
made.' " (People v. Mumm (2002) 98 Cal. App. 4th 812, 815.)
The People argue that Panizzon, supra, 13 Cal. 4th 68 is controlling because the
plea agreement contains a specific waiver of the right to appeal the stipulated sentence,
not a general waiver. Wright disagrees, arguing that the People failed to acknowledge
Doe, supra, 57 Cal. 4th 64 (decided after Panizzon), or reconcile existing case law. We
agree with Wright.
Although the parties and the trial court may not unilaterally alter the terms of a
plea bargain (Segura, supra, 44 Cal.4th at pp. 930-931), the Doe court concluded that
subsequent statutory enactments or amendments may alter the terms of the plea bargain.
The Doe court held that "the 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." ' " (Doe, supra, 57 Cal.4th at p. 73.) "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; Johnson v.
Department of Justice (2015) 60 Cal. 4th 871, 888-889, fn. 10 [" 'requiring the parties'
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compliance with changes in the law made retroactive to them does not violate the terms
of the plea agreement' "].)
Here, nothing in Wright's plea agreement provided or implied that it would be
unaffected by subsequent changes in the law. (See Doe, supra, 57 Cal.4th at pp. 71, 73-
74 [parties to a plea agreement may expressly or impliedly agree the plea agreement will
be unaffected by subsequent changes in the law].) "[P]rosecutorial and judicial silence
on the possibility the Legislature might amend a statutory consequence of a conviction
should not ordinarily be interpreted to be an implied promise that the defendant will not
be subject to the amended law." (Id. at p. 71.) Moreover, unlike Panizzon, where the
defendant's claim "concern[ed] events predating entry of the plea and waiver" (Panizzon,
supra, 13 Cal.4th at p. 86), Wright's waiver of his right to appeal his stipulated sentence
cannot be construed as applying to a sentencing error of which he had no notice when he
signed the plea agreement. Nothing in the record suggests that the parties considered or
addressed the possibility that future legislation might abolish the required three-year
enhancement for Wright's prior felony drug conviction.
Accordingly, under Doe, the "plea agreement's reference to a statutory
consequence attending a conviction, even when coupled with prosecutorial and judicial
silence on the possibility the Legislature might amend the statute, does not give rise to an
implied promise that [Wright], by pleading guilty . . . , [would] be unaffected by a change
in the law." (Doe, supra, 57 Cal.4th at p. 73.) If parties to a plea agreement want to
insulate the agreement from future changes in the law they should specify that the
consequences of the plea will remain fixed despite amendments to the relevant law.
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Because amended section 11370.2 rendered the conduct to which Wright admitted
no longer punishable as an enhancement, the three-year enhancement must be stricken.
On remand the trial court is to resentence Wright in accordance with the applicable
statutes and rules, provided that the aggregate term does not exceed the stipulated
sentence. (People v. Calderon (1993) 20 Cal. App. 4th 82, 88 ["[i]t is perfectly proper for
[the appellate] court to remand for a complete resentencing after finding an error with
respect to part of a sentence"]; People v. Castaneda (1999) 75 Cal. App. 4th 611, 614
[remand for resentencing proper where original sentence contained unauthorized
enhancement].)
DISPOSITION
The People's motion to dismiss is denied. Wright's sentence is vacated and the matter
is remanded to the trial court with directions to strike the Health and Safety Code section
11370.2, subdivision (a) enhancement and resentence Wright. The clerk of the court shall
prepare an amended abstract of judgment to reflect the stricken enhancement and additional
changes made at resentencing, if any, and forward it to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
NARES, Acting P. J.
WE CONCUR:
O'ROURKE, J.
GUERRERO, J.
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