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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Danny West BROWN, Defendant and Appellant.

No. D018897.

Decided: April 26, 1994

Carmela F. Simoncini, San Diego, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., William M. Wood and Demetra P. Lewis, Deputy Attys. Gen., for plaintiff and respondent.

Danny West Brown appeals the judgment on his residential burglary conviction.  (Pen.Code, §§ 459, 460.)

During the early morning hours of July 23, 1992, Brown was drinking in a La Mesa bar.   After leaving, he broke into Catherine Ellis's home.   Ms. Ellis called 911.   Upon going downstairs, she discovered her purse missing and several frozen food containers on the sink.   Responding officers found Brown several houses away trying to open car doors.   One of the officers saw him throw Ms. Ellis's purse under a car.

Brown entered a negotiated guilty plea to residential burglary which included a four-year lid, dismissal of an attempted auto theft charge and waiver of the right to appeal.   Following a Department of Corrections diagnosis and evaluation (Pen.Code, § 1203.03), the court sentenced him to serve the four-year middle term.   Brown contends this was error.

 At the outset, we note Brown waived his right to appeal.

 A defendant may waive his right to appeal as part of a plea bargain.  (People v. Nguyen (1993) 13 Cal.App.4th 114, 119, 16 Cal.Rptr.2d 490.)   Brown argues the waiver does not apply to sentencing matters.   This claim was recently discussed at length in People v. Nguyen, supra.   We agree with the reviewing court's statement there:

“To properly define the reach of such a waiver, we must be mindful of the context in which it normally will be made:  a plea or sentence bargain.   Courts have traditionally viewed such bargains using the paradigm of contract law.   (See e.g., People v. Kaanehe (1977) 19 Cal.3d 1, 13 [136 Cal.Rptr. 409, 559 P.2d 1028] [discussing the availability of specific performance];  People v. Jackson (1981) 121 Cal.App.3d 862, 869 [176 Cal.Rptr. 166] [bargain invalidated due to impossibility];  but see People v. Marsh (1984) 36 Cal.3d 134, 140 [202 Cal.Rptr. 92, 679 P.2d 1033] [bargain does not require the consideration which would support a contract].)   Using that analogy, courts should look first to the specific language of the agreement to ascertain the expressed intent of the parties.  (See Stevenson v. Oceanic Bank (1990) 223 Cal.App.3d 306, 316 [272 Cal.Rptr. 757];  Estate of Wemyss (1975) 49 Cal.App.3d 53, 59 [122 Cal.Rptr. 134].)   Beyond that, the courts should seek to carry out the parties' reasonable expectations.  (Civ.Code, § 1643;  County of Marin v. Assessment Appeals Bd. (1976) 64 Cal.App.3d 319, 325 [134 Cal.Rptr. 349].)”   (People v. Nguyen, supra, 13 Cal.App.4th at p. 120, 16 Cal.Rptr.2d 490.)

In Nguyen, the reviewing court found the waiver did not include an appeal contending the trial court exceeded its jurisdiction during sentencing or that the sentence was in excess of the plea bargain.   The court held the waiver bars appeal where the defendant bargains for a specific stipulated term of imprisonment.  (Id. at pp. 122–123, 16 Cal.Rptr.2d 490.)   The court in Nguyen did not specifically decide whether the waiver applies to an agreement there be a lid on the sentence but said, “․ we see no reason at first blush why a waiver would not be valid where the defendant bargains for an indefinite (‘not more than X years') term, ․” (Id. at p. 122, 16 Cal.Rptr.2d 490.)

Here, the parties agreed to a four-year lid.   Both parties had the right to enforce that provision or be relieved from the contract.   Had the trial court imposed a five-year term, the breach of contract is as severe as if the parties agreed to a specific four-year term.   A term of four years or less was within the contemplation of the parties.   We see no reason to treat the plea bargain containing a lid on the sentence differently than a plea bargain for a specific term.   Waiver of appeal is part of that agreement and is enforceable.

Relying on People v. Vargas (1993) 13 Cal.App.4th 1653, 17 Cal.Rptr.2d 445, Brown argues the waiver here is void because it was not knowing or intelligent.   In Vargas, the reviewing court said:

“We conclude on the record before us that the general waiver of the right of appeal did not include error occurring after the waiver because it was not knowingly and intelligently made.   Such a waiver of possible future error does not appear to be within defendant's contemplation and knowledge at the time the waiver was made.   Any person in defendant's position would reasonably know that such a general waiver of appeal rights obviously included error occurring up to the time of the waiver;  however, in our view, it is not reasonable to conclude that the defendant made a knowing and intelligent waiver of the right to appeal any unforeseen or unknown future error such as the erroneous deduction of conduct credits pursuant to section 4019, subdivision (c) as he has alleged on appeal.”  (Id. at p. 1662, 17 Cal.Rptr.2d 445.)

Unlike Vargas's challenge to credit for time served based on an error not contemplated when he waived his right to appeal, Brown seeks review of a prison term within the lid set in the plea bargain and within his contemplation when he waived the right.   Under these circumstances, we find Brown waived his right to appeal the sentencing issue.

 In any case, the trial court did not err in imposing the middle term.

Penal Code section 1170, subdivision (b) provides in part:

“When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime․”

 Brown recognizes determination as to the appropriate term is within the trial court's broad discretion (People v. Roe (1983) 148 Cal.App.3d 112, 119, 195 Cal.Rptr. 802) and must be affirmed unless there is a clear showing the sentence choice was arbitrary or irrational (People v. Hubbell (1980) 108 Cal.App.3d 253, 260, 166 Cal.Rptr. 466).   Brown argues factors in mitigation, his alcohol problem and need for food, outweigh aggravation.

 “Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citation], and may balance them against each other in qualitative as well as quantitative terms.  [Citation.]”  (People v. Roe, supra, 148 Cal.App.3d 112, 119, 195 Cal.Rptr. 802.)   One factor alone may warrant imposition of the upper term (People v. Kellett (1982) 134 Cal.App.3d 949, 963, 185 Cal.Rptr. 1) and the trial court need not state reasons for minimizing or disregarding circumstances in mitigation (People v. Salazar (1983) 144 Cal.App.3d 799, 813, 193 Cal.Rptr. 1).

Here, while imposing sentence the court said it had reviewed the probation report, the Department of Corrections' diagnostic study, the supplemental probation report and the record.   Defense counsel argued for a term lower than the four years recommended in the supplemental probation report, pointing out Brown was not armed when he committed the crime, inflicted no personal injury, the crime was unsophisticated and he was intoxicated when he committed the crime.   Counsel recognized Brown has a serious criminal history but argued he has no prior burglaries.   Defense counsel focused on Brown's need for alcohol treatment.   In response, the prosecution discussed Brown's long criminal history.   While denying probation, the court pointed out Brown's severe drinking problem and his “horrible” record.   It imposed the middle term saying it did not find sufficient aggravation or mitigation.

 “[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered.  [Citations.]  ․ [I]n the absence of a clear showing that its sentencing decision was arbitrary or irrational” a discretionary determination should not be set aside on review.   (People v. Giminez (1975) 14 Cal.3d 68, 72, 120 Cal.Rptr. 577, 534 P.2d 65.)   Here, the trial court did not abuse its discretion.


Judgment affirmed.

KREMER, Presiding Justice.

WORK and HUFFMAN, JJ., concur.