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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Dennis COLLAZO, Defendant and Appellant.

No. H012083.

Decided: August 02, 1995

Michael A. Kresser, Sixth District Appellate Program, for appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ann K. Jensen, Supervising Deputy Atty. Gen., Donna B. Chew, Deputy Atty. Gen., Allan Yannow, Deputy Atty. Gen., for respondents.

Defendant Dennis Collazo entered a written plea agreement whereby he waived his appellate rights and any credit for time served on a first degree murder conviction that was subsequently determined to be invalid.   After being sentenced to 12 years in prison pursuant to the agreement, defendant appeals, challenging his waiver of this credit.   For the reasons stated below, we will dismiss the appeal due to defendant's waivers.


In September 1982, Douglas Metzger was shot to death in his residence.   Defendant and Tony Young, an associate of defendant's, forced their way into Metzger's residence and fought with him.   Defendant's niece was indebted to Metzger for cocaine.   It appears that defendant brought the gun into the residence, struggled with the victim, departed from the residence while the fight was ongoing, and that Young shot Metzger after defendant left the residence.

In May 1983 defendant was convicted by a jury of first degree murder, burglary, and conspiracy to rob and burglarize, all while armed with a firearm.  (§§ 187, 459, 182, 12022, subd. (a).) 1  In June 1983 he was sentenced to 26 years to life.   This judgment was affirmed on appeal by an unpublished opinion filed in May 1986.   In 1991, the federal Ninth Circuit Court of Appeals, en banc, ordered the federal district court to grant Collazo a writ of habeas corpus based on a coerced confession.  (Collazo v. Estelle (9th Cir.1991) 940 F.2d 411.)   The order granting the writ was filed in February 1992.

The case was scheduled for retrial.   After several continuances, on September 1, 1993, the parties presented a written plea agreement to the trial court.   The agreement was that defendant would plead guilty to voluntary manslaughter (§ 192) for an aggravated term of six years as well as to residential burglary (§§ 459–460) for a consecutive aggravated term of six years, totalling twelve years in prison.   The agreement included the following terms.  “4. Defendant shall waive any and all credit for time he has served in custody on this case up until the date of August 23, 1993;  and [¶] 5. Defendant shall waive any and all appellate rights he has in this case in return for this plea bargain agreement, including specifically any claim under Penal Code section 654.”   The agreement appears to have been signed by defendant and his attorney, John Vaughn.

At the hearing on September 1, 1993, Vaughn stated, among other things:  “On September 17, 1993, Mr. Collazo will have been in custody 11 actual years, 11 painful years, it's a sad opportunity to relive the events of 1982, time away from his family, his wife, his children, and it's a painful decision.  [¶] Mr. Collazo has been asked to and has agreed to waive all of the time in this case.   He's giving up the benefit of credit for having served all of that time.   Emotionally it appears to Mr. Collazo that having done that is an admission on his part that those were 11 wasted years, that that time was for nothing․  So although legally, the time is not wasted, Mr. Collazo is left with that feeling and it doesn't sit well.”

The court pointed out that defendant might have received a greater sentence for his conduct.   By the bargain he was obtaining a certain release.  “And that is something ․ that is not normally extended to individuals who are factually guilty of the conduct for which this plea will be taken.”   Defendant expressly waived his rights to jury trial, to confront witnesses, to present evidence, and to avoid self-incrimination, and pled guilty pursuant to the agreement.

This plea agreement was renegotiated for reasons not apparent in the record.   On September 17, 1993, the parties presented the trial court with a new written plea agreement.   The court granted defendant's motion to set aside the first agreement.   Under the new agreement defendant would plead guilty to attempted murder (§§ 664, 187) for an aggravated term of nine years enhanced by three years for inflicting great bodily injury (§ 12022.7) for a total of twelve years in prison.   The agreement, again apparently signed by defendant and his attorney, Vaughn, contained the following terms.  “4. Defendant shall waive any and all credit for time he has served in custody on this case up until the date of August 23, 1993;  and [¶] 5.   Defendant shall waive any and all appellate rights he has in this case in return for this plea bargain agreement.”   At the hearing on September 17, the agreement was orally amended to provide that defendant would receive 90 days' credit for time served.   Again defendant expressly waived his rights to jury trial, to confront witnesses, to present evidence, and to avoid self-incrimination, and pled guilty pursuant to the plea agreement.   The parties also waived a further probation report.   Defendant was sentenced pursuant to the plea agreement on the same day.   Defendant was not advised by the trial court of what appellate rights he might have had.

Defendant sent a notice of appeal to the trial court.   It was filed on October 25, 1994, but the filing was canceled.   It was instead stamped “received” on November 9, 1994, due to defendant's waiver of his appellate rights.   Defendant objected by letter that “waiver of appeal to induce a plea bargain does not include a waiver of appeal on sentencing error” and that he was entitled to pursue an appeal.

The trial court recalled defendant for resentencing under section 1170, subdivision (d).   At a hearing on December 17, 1993, the trial court recited that defendant had been improperly released by the California Department of Corrections and had been rearrested.   Defendant's attorney had no objection to the plea bargain he negotiated, but requested that defendant be resentenced to probation due to the change in circumstances after the plea bargain.   The trial court stated that it had no discretion other than to either set aside the plea bargain or reimpose the sentence agreed to in the bargain.   At the request of defendant's attorney, the court ordered the notice of appeal filed.

At the December 17, 1993 hearing, defendant personally stated that the court had “illegally accepted” a plea bargain “where I was compelled and pressured to believe that my sentence was being pronounced according to law.   As the record show, [sic ] I was reluctant to accept this plea agreement and very much ignorant of the Penal Code Section 2900.1, 2900.5.”   Defendant's attorney explained that the Department of Corrections was telling defendant that he was entitled to the section 2900.1 credits he had waived.   The court articulated that any credits could be waived.   Defendant's attorney did not disagree.

Defendant's notice of appeal was filed on December 17, 1993.   Appellant's opening brief was filed August 15, 1994.   On October 18, 1994, the People filed a motion to dismiss the appeal because defendant failed to obtain a certificate of probable cause and because he waived his appellate rights.   Defendant filed opposition to this motion on October 31, 1994.   On November 3, 1994, this court deferred the motion for consideration with the merits of the appeal.

Waiver of Custody Credits and Right to Appeal

On appeal, defendant contends that section 2900.1 2 custody credits, arising from serving time based upon a judgment subsequently declared invalid, are not waivable.   The People contend that defendant has waived this issue by generally waiving his appellate rights and by specifically waiving credit in the plea agreement.

 A California criminal defendant can validly waive his or her statutory right to appeal in the course of entering a negotiated plea by an express waiver that is voluntary, knowing, and intelligent.  (People v. Nguyen (1993) 13 Cal.App.4th 114, 119, 16 Cal.Rptr.2d 490;  People v. Vargas (1993) 13 Cal.App.4th 1653, 1659, 17 Cal.Rptr.2d 445;  People v. Kelly (1994) 22 Cal.App.4th 533, 535–536, 27 Cal.Rptr.2d 383;  People v. Berkowitz (1995) 34 Cal.App.4th 671, 677, 40 Cal.Rptr.2d 150.)   A defendant can even waive the right to appeal a future sentence where the sentence is contemplated by the plea agreement entered by the defendant.  (Compare People v. Nguyen, supra, 13 Cal.App.4th at pp. 122–124, 16 Cal.Rptr.2d 490;  with People v. Vargas, supra, 13 Cal.App.4th at pp. 1661–1663, 17 Cal.Rptr.2d 445, and People v. Sherrick (1993) 19 Cal.App.4th 657, 659, 24 Cal.Rptr.2d 25.)

 Defendant recognizes that custody credits under related section 2900.5 3 are subject to knowing and intelligent waiver.   (People v. Correll (1991) 229 Cal.App.3d 656, 659, 280 Cal.Rptr. 266;  People v. Salazar (1994) 29 Cal.App.4th 1550, 1553, 35 Cal.Rptr.2d 221;  cf. People v. Zuniga (1980) 108 Cal.App.3d 739, 742, 166 Cal.Rptr. 549;  see People v. Johnson (1978) 82 Cal.App.3d 183, 188, 147 Cal.Rptr. 55;  People v. Harris (1987) 195 Cal.App.3d 717, 725, 240 Cal.Rptr. 891;  People v. Harris (1991) 227 Cal.App.3d 1223, 1227, 278 Cal.Rptr. 391.)   A defendant can even waive future credits under section 2900.5.  (People v. Ambrose (1992) 7 Cal.App.4th 1917, 1922–1923, 9 Cal.Rptr.2d 812.)   Circumstances may substantiate a knowing and intelligent waiver of custody credits without a full explanation of the scope of the waiver on the record.   There is no requirement that a complete explanation be on the record, although as the court in People v. Salazar pointed out “[n]o doubt the better course is to specifically advise the defendant on the record concerning the scope of a waiver of credits, ․”  (People v. Salazar, supra, 29 Cal.App.4th at p. 1554, 35 Cal.Rptr.2d 221.)

 We conclude, in light of the above authority, that a criminal defendant is barred from raising an issue on appeal when the defendant has expressly waived his or her appellate rights, particularly where the defendant has also specifically waived the issue urged on appeal.   To complete our discussion we consider defendant's contention that section 2900.1 prohibits such a waiver.

Defendant argues as follows.   Unlike section 2900.5 credits, section 2900.1 credits are not subject to waiver.   Waiver could result in a sentence in excess of that authorized by law.   His new sentence, 12 years, is the maximum possible for the crime to which he ultimately pled guilty, attempted murder with great bodily injury.   By his waiver of credit for time served (11 years according to both trial and appellate counsel), defendant's total sentence for attempted murder will amount to over 23 years.   This punishment is disproportionately greater than his crime.

In support of this argument, defendant relies on dictum in People v. Ambrose, supra, 7 Cal.App.4th 1917, 9 Cal.Rptr.2d 812.  Ambrose upheld a waiver of future custody credits under section 2900.5 because it allowed the defendant “the benefit of a less onerous disposition than would otherwise be available.”  (Id. at p. 1924, 9 Cal.Rptr.2d 812.)   The court cautioned:  “This does not mean, of course, that we would endorse a situation in which the denial of future credit enabled the court to impose a term which is longer than the maximum allowable for the offense.   Even if the defendant agrees to such a negotiated disposition, a trial court should not impose a sentence in excess of the maximum allowable for the plea entered.”  (7 Cal.App.4th at p. 1924, 9 Cal.Rptr.2d 812.)

Defendant contends that his credit waiver facilitated imposition of a term longer than the maximum allowable for his offense.   That depends upon how his offense is characterized.   It is obvious that defendant has obtained a reduced total sentence compared to the 26 years to life he received after his conviction of first degree murder while armed with a firearm.   Defendant's “waiver” of credit for time served was obviously an important inducement for the People to reduce the charges to facilitate imposition of a sentence of 12 more years in prison.   It is notable that both plea agreements contemplated defendant serving 12 more years under two different characterizations of his crimes, either voluntary manslaughter and residential burglary or attempted murder with great bodily injury.   We do not believe that Ambrose intended to preclude recharacterizing a defendant's offenses so as to afford the defendant a reduced sentence.   The circumstances here provide no basis for concluding that section 2900.1 credits are not waivable.

 Defendant also seeks to distinguish the rationale for allowing waiver of section 2900.5 credits.   Defendant notes that waiver of section 2900.5 credits has been allowed so that a defendant can serve more jail time as a condition of probation than otherwise possible under section 19.2 (formerly 19a).   We do not perceive this factual distinction to be a legally significant difference.   The general principle is that expressed in Civil Code section 3513.  “Any one may waive the advantage of a law intended solely for his [or her] benefit.   But a law established for a public reason cannot be contravened by private agreement.”  Section 2900.1 is designed to benefit those who have been committed to prison under an invalid judgment.   It is intended to avoid penalizing a defendant for pursuing his or her appellate remedies.  (People v. Chew (1985) 172 Cal.App.3d 45, 51, 217 Cal.Rptr. 805.)   We are not persuaded that there is any public reason preventing defendant from waiving the benefit of section 2900.1.   In view of our conclusion that section 2900.1 credits are subject to waiver, the resulting plea agreement and sentence in this case are not unauthorized.

Defendant also contends that, if he was capable of waiving section 2900.1 credits, his waiver here was not knowing and intelligent.   One premise of this contention is that his waiver occurred in ignorance of the nonwaivable nature of the credits.   For the reasons already stated, if defendant was advised the credits were waivable, the advice was accurate.

Defendant also contends that the record does not demonstrate that he was fully advised about the scope and effect of his waivers of appellate rights and of custody credits.   Defendant relies on People v. Rosso (1994) 30 Cal.App.4th 1001, 1006–1007, 36 Cal.Rptr.2d 218, which states, quoting from People v. Vargas, supra, 13 Cal.App.4th at pages 1661–1662, 17 Cal.Rptr.2d 445 (with internal quotations, brackets, and citations omitted):  “Waiver is ordinarily a question of fact.   It is defined as an intentional relinquishment or abandonment of a known right or privilege.   The determination of whether there has been an intelligent waiver ․ must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and the conduct of the accused.

“The valid waiver of a right presupposes an actual and demonstrable knowledge of the very right being waived.   It is the intelligent relinquishment of a known right after knowledge of the facts.   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.   The right of appeal should not be considered waived or abandoned except where the record clearly establishes it.”

Rosso refused to find a waiver of the right of appeal where there was neither a written advisement and waiver of appellate rights nor an oral advisement preceding an oral waiver.  (30 Cal.App.4th at p. 1007, 36 Cal.Rptr.2d 218.)   From all that appeared in the record there, the trial judge injected an appellate waiver into the standard advisement of constitutional rights waived by a guilty plea.  (Id. at pp. 1005–1006, 36 Cal.Rptr.2d 218.)

 Unlike Rosso, in this case there was not only a written waiver of appellate rights, but also a written waiver of custody credits.   Actually defendant and his attorney signed two such written waivers.   We will not require defendant's consultations with his attorney to be transcribed in open court in order to find a waiver of custody credits to be knowing and intelligent.   If a represented criminal defendant wants to establish that his or her attorney inadequately explained what they both signed, he or she will ordinarily need to bring in evidence outside the appellate record.   A petition for writ of habeas corpus would be an appropriate method of raising such a contention.

 Defendant contends that in this case, the record demonstrates that he was inadequately advised.   He points to statements by his attorney at the hearing on the first plea bargain that he was reluctant to enter the bargain and his own statements when he was recalled for resentencing that he was pressured to believe that his sentence was legal.   These statements do not demonstrate that he was inadequately advised by trial counsel.   Other statements by defendant's attorney in defendant's presence at the hearing on the first plea bargain indicate that defendant was well aware that he was waiving 11 years of custody credits to induce the People to enter into the bargain.

In People v. Nguyen, supra, 13 Cal.App.4th 114, 124, 16 Cal.Rptr.2d 490, the court noted that:  “a bargained waiver of appellate rights can be an effective tool for judicial economy.   It provides a means of eliminating appeals directed solely toward ‘technical’ sentencing issues, and precludes unfair attempts to alter the bargain.   The defendant, court, and skilled counsel can determine in any given case whether the proposed disposition merits such a waiver.”  (See also People v. Berkowitz, supra, 34 Cal.App.4th at p. 678, 40 Cal.Rptr.2d 150.)   We agree.

We conclude that the record does not support defendant's claim that his waivers of his appellate rights generally and his custody credits specifically were not knowing and intelligent.   Accordingly, on the basis of both waivers contained in the record, we conclude that this appeal should be dismissed.4


The appeal is dismissed.


1.   Unspecified section references are to the Penal Code.

2.   Section 2900.1 states:  “Where a defendant has served any portion of his sentence under commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts.”

3.   Section 2900.5 provides in pertinent part:  “(a) In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, ․ all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment․”

4.   In view of this conclusion, we do not consider the issues raised by the People and the defendant in the motion to dismiss—whether defendant failed to comply with section 1237.5 and whether the trial court effectively certified the appeal by ordering the notice of appeal filed.

BAMATTRE–MANOUKIAN, Acting Presiding Justice.


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