PEOPLE v. VARGAS (1992)

OPINION

A consolidated information charged defendant, Raymond Anthony Vargas, with three counts of robbery (Pen.Code, § 211) ¹ , three counts of false imprisonment by violence (§ 236), and one count of commercial burglary (§ 459).   The information further alleged a principal was armed with a firearm in four of the counts (§ 12022, subd. (a)), and defendant personally used a firearm as to two of the counts causing the offenses to become serious felonies (§§ 1203.06, subd. (a)(1), 12022.5, 1192.7, subd. (c)(8)).

Defendant initially entered a plea of not guilty to the charges and denied the allegations.   On February 16, 1990, the court denied defendant's motion to relieve the public defender.   On March 19, 1990, the court granted the public defender's motion to be relieved and appointed attorney Frank Cardinal to represent defendant.   On March 20, 1990, the court relieved Cardinal and appointed David Marcus as defendant's attorney.   Several months later, the court granted defendant's motion to proceed in propria persona (pro. per.) but denied defendant's motion for advisory counsel.   On July 6, 1990, the court granted defendant's motion to be relieved of pro. per. status and appointed David Karlson as attorney.   On October 12, 1990, the court denied defendant's motion to relieve Karlson and to proceed in pro. per.   On January 9, 1991, the court relieved Karlson pursuant to defendant's motion and granted defendant pro. per. status but denied defendant's motion for a continuance.

Defendant's trial began January 10, 1991, and proceeded through the presentation of the People's case.   After a discussion of his plea with the prosecutor, defendant pled guilty to count 5, robbery, and admitted one allegation that he personally used a firearm.   All other counts were to be dismissed.   As part of his plea bargain, defendant waived his right to appeal.   The court appointed Roger Remlinger to represent defendant at the sentencing hearing;  however, Remlinger also advised defendant when the court accepted defendant's plea.

The court denied defendant's later motion to withdraw his plea.   Pursuant to the plea bargain, the court sentenced defendant to three years for the robbery plus two years to be served consecutively for the enhancement.   All remaining counts and allegations were dismissed.   The court gave defendant a total of 764 days of credit after subtracting 10 days of conduct credit, noting “defendant has a behavioral problem.”

On appeal, defendant contends the court erred in refusing to grant a continuance after granting his motion to proceed in pro. per. thereby denying his right to counsel, and in reducing his conduct credit by 10 days.   The Attorney General argues the defendant has waived his right to appeal;  we agree and the case, therefore, must be dismissed.

FACTS

A discussion of the facts is unnecessary to the resolution of this case on appeal.

DISCUSSION

As part of the plea bargain, defendant expressly waived his right to appeal the conviction.   At the time it accepted defendant's plea, the court inquired, “Now, I understand you've waived your rights to appeal as a result of this arm's length negotiation;  is that true?”   Defendant replied, “Yes, sir.”   Defendant now challenges the validity of that waiver.

Our research reveals no California cases precisely on point.   In the case of People v. Charles (1985) 171 Cal.App.3d 552, 217 Cal.Rptr. 402, the court held that a defendant's express waiver of the right to appeal a ruling on a suppression motion was valid.  (Id., at pp. 557–562, 217 Cal.Rptr. 402.)   A majority of other jurisdictions have held the express waiver of the right to appeal made pursuant to a plea bargain is valid and enforceable.  (See, e.g., U.S. v. Rutan (8th Cir.1992) 956 F.2d 827;  U.S. v. Davis (4th Cir.1992) 954 F.2d 182, 184–186;  U.S. v. Navarro–Botello (9th Cir.1990) 912 F.2d 318;  Gwin v. State (Ala.Crim.App.1984) 456 So.2d 845, 848–849;  Staton v. Warden (1978) 175 Conn. 328, 334–335, 398 A.2d 1176;  People v. Fearing (1982) 110 Ill.App.3d 643, 644–645, 66 Ill.Dec. 378, 442 N.E.2d 939;  Judy v. State (1981) 275 Ind. 145, 416 N.E.2d 95;  State v. Hinners (Iowa 1991) 471 N.W.2d 841, 843–844;  Weatherford v. Commonwealth (Ky.1986) 703 S.W.2d 882;  State v. McKinney (La.1981) 406 So.2d 160;  Cubbage v. State (1985) 304 Md. 237, 246–248, 498 A.2d 632;  People v. Rodriguez (1991) 192 Mich.App. 1, 480 N.W.2d 287;  People v. Seaberg (N.Y.1989) 74 N.Y.2d 1, 543 N.Y.S.2d 968, 970–972, 541 N.E.2d 1022, 1024–1026;  State ex rel. Adams v. Norvell (1969) 1 Tenn.Crim.App. 648, 448 S.W.2d 454;  State v. Perkins (1987) 108 Wash.2d 212, 737 P.2d 250;  contra, State v. Ethington (1979) 121 Ariz. 572, 592 P.2d 768 [Decision is based on public policy];  Ballweber v. State (Minn.App.1990) 457 N.W.2d 215, 217–218 [Decision concerns appeal of a sentence and is based on a Minnesota statute and sentencing guidelines];  see also State v. Sainz (1987) 107 N.J. 283, 526 A.2d 1015, 1021 [Defendant may appeal despite waiver, but appeal acts as rescission of negotiated agreement, and prosecutor may reinstate charges].)

Plea bargaining, which resulted in defendant's waiver of his right to appeal in this case, is an accepted and integral part of our criminal justice system.  (People v. Charles, supra, 171 Cal.App.3d at p. 558, 217 Cal.Rptr. 402.)   Plea bargains benefit the criminal justice system by providing speed, economy and finality of judgments.  (U.S. v. Rutan, supra, 956 F.2d at p. 829.)   Defendants also benefit from plea agreements by gaining concessions from the People.  (Ibid.)  The benefits of plea bargaining would be eliminated if courts disallowed the waiver of the right to appeal to which the parties have agreed.  (U.S. v. Wiggins (4th Cir.1990) 905 F.2d 51, 54.)

“Plea bargaining does not violate the Constitution, even though a guilty plea waives important constitutional rights.  Newton v. Rumery, 480 U.S. 386, 393, 107 S.Ct. 1187, 1192, 94 L.Ed.2d 405 (1987)․   It is well-settled that a defendant may affirmatively waive constitutional rights to a jury trial, to confront and cross-examine witnesses, and to the Fifth Amendment privilege against self-incrimination.  Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969).   A defendant may also waive the right to counsel.  Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975).”  (U.S. v. Rutan, supra, 956 F.2d at p. 829.)

 The right to appeal a criminal conviction has no roots in the federal or California Constitutions and is a statutory right only.  (Abney v. U.S. (1977) 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651;  § 1237;  People v. Charles, supra, 171 Cal.App.3d at p. 557, 217 Cal.Rptr. 402.)   Therefore, if a defendant may waive important constitutional rights by pleading guilty, it follows a fortiori that a defendant may expressly waive his statutory right to appeal as part of a plea agreement, provided it is a knowing and voluntary waiver.  (U.S. v. Rutan, supra, 956 F.2d at p. 829;  U.S. v. Wiggins, supra, 905 F.2d at p. 53;  People v. Charles, supra, 171 Cal.App.3d at p. 559, 217 Cal.Rptr. 402.)

 We hold that an express waiver of the right to appeal made pursuant to a plea bargain is valid as long as defendant's waiver is a knowing and voluntary one.   Furthermore, we encourage prosecutors and trial judges to consider such waivers during the plea bargaining process.  (People v. Olson (1989) 216 Cal.App.3d 601, 604–605, 264 Cal.Rptr. 817.)

As the court in Olson pointed out:  “It is worthwhile to consider the cost to taxpayers of processing frivolous appeals.   Recently the Second Appellate District determined that the cost to the state of processing, renewing and deciding an average appeal in that district was $3,995.  (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 136, fn. 40, 260 Cal.Rptr. 369․) ²  Of course, in criminal appeals taxpayers incur additional expenses for preparing the record, for counsel from the Attorney General's office to defend against the appeal and, of course, for counsel appointed by the court to represent the defendant.   Thus the average cost of a criminal appeal with no meritorious issues may be something in the neighborhood of $6,000.   In fiscal year 1987–1988, there were 5,696 appeals filed in criminal cases in the California Courts of Appeal.   Even if only 5 percent of these appeals fall into the ‘frivolous' category those 285 cases result in an unnecessary cost to the taxpayers of $1,710,000 a year.   These precious taxpayer dollars should not be wasted on frivolous appeals.³

“We conclude by encouraging prosecutors and trial judges, in appropriate cases resolved by plea negotiation, to consider including as one element of the negotiation the defendant's waiver of the right to appeal.   If a waiver is obtained, the defendant still gets what he has negotiated for, the taxpayers avoid the waste of money and the Attorney General's office and appellate courts can concentrate their efforts on deserving appeals.”  (People v. Olson, supra, 216 Cal.App.3d at pp. 604–605, 264 Cal.Rptr. 817.)

 Defendant argues that his waiver of the right to appeal was a retroactive waiver of the right to counsel which is impermissible.   Defendant confuses the issue.   The waiver involved in this case is an explicit waiver of a statutory right to appeal, not an implicit waiver of the constitutional right to counsel.   Moreover, “There is no sanctity in such a claim of constitutional right as prevents its being waived as any other claim of right might be.”   (Wall v. Parrot Silver & Copper Co. (1917) 244 U.S. 407, 412, 37 S.Ct. 609, 611, 61 L.Ed. 1229.)

 In a related argument, defendant argues that once his constitutional right to counsel was abridged by the failure to grant him a continuance to fully prepare for trial as a pro. per.,⁴ all subsequent proceedings were illegal;  therefore, the waiver was not valid.   This argument is an attempt to convince this court to consider and discuss defendant's issues on appeal.   Our concern in this case is the validity of the waiver of the right to appeal.   Because we determine defendant's waiver was valid, we will not discuss his issues on appeal.

 The voluntariness of a waiver is a question of law which we review de novo.  (United States v. Navarro–Botello, supra, 912 F.2d at p. 320.)   To make this determination, we examine the particular facts and circumstances surrounding the case, including the defendant's background, experience and conduct.  (United States v. Davis, supra, 954 F.2d at p. 186.)

Defendant's actions during the proceedings indicate he comprehended and appreciated the workings of the criminal justice system.   Defendant proceeded in pro. per. intermittently during the progress of this case.   He was sufficiently aware of his rights and legal procedures to pose a motion for continuance, motions for discovery and supplies, motions for a legal runner and a defense investigator, motions to exclude evidence, motions to dismiss, and numerous objections during the presentation of the prosecution's case.   Defendant successfully negotiated a plea agreement with the prosecutor, resulting in an extremely favorable bargain in exchange for his guilty plea and waiver.   This conduct indicates a knowing and voluntary waiver.  (U.S. v. Rutan, supra, 956 F.2d at p. 830.)

Furthermore, the court advised defendant of the waiver of the right to appeal orally in court, and defendant indicated he was waiving this right.   In fact, defendant admitted to the court he had thought about and weighed the risks and benefits before entering his plea.

“The Court:  All right.   Now let me ask you this, Mr. Vargas.   You've thought long and hard about this, haven't you, this decision to change your plea?

“Defendant Vargas:  Yes, sir.

“The Court:  And do you believe you've had enough time to contemplate and consider the change of plea?

“Defendant Vargas:  Yes, sir.

“The Court:  And are you entering this plea because you think it's best to do so, having weighed the risk of trial and the benefits of the plea bargain?

“Defendant Vargas:  Yes, sir.”

 Defendant initialled and signed the change of plea form that indicated he was waiving his right to appeal.   The written waiver of the right to appeal demonstrates defendant was informed sufficiently of this right to knowingly waive it.  (People v. Castrillon (1991) 227 Cal.App.3d 718, 722, 278 Cal.Rptr. 121.)

Although defendant was not officially represented by counsel, he was advised by Remlinger when the court accepted defendant's plea.   Remlinger indicated he had looked at the plea bargain agreement and was present when the prosecutor went over it.   When the court inquired whether there was a factual basis for defendant's plea, Remlinger interrupted to explain the concept to defendant.   The court also allowed defendant to speak privately with Remlinger about the admission of the enhancement.   The fact a defendant received advice of counsel also is an indication the waiver was knowing and voluntary.  (U.S. v. Davis, supra, 954 F.2d at p. 186.)   The facts and circumstances of this case indicate defendant's waiver of his right to appeal was knowing and voluntary.

 Defendant contends his waiver was not voluntary and knowing because he did not understand that forfeiting his right to appeal included the continuance and right-to-counsel issues.   He asserts this waiver was not adequately explained to him.   Although a defendant may not know exactly the nature of the appeal that he is giving up in return for dismissal of pending charges, if he understands he is receiving a benefit in return, this knowledge is sufficient to make the plea agreement knowing and voluntary.  (U.S. v. Navarro–Botello, supra, 912 F.2d at p. 320.)   Defendant received the dismissal of six counts and five special allegations against him, plus the benefit of a known term, in exchange for his guilty plea and waiver of the right to appeal.   The record reveals defendant understood he had the right to appeal and that he was giving it up for certain benefits.

Therefore, defendant's waiver of his right to appeal was knowing and voluntary.  (U.S. v. Rutan, supra, 956 F.2d at p. 830.)   Defendant is bound by this agreement and may not repudiate the unfavorable terms.  (People v. Charles, supra, 171 Cal.App.3d at p. 562, 217 Cal.Rptr. 402.)

DISPOSITION

The appeal is dismissed.

FOOTNOTES

1.   All further references to code sections will be to the Penal Code unless otherwise indicated.

2.    This court recently published a case in which we updated the cost of an average civil appeal.   We determined that the cost of an average civil appeal is $5,908.26.  (Cohen v. General Motors Corp. (1992) 2 Cal.App.4th 893, 897, 3 Cal.Rptr.2d 619.)

3.    Using the latest cost figures, the average cost of a criminal appeal is $9,500.   In fiscal year 1990–1991, there were 6,665 criminal appeals filed in the California Courts of Appeal.   If only 5 percent of these cases are frivolous, those 333 cases result in an unnecessary cost to taxpayers of $3,163,500 a year.

4.   Despite defendant's compliance with section 1237.5, the appealability of this alleged error is questionable.   Such an error may be waived by the entry of a guilty plea.  (People v. Kaanehe (1977) 19 Cal.3d 1, 8–9, 136 Cal.Rptr. 409, 559 P.2d 1028.)   However, we do not discuss this issue because we determine the case must be dismissed on the basis of defendant's waiver of his right to appeal.

RAMIREZ, Presiding Justice.

DABNEY and McDANIEL *, JJ., concur.