Opinion
A113785
5-2-2007
THE PEOPLE, Plaintiff and Respondent, v. JOHN RUEBEN WILLIAMS III, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant and appellant John Williams pleaded guilty to one count of driving with a willful or wanton disregard for the safety of others while fleeing from a pursuing police officer (Veh. Code, § 2800.2, subd. (a)). He was sentenced to a two-year midterm in state prison. On appeal, defendant contends the trial court erred in failing to find a factual basis for the plea and erred in denying probation and imposing the midterm sentence. We find appellant waived his right to appeal the trial courts finding of a factual basis, and we affirm the courts imposition of the two-year sentence.
Vehicle Code section 2800.2, subdivision (a) provides, in relevant part: "If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year."
BACKGROUND
There was no preliminary hearing or trial, so the facts are taken from the probation report.
On November 18, 2005, around 4:40 p.m., Vallejo police officers noticed appellant driving a car without a front license plate. The officers attempted to get behind appellant, but appellant "sped up, turned into a parking lot, and ran through a red light" at speeds estimated at 45 to 55 miles per hour. The officers activated their lights and followed appellant as he turned onto Highway 80. Appellant crossed over two lanes and into the number one lane. He crossed the Carquinez Bridge, using the center divide shoulder to pass vehicles at speeds between 60 and 90 miles per hour. Appellant faced heavier traffic in Berkeley, and he slowed to 5 to 10 miles per hour before the police finally rammed appellants vehicle into the center divide and brought him to a stop. The pursuit lasted nearly 20 minutes and covered approximately 20 miles. Appellant was taken into custody and admitted he knew he had an outstanding warrant and evaded police because he did not want to go to jail.
On November 22, 2005, appellant was charged in count one with driving in willful and wanton disregard for the safety of others while fleeing from a pursuing police officer (Veh. Code, § 2800.2, subd. (a)), in count two with possession of a device for smoking a controlled substance (Health & Saf. Code, § 11364), and in count three with driving without a license (Veh. Code, § 12500, subd. (a)).
On January 23, 2006, appellant pleaded guilty to count one pursuant to a plea bargain, whereby counts two and three were dismissed, and it was agreed appellant would not be sentenced to more than three years in state prison. On April 18, 2006, the court sentenced appellant to the two-year midterm in state prison. This appeal followed.
DISCUSSION
Appellant contends the trial court erred because it failed to find a factual basis for his guilty plea, and the record failed to show such a basis. He also contends the trial court erred in denying probation and imposing the midterm sentence because the court relied on an incorrect aggravating factor and failed to consider all of the relevant mitigating factors. To the extent appellants counsel failed to object to these errors, appellant contends he was denied effective assistance of counsel. We find appellant waived his right to appeal the courts finding of a factual basis for the plea, and we affirm the courts imposition of the midterm sentence.
I. Waiver of the Right to Appeal
The People contend appellant should be procedurally barred from raising his claims on appeal because he waived the right to appeal as a part of his plea bargain. We address the validity and scope of his waiver and find it dispositive as to appellants first claim of error.
A. Validity of the Waiver
A criminal defendant may waive the right to appeal as part of a plea bargain if that waiver is knowing, intelligent, and voluntary. (People v. Panizzon (1996) 13 Cal.4th 68, 80.) "Waivers may be manifested either orally or in writing. [Citation.] The voluntariness of a waiver is a question of law which appellate courts review de novo." (Ibid.)
When appellant changed his plea to guilty pursuant to the plea bargain, he filled out a three-page document entitled "Waiver of Constitutional Rights and Declaration in Support of Defendants Motion to Change Plea." The document included the following statements, each one initialed by appellant: "Even though I will be convicted in this case as a result of my plea, I have the right to appeal the judgment and rulings of the court. [¶] I give up my right of appeal. [¶] The maximum punishment which the court may impose based upon this plea is 3 years prison. . . . [¶] The facts upon which this change of plea are based are: stipulated. . . . [¶] I declare that my attorney has read and explained this document to me, and I hereby freely and voluntarily, having full knowledge and understanding of the rights that I am giving up and the possible consequences which may result from my plea, do hereby request the Court to accept my new and different plea(s)."
Below appellants signature, appellants attorney signed a statement declaring "I have read and explained the foregoing document to my client . . . ; [¶] based upon my conversation with the defendant, I am satisfied that his/her plea of guilty is freely and voluntarily made; [¶] (s)he understands the consequences of his/her plea of guilty." The document also contained the trial judges signature and his findings that "the defendant has knowingly, intelligently, and voluntarily waived his/her rights and that there is a factual basis for the defendants plea."
At the hearing on the change of plea, appellant represented he read, initialed, and signed the waiver form, reviewed the form with his attorney, understood his rights, and was willing to give up his rights to enter his plea. We find this record demonstrates a valid waiver of the right to appeal. (See People v. Panizzon, supra, 13 Cal.4th 68, 80-84.) We next address the scope of the waiver.
In appellants reply brief, he addresses the Peoples claim of waiver by stating it is doubtful defense counsel believed appellant gave up his right to appeal because counsel filed a notice of appeal, and it is doubtful the judge understood appellant gave up the right to appeal because the judge granted a certificate of probable cause. Appellant offers no authorities in support of his argument that these facts refute a possible waiver. "This court is not required to discuss or consider points which are not argued or which are not supported by citation to authorities or the record." (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
B. Scope of the Waiver
Waiver " ` "is the [intentional] relinquishment of a known right after knowledge of the facts." [Citation.] " (People v. Vargas (1993) 13 Cal.App.4th 1653, 1662 (Vargas), quoting City of Ukiah v. Fones (1966) 64 Cal.2d 104, 107.) When deciding the scope of a general waiver of the right to appeal, we must ask if the issue on appeal was one falling within or outside the defendants contemplation and knowledge at the time he waived the right. (Vargas, supra, 13 Cal.App.4th at p. 1662.) A "general waiver of the right to appeal, given as part of a negotiated plea agreement, will not be construed to bar the appeal of sentencing errors occurring subsequent to the plea." (People v. Panizzon, supra, 13 Cal.4th at p. 85, fn. omitted.) The right of appeal should not be considered waived or abandoned except where the record clearly establishes it. (Vargas, supra, 13 Cal.App.4th at p. 1662.)
Appellants first claim of error on appeal is that the trial court failed to find a factual basis for appellants guilty plea, and there was in fact no basis. As set forth above, appellant initialed and signed a document when he changed his plea. On this document, appellant gave up his right to appeal, and, on the same page, appellant stipulated to the facts upon which his guilty plea was based. The next page contained the judges signature and the judges finding that there was a factual basis for the plea. At the hearing on appellants change of plea, appellant agreed he understood and was willing to give up his various rights and defense counsel confirmed the factual basis for the plea by stipulation. The stipulated factual basis for the plea was thus twice brought up, once in writing and once orally, at the same time appellant was agreeing to waive his right to appeal. The two were directly linked as a part of the plea bargain agreement. Therefore, the trial courts finding of a factual basis clearly was not a future error outside appellants contemplation and knowledge at the time the waiver was made. We conclude the scope of appellants waiver includes his challenge to the factual basis of his plea, and we will not reach the merits of this issue.
Appellants second claim on appeal is that the trial court erred in denying probation and imposing the midterm sentence based on a false assumption that appellants juvenile record consisted of "numerous felonies and misdemeanors" and a failure to properly consider all mitigating factors. The alleged error occurred at the time of sentencing on April 18, 2006, which was well after the waiver was made.
In Vargas, the court analyzed a defendants general waiver of his right to appeal. The court noted "The change of plea form simply states, `I waive my appeal rights. [The defendant] was not specifically informed that he would be also waiving possible future error." (Vargas, supra, 13 Cal.App.4th at p. 1662.) The court found "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 . . . as he has alleged on appeal." (Fn. omitted.) (Ibid.) Similarly here, the defendant made a general waiver of his right to appeal, initialing the statement "I give up my right of appeal." We conclude he did not waive the right to appeal an unforeseen future error such as the decisions to reject probation and impose the midterm prison sentence. We address appellants second claim of error on the merits.
II. The Trial Courts Denial Of Probation and Imposition of the Midterm Sentence
A. Denial of Probation
Granting or denying probation rests in the sound discretion of the trial judge. (People v. Sanchez (1987) 190 Cal.App.3d 224, 229.) Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant. (Cal. Rules of Court, rule 4.414.) Error by the trial court in relying upon improper factors in aggravation requires resentencing where the reviewing court determines that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Avalos (1984) 37 Cal.3d 216, 233.)
Rule 4.414 provides:
"Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant.
"(a) . . . Facts relating to the crime include:
"(1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime;
"(2) Whether the defendant was armed with or used a weapon;
"(3) The vulnerability of the victim;
"(4) Whether the defendant inflicted physical or emotional injury;
"(5) The degree of monetary loss to the victim;
"(6) Whether the defendant was an active or a passive participant;
"(7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur;
"(8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and
"(9) Whether the defendant took advantage of a position of trust or confidence to commit the crime.
"(b) . . . Facts relating to the defendant include:
"(1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct;
"(2) Prior performance on probation or parole and present probation or parole status;
"(3) Willingness to comply with the terms of probation;
"(4) Ability to comply with reasonable terms of probation as indicated by the defendants age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors;
"(5) The likely effect of imprisonment on the defendant and his or her dependents;
"(6) The adverse collateral consequences on the defendants life resulting from the felony conviction;
"(7) Whether the defendant is remorseful; and
"(8) The likelihood that if not imprisoned the defendant will be a danger to others."
During the sentencing hearing, the trial court noted that appellant was eligible for probation under the statute. The court then stated its findings, including that "the crime itself is more serious than other crimes in the same classification," and "one of the most egregious crimes the court has seen"; appellant was not terrified, but rather knew of his outstanding warrants from Tennessee and was doing his best to avoid detection and arrest; there were potentially hundreds of victims in this case due to appellants extremely dangerous conduct; appellant was an active participant; and, appellants "prior juvenile record is noted with numerous felonies and misdemeanors." The court concluded, "For those reasons probation will be denied."
Appellant argues the court was incorrect in stating appellants juvenile record contains "numerous felonies and misdemeanors" and if the court had realized its mistake, there was a reasonable chance it would have granted probation. We disagree. Appellant concedes he has three prior juvenile adjudications, but takes issue with the courts statement that his juvenile record contained "numerous felonies and misdemeanors." It is not unreasonable to use the term "numerous" to refer to the three prior incidents in appellants juvenile record. (See People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [finding three previous convictions to be "numerous"].) Therefore, the courts error, if any, was in its characterization of juvenile adjudications as "felonies and misdemeanors." To the extent the court mislabeled the adjudications as felonies and misdemeanors, we find the error to be harmless. The court specifically stated that the criminal record it was referring to was appellants juvenile record, and there is nothing to suggest the courts inclusion of appellants juvenile criminal history as a factor in its decision to deny probation would have changed based on the characterization. A prior record of juvenile criminal conduct is a proper factor for a court to rely on in denying probation. (Cal. Rules of Court, rule 4.414, subd. (b)(1).) Further, the court emphasized the serious nature and danger of appellants crime and noted appellants active role and therefore it is not reasonably likely the court would have granted probation even if appellant had no criminal record. (People v. Watson (1956) 46 Cal.2d 818, 836.)
B. Imposition of the Midterm Sentence
Appellant next contends the trial court erred in imposing the midterm sentence because it exaggerated the aggravating factor of appellants juvenile record and it failed to properly consider all mitigating factors. Specifically, appellant contends the court failed to consider appellants deprived childhood, his stable and happy marriage, his steady employment, his loyalty to and support of his wife and child, and the remorse he expressed for his actions. Because we found it was proper for the court to rely on appellants juvenile criminal record as a factor in denying probation, and any error in the courts reference to that record was harmless, we turn to the courts consideration of the mitigating circumstances.
California Rules of Court, rule 4.409 provides, "Relevant criteria enumerated in these rules must be considered by the sentencing judge, and will be deemed to have been considered unless the record affirmatively reflects otherwise." The judge is not required to discuss each mitigating factor independently or to indicate its reasons for rejecting a mitigating factor. (People v. Evans (1983) 141 Cal.App.3d 1019, 1022; People v. Reid (1982) 133 Cal.App.3d 354, 371.)
Here, the court read the probation report, which clearly discussed appellants steady employment, good marriage, family support, honesty, remorse for the offense, and the absence of his own father growing up. At the sentencing hearing, the court heard additional comments from defense counsel, who reiterated those positive aspects regarding appellants current family life and employment. The court also heard statements from appellants wife and appellant. The court explained its decision to deny probation, discussed, ante, and then stated, "And comparing the aggravating circumstances identified by Probation and the mitigating circumstances identified by [defense counsel], I have written them in the column of the Probation report on page four, his early plea, out of fear and desperation, that he made his appearances, the court believes that the aggravating and mitigating circumstances balance. The appropriate sentence is midterm in this case."
There is nothing contained in this record that affirmatively shows the court did not consider appellants personal situation. Although the court expressly referred to its balancing of certain of the circumstances in mitigation enumerated in appellants statement of mitigation, we disagree with appellants contention that this must mean the court failed to consider all other mitigating factors discussed in the probation report and in trial counsels statement.
The probation report contained the personal factors at issue here as they applied under California Rules of Court, rule 4.414 (Criteria affecting probation) and also as "Reasons for Recommendation." Appellants statement of mitigation also set forth the various personal factors as criteria affecting probation. The court impliedly considered all of these relevant factors and found they were outweighed by the aggravating factors the court listed when it denied probation. When the court then imposed the midterm sentence, it only articulated its additional balancing of the factors specifically set forth by appellant as "Circumstances in mitigation" under California Rules of Court, rule 4.423, that were not otherwise listed in the probation report. The court had presumably already considered, balanced, and rejected the personal factors supporting appellant in its consideration of probation, and it was not required to articulate the factors it had already evaluated.
See footnote 4 ante, California Rules of Court, rule 4.414, subdivision (b)(4).
Appellant relies on People v. Covino (1980) 100 Cal.App.3d 660 to support his argument that the court improperly failed to consider all mitigating factors. However, in Covino, the court specifically stated there were no mitigating factors, when in fact the record demonstrated several possible factors. (Id. at pp. 670-671.) Further, the Covino court relied on People v. Simpson (1979) 90 Cal.App.3d 919, 926-928 for its analysis. (Covino, supra, 100 Cal.App.3d at pp. 670-671.) "In [Simpson], the appellate court found error in failure to consider alcoholism as a mitigating factor, specifically noting the failure was affirmatively established because the trial court referred to the alcoholism as a possible aggravating factor. Numerous cases have limited Simpson to the situation where the record affirmatively shows the court did not consider alcoholism as a mitigating factor." (People v. Reid, supra, 133 Cal.App.3d 354, 370.) This record contains no such affirmative refusal to consider the relevant circumstances.
We find no error in the courts consideration of the aggravating and mitigating factors, and we affirm the courts imposition of the midterm sentence.
Because we find the court did not err, we do not reach appellants ineffective assistance of counsel claim.
DISPOSITION
The judgment is affirmed.
We concur.
JONES, P.J.
GEMELLO, J.