Filed 1/23/20 P. v. Williams CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

ROYCE WILLIAMS,

Defendant and Appellant.

A156010

(Solano County

Super. Ct. No. VCR231721)

I. OVERVIEW
II.
Royce Williams appeals the imposition of a two-year state prison sentence pursuant to his pleas of nolo contendere. Penal Code section 1237.5 requires a defendant to obtain a certificate of probable cause prior to initiating an appeal from a conviction based on a plea of guilty or nolo contendere. As defendant did not obtain a certificate of probable cause, we dismiss the appeal pursuant to section 1237.5.

III. BACKGROUND
IV.
On October 1, 2018, defendant pleaded nolo contendere to one count of stalking (§ 646.9, subd. (a)), four counts of violating a restraining order (§ 273.6, subd. (a)), and one count of vandalism (§ 594, subd. (b)(2)) pursuant to a court offer.

During defendant’s preliminary hearing on that date, the trial court made defendant a plea offer that included a grant of probation. In making the plea offer, the court told defendant: “[I]f you don’t do the hard work necessary to make this work, you’ll be going to prison anyway[,] . . . that’s where I’m coming from when I make the [plea] offer.” The court asked defendant: “You hear what I’m saying?” Defendant replied that he did. The court then called a recess to permit defendant time to consider the court’s offer of probation.

During the break, defendant filled out a written waiver of rights form, initialing to indicate his understanding that “[t]he maximum punishment which the court may impose based upon this plea is 8 years.” Further, defendant initialed to indicate that he understood and agreed that if he “commit[ed] a new crime, or violate[d] any terms of [his] release before judgment and sentence,” he could be sentenced to an eight-year “maximum term of imprisonment or incarceration”; he further acknowledged that in such a circumstance, he “w[ould] not be allowed to withdraw [his] plea.” The waiver of rights form includes this language in bold, underlined, capitalized, and indented text.

The court reconvened and verbally confirmed that defendant had read, understood, and initialed the waiver of rights form before asking: “[Y]ou understand the maximum confinement time, I have made that agreement, but the maximum confinement time is eight years if you were to ultimately violate probation and be sentenced, right?” Defendant replied: “Right.” The court asked if defendant understood that “if you violate that restraining order again, if you do anything other than respect your family, then I don’t have to worry about whether or not you have a job, I put you in jail” with the “knuckleheads” there. Defendant indicated that he understood. The court specifically reminded him that the court’s promise to grant him probation was “enforceable” only if defendant abided by all laws and the restraining order: “There’s a restraining order in place. If you violate it tomorrow, all bets are off. You’re still found guilty now but the promise to give you probation, let you keep your job, don’t apply.” Defendant pleaded nolo contendere to all counts.

In a subsequent hearing, the court found that defendant violated the “Cruz[ ] admonition” by violating the restraining order in November 2018, after his plea but prior to his sentencing hearing. The court found that “under Cruz,” and based upon the totality of the circumstances, it was appropriate to sentence defendant to the midterm of two years for stalking and to concurrent terms of one year on each of the remaining counts. Defendant did not obtain a certificate of probable cause prior to appealing.

V. DISCUSSION
VI.
A. Section 1237.5
B.
Section 1237.5 provides that a defendant may not appeal “a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation” unless the defendant files a written statement with the trial court “showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings” and the trial court executes and files a certificate of probable cause.

California Rules of Court, rule 8.304 provides an exception to the section 1237.5 certificate requirement “if the notice of appeal states that the appeal is based on . . . [g]rounds that arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(1)&(4)(B).) In determining whether an appeal falls under the rule 8.304 exception, courts look not only to the defendant’s stated grounds for appeal but also to the substance of the appeal. (People v. Fox (2019) 34 Cal.App.5th 1124, 1129–1130, review granted July 31, 2019, S256298 (Fox); People v. Buttram (2003) 30 Cal.4th 773, 781–782 (Buttram) [“ ‘the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5’ ” (italics omitted)].) Thus, even when a defendant alleges a breach of a plea agreement or challenges the agreement on grounds covered by California Rules of Court, rule 8.304, section 1237.5 applies if the challenge goes to the validity or substance of the appeal, or to “an aspect of the sentence to which the defendant agreed as an integral part of a plea agreement.” (People v. Johnson (2009) 47 Cal.4th 668, 678 (Johnson); Fox, supra, 34 Cal.App.5th at pp. 1129–1130.)

Defendant asks us to interpret the terms of his plea as providing for a county jail sentence but not a state prison sentence upon breach of the conditions of the indicated sentence. To this end, defendant asserts that “[a] state prison sentence was not stated by the court as a possible consequence of a breach by defendant.” Defendant further asserts that he “raises only issues pertaining to the sentencing and that do not go to the validity of the plea itself,” and was therefore not required to obtain a certificate of probable cause prior to appealing. We disagree.

To support his argument that section 1237.5 does not apply, defendant directs us to two cases with differing outcomes: People v. Rabanales (2008) 168 Cal.App.4th 494 (Rabanales) and People v. Carr (2006) 143 Cal.App.4th 786 (Carr). Both Rabanales and Carr appealed sentences resulting from plea agreements without first obtaining certificates of probable cause. (Carr, at pp. 788, 793; Rabanales, pp. 498–499.) Rabanales appealed from the trial court’s imposition of a seven-year sentence without a jury trial after he violated the terms of his plea agreement, alleging that he had “expressly declined to waive his right to a jury trial.” (Rabanales, at pp. 498–500.) With little discussion of the terms of the plea agreement, the court accepted that Rabanales sought to enforce the plea agreement, rather than to invalidate it. (Id. at pp. 498–501.) Accordingly, Rabanales could appeal without a certificate of probable cause. (Id. at p. 501.) In Carr, on the other hand, the defendant challenged the imposition of a nine-year prison sentence after he violated the terms of the plea agreement, even though that agreement expressly provided for a nine-year maximum sentence. (Carr, at p. 793.) Unlike Rabanales, Carr was required to have obtained a certificate of probable cause because, “[a]lthough defendant does not purport to challenge the validity of his guilty plea, he is challenging the sentence which he negotiated as part of the plea bargain. Thus, he attacks an integral part of the plea, which requires compliance with the probable cause certificate requirements of section 1237.5.” (Id. at p. 794.)

Contrary to defendant’s assertions, the situation here is analogous to Carr, not Rabanales. Defendant denies that he challenges the validity of the plea agreement, arguing that he instead alleges a violation of the plea agreement. But in determining whether section 1237.5 applies, we look to both the defendant’s claimed grounds for appeal and to the substance of the appeal. (Fox, supra, 34 Cal.App.5th at pp. 1129–1130; Buttram, supra, 30 Cal.4th at p. 782; Carr, supra, 143 Cal.App.4th at p. 794.)

Defendant’s appeal amounts to an attack on an integral, agreed-upon aspect of his plea—namely, the possible imposition of an eight-year maximum term of “imprisonment or incarceration.” (See Johnson, supra, 47 Cal.4th at pp. 678–679; Carr, supra, 143 Cal.App.4th at p. 794.) Defendant had ample notice that a state prison sentence was a possible consequence for breaching the terms of the court’s plea offer. First, the court told defendant that if he failed to “do the hard work necessary to make this work, [he would] be going to prison.” Moreover, in defendant’s written waiver of rights form, he initialed to indicate his understanding that, if he violated “any terms of [his] release,” the court could impose up to an eight-year “term of imprisonment or incarceration.” Although the court told defendant that he could be sent to “jail” with the “knuckleheads” there, the court never suggested that time in county jail was the only possible consequence—to the contrary, the court warned defendant that if he violated the restraining order, “all bets [we]re off.” Defendant thus challenges the sentence for which he negotiated and thereby attacks an integral part of the plea. Doing so “requires compliance with the probable cause certificate requirements of section 1237.5.” (Carr, at p. 794; see also Johnson, at pp. 678–679; § 1237.5, subd. (a).) Accordingly, we dismiss the appeal.

C. Principles of Contract Law
D.
Even if we did not dismiss pursuant to section 1237.5, we would reject defendant’s claim on the merits because the waiver of rights form signed by the defendant and trial court made clear that a state prison sentence was a potential consequence for violating any conditions of release. (See People v. Shelton (2006) 37 Cal.4th 759, 767 [“‘ A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles”]; see also State of California v. Continental Ins. Co. (2012) 55 Cal.4th 186, 195 [“If contractual language is clear and explicit, it governs’ ”].) The foregoing facts and applicable principles of contract law confirm that the plea agreement unambiguously permitted the court to impose a state prison sentence of up to eight years, notwithstanding the court’s occasional use of the generic term “jail” during the course of the plea colloquy.

Moreover, defendant’s interpretation of the terms of his plea is nonsensical. Defendant pled nolo contendere to felony stalking in violation of section 646.9 subd. (a). Section 646.9, subdivision (b), states that “[a]ny person who violates [section 646.9] subdivision (a) when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior described in [section 646.9] subdivision (a) against the same party, shall be punished by imprisonment in the state prison for two, three, or four years.” (Italics added.) Defendant was subject to a temporary restraining order issued in April 2018 and set to expire in April 2021. When defendant violated that restraining order in November 2018, any non-probationary disposition was governed by section 646.9, subdivision (b), which specifically prescribes punishment “by imprisonment in the state prison.” (Ibid.) In arguing that his plea did not provide for the very sentence provided for by the relevant statute, defendant effectively contends that the court was required to grant him a term of probation with a condition of county jail even if he violated the terms of his release prior to judgment and sentence. This contention ignores the court’s statement that its “promise that I would put you on probation” was “enforceable only if [defendant] d[id] the following things: You have to obey all laws in the meantime. There’s a restraining order in place. If you violate it tomorrow, all bets are off. You’re still found guilty now but the promise to give you probation, let you keep your job, don’t apply.” We reject defendant’s self-serving interpretation of the plea, as it ignores the governing statute as well as the express words and logic of the court’s plea offer.

E. Cruz Waiver
F.
Finally, we address defendant’s argument that he should be permitted to withdraw his plea because he did not enter into a plea agreement with the court pursuant Cruz, which held that a defendant may waive the right to withdraw his guilty plea if he is “fully advised” of that right. (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.) If a defendant is fully advised of his rights, “the trial court may withdraw its approval of the defendant’s plea and impose a sentence in excess of the bargained-for term” if the defendant violates a condition of his plea. (Ibid.) A Cruz waiver must be “obtained at the time of the trial court’s initial acceptance of the plea, and it must be knowing and intelligent.” (Ibid.)

Defendant claims that he did not enter into a Cruz agreement. This contention is meritless. As noted previously, defendant signed a written waiver of rights form which specifically stated—in text that was capitalized, bolded, underlined, and indented from the remainder of the form—that defendant understood that if he violated “any terms of [his] release before judgment and sentence, [his] plea will become an ‘open plea’ to the court, [he] w[ould] not be allowed to withdraw [his] plea, and [he] may be sentenced up to the maximum term of imprisonment or incarceration specified in Part 7 [eight years].” This plainly served as a Cruz waiver, as the form fully advised defendant of the rights he was choosing to waive and defendant initialed to indicate that he gave up those rights. Defendant, defendant’s attorney, and the trial court judge all signed the form, affirming that defendant had been fully informed of his rights and of the consequences of his plea.

Nothing in the record indicates that defendant’s acceptance of the plea’s terms was other than knowing and intelligent. Indeed, at sentencing, defense counsel did not argue that defendant failed to understand the terms of the plea; counsel expressly stated that the purpose of the hearing was to determine if the Cruz waiver had “come into play.” In sum, it is clear that defendant waived his Cruz protections when he signed the written waiver of rights form, and that the court therefore had authority to sentence him up to a maximum of eight years in state prison.

VII. DISPOSITION
VIII.
We dismiss the appeal pursuant to section 1237.5.

_________________________

BROWN, J.

WE CONCUR:

_________________________

POLLAK, P. J.

_________________________

STREETER, J.

People v. Williams (A156010)