Monday, March 11, 2019
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Court of Appeal:
Plea Bargain Bars Invoking Later Ameliorative Statute
Fifth District Opinion Conflicts With One Filed Jan. 25 by Fourth District’s Div. One; That Opinion, Justice Peña Asserts, Contravenes Supreme Court Decision
By a MetNews Staff Writer
The Fifth District Court of Appeal on Friday created a split among the districts by holding that a defendant who is sentenced pursuant to a plea bargain, and waives his right of appeal, may not later invoke a recently enacted statute which would reduce the penalty.
Justice Rosendo Peña Jr. wrote:
“This case recalls the proverb, ‘You can’t have your cake and eat it too.’ The question presented: Where a defendant negotiates a plea for a stipulated sentence and waives the right to appeal the sentence, may the defendant take advantage of a favorable sentencing law enacted thereafter (which may otherwise apply retroactively under ordinary circumstances)? We think not.”
The opinion rejects the contention by defendant Deanna Twilla Barton that her stipulated sentence of eight years and eight months for drug offenses, imposed on Oct. 23, 2017, should be shaved by six years, reflecting invalidation of her two three-year enhancements, under legislation effective Jan. 1, 2018.
Fourth District’s Decision
Peña noted that this conflicts with a Jan. 25 decision of the Fourth District’s Div. One in People v. Wright. There, the appellant, Justin Michael Wright, pled guilty to transporting a controlled substance and admitted a prior conviction, which triggered a three-year enhancement. Under the same enactment invoked by Barton—S.B. 180—Wright’s enhancement was no longer authorized as of Jan. 1, 2018.
In an opinion vacating Wright’s sentence and remanding for a new sentencing, Justice Gilbert Nares wrote:
“Wright’s waiver of his right to appeal his stipulated sentence cannot be construed as applying to a sentencing error of which he had no notice when he signed the plea agreement. Nothing in the record suggests that the parties considered or addressed the possibility that future legislation might abolish the required three-year enhancement for Wright’s prior felony drug conviction.”
Nares declared:
“If parties to a plea agreement want to insulate the agreement from future changes in the law they should specify that the consequences of the plea will remain fixed despite amendments to the relevant law.”
High Court Decision
Rejecting Nares’s reasoning, Peña said “the breadth of the Wright holding conflicts” with the California Supreme Court’s 1996 decision in People v. Panizzon which, he wrote, is “controlling and dispositive.”
There, a defendant agreed to a specified prison term waiving his right to appeal. He then appealed, arguing that his sentence was impermissibly disproportionate to that of his co-defendants. The Court of Appeal affirmed; the Supreme Court reversed, directing that the Court of Appeal dismiss the appeal.
Then-Justice Marvin Baxter wrote:
“Not only did the plea agreement in this case specify the sentence to be imposed, but by its very terms the waiver of appellate rights also specifically extended to any right to appeal such sentence. Thus, what defendant seeks here is appellate review of an integral element of the negotiated plea agreement, as opposed to a matter left open or unaddressed by the deal.”
He said that “both the length of the sentence and the right to appeal the sentence are issues that cannot fairly be characterized as falling outside of defendant’s contemplation and knowledge when the waiver was made.”
Nares’s Opinion Questioned
In Friday’s decision, Peña said:
“Under Panizzon, a waiver of the right to appeal a stipulated sentence is sufficient to bar a claim of “‘future sentencing error,’” i.e., a claim that events occurring subsequent to the waiver have altered the legality of the sentence. According to Wright, it is no longer enough to specifically waive the right to appeal a stipulated sentence; parties must now expressly identify the type of sentencing error contemplated by the waiver.
“Furthermore, Wright dismisses out of hand the possibility of an implied understanding that waiving the right to appeal a stipulated sentence necessarily includes a claim based on subsequent changes in the law. The very purpose of negotiating a waiver of the right to appeal a sentence is to preclude any future claims of sentencing error.”
The appeal, Peña announced, was dismissed.
The case is People v. Barton, F076599.
Wright was alluded to in an opinion handed down Wednesday by Div. Six of this district’s Court of Appeal. It dismissed the appeal of a woman who stipulated to an 18-year sentence, then appealed based on 2018 legislation, S.B. 1393, which she argued, gives the trial court discretion to strike her five-year enhancement.
The appeal was dismissed based on appellant Gloria Nyleen Kelly’s failure to obtain a certificate of probable cause, required where a defendant challenges a sentence to which he or she consented.
Justice Kenneth Yegan wrote:
“Unlike Wright, appellant did not request or obtain a certificate of probable cause. Pursuant to principles of stare decisis we are bound to follow the Supreme Court’s holding in Panizzon….S.B. 1393 does not overrule Panizzon or the certificate of probable cause statute….In Wright,…the change in the law mandated that the three-year enhancement be stricken because it was ‘unauthorized.’…Here, the change in the law (S.B. 1393) vests the trial court with the discretion to strike one or both five-year enhancements, but it is not mandatory.”
That case is People v. Kelly, 2019 S.O.S. 1063.
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