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Appeal From Unlawful Sentence May Require Certificate Of Probable Cause

by Gary McCurdy, CCAP Assistant Director

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On July 10, 2008, the California Supreme Court decided People v. Cuevas (2008) ___ Cal.4th ___ (S147510). In tandem with People v. Shelton (2006) 37 Cal.4th 759 and People v. Panizzon (1996) 13 Cal.4th 68, it is now clear that a certificate of probable cause is required in order to challenge on appeal the legality of the sentence imposed in a plea bargained case if either (a) there is an agreement that a specific sentence will be imposed (Panizzon), or (b) there is an agreement that the sentence will not exceed a certain term (i.e., a "lid" that sets a range of sentences that can be imposed) (Shelton), or (c) some counts or enhancements have been dismissed or reduced so that the remaining maximum exposure is less than what could have been imposed had the defendant been convicted as charged and sentenced to the maximum, even if the plea bargain does not limit the sentence to anything less than the potential maximum allowed for the charges of which the defendant has been convicted (Cuevas). The need for a certificate of probable cause is obviated only if the plea bargain specifically preserves the defendant's right to claim that the sentence is illegal or unauthorized.

In Cuevas, the defendant and the prosecution negotiated a no contest plea agreement in which several charges would be dismissed or reduced. The defendant agreed that the maximum possible sentence he could receive on the counts he pleaded no contest to was 38 years 8 months. It was not a lid. That was simply the most any defendant could be sentenced to on those counts. The Supreme Court recognized that the defendant's exposure but for the plea bargain would have been much greater (including a couple of life terms). The trial court explained the maximum sentence on the counts the defendant was pleading to was 38 years 8 months, and the defendant stated that he understood. That was in the context of advising the defendant of the maximum direct consequences, required whenever a defendant pleads guilty or no contest.

But the Supreme Court interpreted the colloquies as an agreement by the defendant that he could be sentenced up to 38 years 8 months as a result of the reduction in and dismissal of charges and enhancements, and that this understanding or agreement was part and parcel of the plea agreement. It stated, "The record here clearly reflects that defendant agreed to a maximum possible sentence of 37 years eight months, and belies the assertion that he was merely advised of the maximum sentence." After setting forth several discussions that took place among the court, the prosecution, and the defendant, the Supreme Court said, "By negotiating the reduction and dismissal of these charges, defendant necessarily understood and agreed that he faced a significantly reduced sentence of 37 years eight months. This maximum sentence was 'part and parcel' of the plea bargain the parties negotiated."

Previously, in People v. Shelton (2006) 37 Cal.4th 759, the Supreme Court concluded that a certificate of probable cause was required for the defendant to argue that Penal Code section 654 should have been applied to the sentence.

Shelton was an appeal following a guilty plea. He was charged with several counts. The plea agreement was that he would plead guilty to two counts, and that he would be sentenced to state prison for a term that would not be greater than three years eight months. The trial judge stated, "And the lid is three years eight months. Which means that the agreement is that I cannot sentence you to more than three years and eight months and you can argue for something less than three years and eight months. However, the sentence that I will impose will be a Penitentiary sentence."

At the sentencing hearing, defense counsel argued unsuccessfully that section 654 precluded a sentence for more than one of the two counts. No certificate of probable cause was sought in the course of filing the notice of appeal.

The Supreme Court concluded that the portion of the agreement that allowed the defendant to argue for a term less than three years eight months was ambiguous, as it could mean either (A) that the defendant could urge any ground supporting a lesser sentence, or (B) that he was permitted to argue for a lower sentence only by urging the trial court to exercise its sentencing discretion in favor of a lesser term. The Supreme Court chose interpretation (B), as the defendant did not expressly or impliedly reserve in the plea bargain a right to challenge the trial court's authority to impose the lid sentence. In other words, the defendant did not reserve the right to argue that the lid term would constitute an unlawful, unauthorized sentence. Thus, his challenge to the sentence based on section 654 was an attack on the plea, and a certificate of probable cause was therefore required. The Supreme Court distinguished Buttram, infra, in which the attack was on the exercise of discretion.

Panizzon, of course, was the seminal case that laid the groundwork for Shelton and Cuevas. In that case, the defendant had pleaded guilty with the specific agreement that a specific sentence would be imposed. That sentence was imposed. On appeal, he argued that it was disproportionate to the sentences imposed on codefendants, and that the sentence constituted cruel and unusual punishment. The Supreme Court held that this was an attack on the very sentence he agreed to as part of the plea bargain, and therefore constituted a challenge to his plea. A certificate of probable case was therefore required before he could challenge the legality of the sentence he had agreed to. (In addition, as an express part of his plea agreement, the defendant had specifically waived his right to challenge the sentence that he agreed to, and the Supreme Court found the waiver valid under the circumstances of that case. Thus, the Supreme Court would not even have had to reach the certificate of probable cause issue, but chose to anyway.)

People v. Buttram (2003) 30 Cal.4th 773 apparently remains good law, as it was cited in Cuevas for the proposition that a defendant does not need a certificate of probable cause to challenge the trial court's exercise of discretion in choosing the appropriate sentence within the range agreed on by the parties (i.e., in a case where the plea bargain specified only a "lid" on the sentence rather than a particular sentence). Buttram's acknowledgment that such claims rarely have merit is even truer now that the Determinate Sentence Law has eliminated the presumption that the middle term must be imposed in the absence of a finding that aggravating or mitigating circumstances outweigh the other. Of course, there still needs to be an objection by trial counsel or even that weak issue is forfeited. (People v. Scott (1994) 9 Cal.4th 331.)

As a result, here is the current status of the law (as it pertains to appeals claiming sentence error following guilty pleas):

  • If there is no plea agreement AND no sentence agreement, People v. Lloyd (1998) 17 Cal.4th 658 stands for the proposition that no certificate of probable cause is required to challenge the sentence imposed.

  • Under People v. Panizzon, supra, if the plea bargain concretely specifies a particular term, and that term is imposed by the trial court in accordance with the plea bargain, a certificate of probable cause is required for any appellate review of that sentence.

  • Under People v. Buttram, supra, if the plea bargain offers a range for the judge to choose from, no certificate of probable cause is required to challenge the judge's exercise of discretion.

  • Under People v. Shelton, supra, if the plea bargain offers a range for the judge to choose from, a certificate of probable cause is required to challenge the judge's authority to impose a particular sentence (i.e., to challenge the lawfulness of the sentence), in the absence of defendant's reservation of that right in the plea bargain.

  • Under People v Cuevas, supra, if the plea bargain results in the dismissal of or reduction in charges or enhancements, and the new maximum sentence exposure is less than what could have been imposed under the original charges and enhancements, a certificate of probable cause is required to challenge the judge's authority to impose a particular sentence (i.e., to challenge the lawfulness of the sentence), in the absence of defendant's reservation of that right in the plea bargain. And that is true even if there is no limitation on the sentence other than the maximum that could be imposed for the charges and enhancements the defendant is convicted of.

    (Note also that Rules of Court, rule 4.412(b) states, "By agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654's prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record." Because of its disposal on certificate grounds, the Supreme Court did not determine whether rule 4.412(b) applies when the plea bargain places a lid on the sentence rather than specifies a particular sentence (Shelton), or whether it applies under the type of plea bargain present in Cuevas.

In order to give the defendant the maximum chance of being able to have his or her sentence reviewed on appeal, trial counsel should consider the following steps:

  • In every plea bargain in which sentencing is an element, put in language that makes it clear that the defendant expressly agrees only to a LAWFUL, AUTHORIZED sentence. Although deputies district attorney may be reluctant for defendants to add fudge language in plea agreements, it should not be objectionable for a defendant to express that he or she agrees only to a lawful, authorized sentence.

  • In every plea bargain in which the dismissal or reduction of counts or enhancements reduces the defendant's sentencing exposure, when the trial court explains the maximum possible consequences that could be imposed (which, of course, is always required under Bunnell v. Superior Court (1975) 13 Cal.3d 592), the defense response should be that the defendant acknowledges that the court is stating what it believes to be the maximum sentence allowable, but the defendant is not waiving any right to challenge any portion of the sentence that might be illegal or unauthorized.

  • In view of Panizzon, Shelton, and Cuevas, counsel should be hesitant to rely on Buttram to save an appeal of the sentence in the absence of a certificate of probable cause. One should attempt to secure a certificate of probable cause whenever filing a notice of appeal from a guilty plea where there has been some component involving the sentence or dismissal or reduction of counts or enhancements as part of the plea bargain. It is not because Buttram is not good law, because it is. But Buttram covers only review of the exercise of discretion, which rarely results in relief. That is not enough protection, given the reality that trial counsel is not likely to KNOW what issues surface when an appellate lawyer reviews the transcripts of all the proceedings and compares the agreements and actions to the law, all in the relative calm and quiet of an office where that is the only matter requiring his or attention. The statement required (under oath or penalty of perjury) of the defendant in support of his or her request for a certificate of probable cause need not be lengthy. As a sample, it could be as simple as, "I am appealing the sentence imposed in this case as improper, unlawful, or unauthorized. The plea bargain involved a limitation on the sentence that could have been imposed but for the plea bargain. Under People v. Panizzon (1996) 13 Cal.4th 68, People v. Shelton (2006) 37 Cal.4th 759, and People v. Cuevas (2008) ___ Cal.4th ___ (S147510), this challenge may affect the validity of the plea within the meaning of Panizzon, Shelton, Cuevas, Penal Code section 1237.5, and rule 8.304(b)(1) of the Rules of Court."

Keep in mind that the trial court is required to grant or deny the application within 20 days. (Rule 8.304(b)(2).) Trial courts have been directed to employ a very generous standard in ruling on requests for a certificate of probable cause. In this regard, "[i]t is not the trial court's responsibility to determine if there was an error in the proceedings… Thus, if the statement submitted by the defendant in accordance with section 1237.5 presents any cognizable issue for appeal which is not clearly frivolous and vexatious, the trial court abuses its discretion if it fails to issue a certificate of probable cause. [Citations omitted.]" (People v. Holland (1978) 23 Cal.3d 77, 84.) In the event that a trial court refuses to issue a certificate of probable cause (whether by denying the request, or by failing to act on it within 20 days), the propriety of the court's ruling is reviewable by way of a petition for a writ of mandate. (See Holland, supra, 23 Cal.3d at p. 84, fn. 6.) Writs are the responsibility of trial counsel, but it should be fairly easy to create a template that can be easily assembled on the rare occasions that a superior court judge either fails to act or denies the certificate of probable cause.

 

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