People v. Aparicio
The PEOPLE, Plaintiff and Respondent, v. LUIS RAMON APARICIO, Defendant and Appellant
- Area
- criminal
- Panel
- O'Rourke (author)
Analysis
The trial court accepted a plea agreement in a subsequent case where the defendant waived his right to appeal his prior convictions in exchange for the dismissal of two prior serious felony allegations. The Court of Appeal granted the People's motion to dismiss the appeal, ruling that the waiver was knowing, intelligent, and voluntary, and enforceable despite being made in a different case.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Enforceability of waiver of right to appeal made in a subsequent case“Although we are aware of no California reported case that specifically addresses whether a defendant can waive the right to appeal a previous conviction as part of a plea bargain in a later case, we see no reason to hold that such a waiver is unenforceable.” | de novo | correct | agree with court agree with court |
Authorities
- relied: People v. Panizzon (1996) 13 Cal.4th 68 — A defendant may waive the right to appeal as part of a plea agreement, and such waivers must be knowing, intelligent, and voluntary.
- relied: People v. Vargas (1993) 13 Cal.App.4th 1653 — The right to appeal is a statutory right, not a constitutional one, and can be waived by a defendant.
- relied: Blalark v. State (1996) 112 Nev. 795 — Courts in other jurisdictions have enforced waivers of appeal rights made in subsequent cases.
- relied: Freeman v. State (1995) 913 S.W.2d 714 — Courts in other jurisdictions have enforced waivers of appeal rights made in subsequent cases.
The appellate opinion: sound — The opinion correctly applies the standard from People v. Panizzon to determine that the waiver was knowing, intelligent, and voluntary based on the detailed colloquy in the record. It addresses the novel issue of cross-case waivers by citing persuasive authority from other jurisdictions, which is a defensible approach in the absence of controlling California precedent.
How this analysis was made · dispute it
unusual dispositionAfter a jury convicted Aparicio of vehicle burglary, attempted vehicle taking, paraphernalia possession and resisting an officer, the trial court found two strike priors true and sentenced him to 27 years to life; in a later prosecution arising from his courtroom outburst, Aparicio pled guilty and expressly waived his right to appeal the first case in exchange for dismissal of the strike allegations. On the People's motion, the Court of Appeal held the waiver knowing, intelligent and voluntary and enforceable even though made in a subsequent case, and dismissed the appeal without reaching the merits.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Enforceability of Aparicio's waiver of the right to appeal the instant convictions, made as part of a plea bargain in the later attempted-escape case (People's motion to dismiss appeal)“The record clearly establishes that Aparicio, as part of his plea bargain in the subsequent attempted escape case, knowingly, intelligently and voluntarily waived his right to bring the instant appeal.” | de novo | correct | agree with court Panizzon squarely holds a defendant may waive the statutory right to appeal as part of a plea bargain and that voluntariness is reviewed de novo. The lengthy colloquy quoted in the opinion shows the court explained the 27-to-life consequence, corrected the parole-eligibility advisement, confirmed the defendant had consulted counsel and had no questions, and counsel joined in the waiver. Nothing in Panizzon or Vargas limits waivers to the same case, and the court reasonably relied on out-of-state authority enforcing cross-case waivers. The judge's description of the likely consecutive 27-to-life exposure was an accurate statement of consequences, not coercion. |
Admission of late-disclosed fingerprint evidence, alleged suppression of a material witness's identity, and denial of a Marsden hearing“In the instant appeal, Aparicio contends (1) the court committed prejudicial error by admitting fingerprint evidence that was not disclosed to the defense until the middle of trial” | unclear | not reached | unsure Because the appeal was dismissed on the basis of the valid waiver, the court did not address the merits of these contentions, and the opinion contains no record on them from which to form a view. |
Authorities
- relied: People v. Panizzon (1996) 13 Cal.4th 68 — A defendant may waive the right to appeal as part of a negotiated plea; the waiver must be knowing, intelligent and voluntary, and voluntariness is a question of law reviewed de novo.
- relied: People v. Vargas (1993) 13 Cal.App.4th 1653 — The right to appeal a criminal conviction is statutory only, so a defendant may expressly waive it as part of a plea agreement.
- relied: Blalark v. State (1996) 112 Nev. 795 — Out-of-state authority enforcing a waiver of the right to appeal a prior conviction made in a plea bargain in a later case.
- relied: Freeman v. State (1995) 913 S.W.2d 714 — Texas authority enforcing a plea-bargained waiver of appeal of a prior conviction.
The appellate opinion: sound — The court applied the controlling Supreme Court standard from Panizzon, quoted the full waiver colloquy to show the waiver was informed and uncoerced, and candidly acknowledged the absence of California authority on cross-case waivers before relying on persuasive out-of-state decisions. The result follows directly from the principle that a defendant who bargains away a statutory appeal right in exchange for dismissal of strike allegations must be held to the bargain.
Opinion — O'Rourke
Opinion
O’ROURKE, J.A jury found defendant Luis Ramon Aparicio guilty of burglary of a vehicle (Pen. Code, 1 § 459); attempted unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)); possession of paraphernalia used for narcotics (Health & Saf. Code, § 11364) and resisting an officer (§ 148, subd. (a)). The jury found Aparicio not guilty of petty theft (§ 484). The court found to be true allegations that Aparicio had two prior serious and violent felony convictions (§ 667, subds. (b)-(i)) and two prior prison term convictions (§ 667.5, subd. (b)). The court sentenced Aparicio to 27 years to life in state prison.
When the court clerk announced the verdict on the vehicular burglary charge, Aparicio reacted violently and had to be restrained by courtroom bailiffs. As a result of that altercation, Aparicio was charged in superior court case No. SCD130314 with felony attempted escape from custody with force (§ 4532, subd. (b)); two counts of resisting an officer and attempting to remove a firearm from an officer (§ 148, subd. (d)); three counts of battery on a peace officer (§ 243, subd. (b)); and resisting an executive officer (§ 69). In addition, two prior serious and violent felony convictions and two prior prison term convictions were alleged against Aparicio.
Aparicio entered into a plea agreement in the second case. Under that agreement he pled guilty to the charges and waived his right to appeal his convictions in the instant case in exchange for the dismissal of the two “strike” priors, resulting in a sentence of four years in state prison to be served consecutively to the term imposed in the instant case. 2 Seeking to enforce the plea agreement, the People have filed a motion in this court to dismiss the instant appeal. We grant the People’s motion and dismiss the appeal.
*289 Discussion
“ ‘When a guilty [or nolo contendere] plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.’ . . . Just as a defendant may affirmatively waive constitutional rights to a jury trial, to confront and cross-examine witnesses, to the privilege against self-incrimination, and to counsel as a consequence of a negotiated plea agreement, so also may a defendant waive the right to appeal as part of the agreement.” (People v. Panizzon (1996) 13 Cal.4th 68, 80 [51 Cal.Rptr.2d 851, 913 P.2d 1061].) As the Court of Appeal noted in People v. Vargas (1993) 13 Cal.App.4th 1653, 1659 [17 Cal.Rptr.2d 445]: “The right to appeal a criminal conviction has no roots in the United States or California Constitutions and is a statutory right only. [Citations.] 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 . . . .”
“To be enforceable, a defendant’s waiver of the right to appeal must be knowing, intelligent, and voluntary. [Citations.] 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.” (People v. Panizzon, supra, 13 Cal.4th at p. 80.)
After Aparicio’s counsel in the subsequent case informed the court that Aparicio was willing to waive his right to appeal in the instant case, the following exchange occurred:
“The court: Now I have been advised by your attorney, and you’ve heard [your attorney] represent to me, that at this point in time you are prepared to waive your right to appeal in SF113576, a case in which you have been sentenced to twenty-seven years to life. Is that what you want to do?
“[Aparicio]: Yes, sir. Yes.
“The court: So you understand that that sentence will remain intact and that that will be your sentence because you’re giving up your right to appeal. Do you understand that?
“[Aparicio]: Yes, sir. Can I address you before you sentence me again?
“The court: Yes. The answer to that question is yes. I just want to make sure you understand that by giving up your right to appeal in the South Bay *290 case you will serve the sentence of twenty-seven years to life before you’ll be eligible for parole. Do you understand that?
“[Aparicio]: Yeah.
“The court: All right. Now, do you have any questions about that?
“[Aparicio]: Kind of. No. That’s okay.
“The court: Well, if you’ve got a question, sir, I mean it’s very important. As we discussed . . . and you should be aware that a twenty-five, in this case a twenty-seven year-to-life sentence will probably mean that you are going to serve between fifteen and twenty years before you’re eligible for parole.
“[Aparicio]: Yeah.
“The court: So it’s a significant matter, and I want to make sure that you and [your counsel] have had enough time to discuss it. Is there anything else you would like to discuss with him?
“[Aparicio]: No sir.
“[The prosecutor]: Your honor, just to correct the record, I believe there’s case law under a twenty-five-[year-]to-life case you actually serve an actual twenty-five years before you are eligible for parole. So I think we should advise Mr. Aparicio that he will be actually be serving twenty-five years before he is eligible for a parole date.
“The court: Well, there’s some disagreement on that, but I think out of an abundance of caution you’re absolutely correct. So you understand, then, and I don’t have anything to do with that case, but I just want to make sure you understand by giving up your appeal rights, that is the sentence you’ll serve. And as the People have just disclosed, you’re going to serve twenty-five years before you’re eligible for parole. Do you understand that?
“[Aparicio]: Yeah. I feel like an awkward situation, you know.
“The court: Certainly it’s awkward.
“[Aparicio]: You know, I was kind of like, you know, I was explaining to my lawyer that, you know, I was put in a situation with the case, you know, the case I was in, you know, and then I feel kind of bad because I got into a little—I got into a scuffle behind that case with the marshals, you know.
*291 And, you know, I really regret that, you know. You know, that I even, you know, intended.
“The court: That’s the reason we need to clarify this, Mr. Aparicio, because as a practical matter,—
“[Aparicio]: ’Cause it was just a, you know,—
“The court: Well, it was more than that. Let’s call it what it is. If you decide to go to trial, the likelihood is you’re going to be convicted of a forceful effort to escape. If the jury of citizens that looks at that videotape [of the courtroom altercation] looks at it the way I, your lawyer, and the district attorney all looked at it, you will end up with another twenty-seven-year-to-life sentence that by law must be consecutive to the twenty-seven-year-to-life sentence that is already in existence. So if you’re not successful on your appeal, in essence you will spend the rest of your natural life in prison.
“[Aparicio]: Yes sir.
“The court: Now, what’s being offered to you is an offer that clears up the whole thing because there would be no appeal to your lower court sentence which is twenty-seven years to life. I’ll set the term on the escape consecutive, and we will argue what the number is. I’ve already told you the maximum number is eight, and the minimum number is two. But that will be served after you serve the twenty-seven-years-to-life case.
“[Aparicio]: Yes sir.
“The court: All right. Now, we have to start over again. Do you understand that I’m willing to allow you on this case, the escape case, to go back to square one and start over again, in other words, go to trial?
“[Aparicio]: Yes sir, I understand that.
“The court: Do you understand that if you go along with the plea agreement that is being offered by the People today, you will serve the twenty-seven-year-to-life sentence before you serve whatever years I give you here? Do you understand that?
“[Aparicio]: Yes sir.
“The court: All right. Do you have any more questions you would like to either ask me, the district attorney, or the district attorney or your lawyer?
*292 “[Aparicio]: No, sir.
“The court: All right. Do you, then, at this time formally give up your right to appeal your conviction and sentence in case number SF113576?
“[Aparicio]: Yes, sir. Three strikes, yes, sir.
“The court: The South Bay case that you are serving twenty-seven years to life on,—
“[Aparicio]: Yes sir.
“The court: —Do you give up your right to appeal?
“[Aparicio]: Yes, sir.
“The court: All right. People satisfied or are there additional areas that you would like me to cover?
“[The prosecutor]: No, your honor. I think we’re satisfied with that.
“The court: Counsel, do you join with your client in the waiver of appeal as a condition of the plea bargain in this case?
“[Defense counsel]: Based on all the facts and circumstances of both cases, your honor, the court’s statements to my client, and my client’s independent decision to withdraw his rights to an appeal in the South Bay case, yes.”
We set forth this relatively lengthy exchange because it shows that Aparicio’s “independent decision” to waive his right to appeal his convictions in the instant case was not coerced, and that the court went to great lengths to make sure Aparicio fully understood the consequences of the waiver. Aparicio suggests the waiver is unenforceable because it was made in a subsequent case rather than in the instant case. Although we are aware of no California reported case that specifically addresses whether a defendant can waive the right to appeal a previous conviction as part of a plea bargain in a later case, we see no reason to hold that such a waiver is unenforceable. We note that courts in other jurisdictions have enforced such waivers. (See, e.g., Blalark v. State (1996) 112 Nev. 795 [918 P.2d 1314]; Freeman v. State (Tex.Crim.App. 1995) 913 S.W.2d 714.)
The record clearly establishes that Aparicio, as part of his plea bargain in the subsequent attempted escape case, knowingly, intelligently and voluntarily waived his right to bring the instant appeal. Aparicio must be held to his bargain.
*293 Disposition
The People’s motion to dismiss the appeal is granted.
Huffman, Acting P. J., and Joseph, J., * concurred.
Appellant’s petition for review by the Supreme Court was denied November 10, 1999.
All further statutory references are to the Penal Code unless otherwise specified.
In the instant appeal, Aparicio contends (1) the court committed prejudicial error by admitting fingerprint evidence that was not disclosed to the defense until the middle of trial; (2) he was denied his due process right to a fair trial because the People concealed and suppressed the identity of a material witness; and (3) the court committed reversible error by denying his request for a Marsden (People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44]) hearing.
Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Cites, in this corpus
- People v. Panizzon S046141 · 1996-04-18
- People v. Vargas E009786 · 1993-03-05
- People v. Marsden Crim. 14119 · 1970-02-26
Cited by
- People v. Cisneros-Ramirez G055409 · 2018-11-26
- P. v. Aguilar CA2/5 B238748 · 2013-04-17