P. v. Brown

Filed 9/30/08 P. v. Brown CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Lassen)

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Pursuant to a plea agreement that included a five-year sentencing lid, defendant Richard Bryan Brown pled guilty to transportation of methamphetamine and subornation of perjury, and he was sentenced to four years in state prison.

On appeal, defendant contends that the trial court abused its discretion in denying probation. The People claim that we need not reach the issue because, as part of his plea agreement, defendant waived his right to appeal.

As we will explain, the plea agreement did not include a waiver of defendants right to appeal his sentence; but he fails to show that the trial court abused its sentencing discretion. Thus, we shall affirm the judgment.

FACTS

Around midnight on June 12, 2005, a law enforcement officer observed defendant driving a truck that was not equipped with mud flaps as required by the Vehicle Code, and also saw defendant cross over the double yellow line.^[1] The officer stopped the truck, determined that defendant was under the influence of a narcotic, arrested him, searched the truck, and found 74.9 grams of methamphetamine.

Defendant was charged with possession of methamphetamine for sale, transportation of methamphetamine, and being under the influence of methamphetamine.

Following the denial of his motion to suppress evidence, defendant renewed his efforts to demonstrate he was unlawfully detained because, contrary to the officers testimony, the truck was equipped with mud flaps when it was stopped. Defendant placed mud flaps on the truck; had it towed by a tow vehicle similar to the one used to impound his truck on the date he was arrested; asked a friend to take pictures of the truck being towed; and coerced a fellow drug user into submitting the photographs as pictures taken by a passerby on the night of the arrest.^[2]

The prosecution then filed an amended information, adding charges of perjury and subornation of perjury.

In exchange for dismissal of other charges and a sentencing lid of five years, defendant pled guilty to transportation of a controlled substance and subornation of perjury. In his allocution, defendant admitted he transported methamphetamine in his truck and suborned perjury. According to him, photographs had existed of his truck with mud flaps on the date he was stopped, and he had merely recreated the photographs to depict what he believed was the truth. His wife, a codefendant, took the photographs to their attorney, David Williams, who submitted them to the court. Defendant admitted that what he did was foolish.

At the sentencing hearing, his new attorney, John Lawson, asked the court to consider placing defendant on probation. Lawson limited his argument primarily to factors concerning the narcotics conviction. According to Lawson, defendants drug offense did not involve planning or sophistication, defendant did not have a prior criminal history, and defendant honestly believed that he had been framed and that some of the methamphetamine had been planted on him.

After asking permission to speak on defendants behalf, the attorney for defendants wife argued that defendants former attorney, David Williams, had used a scorched earth policy, which was not helpful to defendant or his wife. Williams had been whipping these people into a frenzy as part of the conspiracy theory and frame-up, which affected defendants decision-making. Defendant adamantly believed there had been a photograph of his truck showing it had been equipped with mud flaps on the night it was towed, and defendant made a misguided decision to recreate the photograph. Counsel conceded it was not Williamss fault that defendant created the new photograph -- indeed, it was defendants responsibility -- but counsel argued Williamss anti-government conspiracy . . . mindset should be a mitigating factor.

The trial court stated that it may well have been a probation case if only the drug charge was involved, but that defendant also pled guilty to suborning perjury. Rather than simply arguing he had seen a photograph that depicted his truck with mud flaps and asking the court to believe him, defendant tried to mislead the court with false evidence, which placed the matter beyond where you can consider probation. The court sentenced defendant to the middle term of three years for the drug transportation conviction and to a consecutive term of one year for the subornation of perjury conviction.

DISCUSSION

We disagree with the Peoples assertion that the terms of the plea agreement included a waiver of defendants right to appeal from the sentence.

As a general proposition, a broad or general waiver, such as I waive my appeal rights, will include error occurring prior to the waiver, but not subsequent error because the defendant could not make a knowing and intelligent waiver of the right to appeal any unforeseen or unknown future error . . . . [Citation.] If, however, the defendant agrees to a bargain which includes a specific or indicated sentence, and if that is the sentence actually imposed, the defendants waiver will foreclose appellate review of the sentence; any challenge to the sentence will be deemed a challenge to an integral component of the bargain. [Citations.] (In re Uriah R. (1999) 70 Cal.App.4th 1152, 1157-1158.)

A plea agreement which states a specified sentence must be distinguished from one setting forth only a maximum sentence. Unless it states otherwise, a plea agreement providing for a maximum sentence inherently reserves the parties right to a sentencing proceeding in which . . . they may litigate the appropriate individualized sentence choice within the constraints of the bargain and the courts lawful discretion, and . . . appellate challenges otherwise available against the courts exercise of that discretion are retained. An appellate challenge to the exercise of the discretion reserved under the bargain is therefore a postplea sentencing matter extraneous to the plea agreement. (People v. Buttram (2003) 30 Cal.4th 773, 777; see also People v. Sherrick (1993) 19 Cal.App.4th 657, 659.)

Here, the record does not include a copy of the written plea agreement. The trial court simply noted, and defendant agreed, that defendant had initialed the box stating there is a waiver of [his] right to appeal. There is no indication the provision to which he agreed expressly waived the right to appeal his sentence. And the plea agreement did not include a specific or indicated sentence, only the possibility of a five-year maximum term. Thus, defendant remained eligible for probation, had the right to a sentencing hearing at which the court exercised its lawful discretion, and retained the right to challenge, via appeal, the exercise of that discretion on appeal.

Nevertheless, defendant has not shown that the trial court abused its sentencing discretion when it denied defendants request for probation.

The grant or denial of probation is within the trial courts discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) He must clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citations.] (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) The courts decision will not be reversed merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.)

Defendant fails to demonstrate any such irrationality or arbitrariness in the trial courts denial of probation. He simply renews and expands on the arguments that defense counsel made at the sentencing hearing. Defendant argues the court should have discounted his effort to falsify evidence because (1) he honestly believed that he was merely recreating existing evidence, and (2) he would not have submitted the photographs to the court absent Attorney Williamss antagonistic behavior, which delayed the proceedings and led defendant to believe that he was a victim of the system.

However misguided Attorney Williamss conduct may have been, there is no evidence that he suggested defendant should manufacture evidence. That was entirely defendants choice and responsibility. As the trial court explained, if defendant believed a photograph existed to show there were mud flaps on the truck, then he should have made such an argument to the court and asked the court to believe him. It was not permissible to falsify evidence, involve another person in submitting the false evidence to the court, and attempt to corrupt the legal process. The court did not abuse its discretion in determining that defendants conduct earned him a harsher penalty than probation.

DISPOSITION

The judgment is affirmed.

SCOTLAND, P.J.

We concur:

NICHOLSON , J.

HULL, J.

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^[1] Because defendant pled guilty, the facts are taken from his suppression motion and the probation report.

^[2] On appeal, defendant concedes that regardless of the presence or absence of mud flaps, the officer had cause to detain him because he was driving over the double yellow line, which supported a reasonable suspicion that he was driving under the influence of alcohol or drugs.