Filed 6/2/14 P. v. Littlejohn-Zabel CA5


                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F065616

                   v.                                                    (Super. Ct. No. CRF37707)

CHARLES G. LITTLEJOHN-ZABEL,                                                      OPINION
JR.,

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Tuolumne County. William
G. Polley, Judge.
         Kelly Lynn Babineau, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Leanne Le Mon and Louis M.
Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

        Before Gomes, Acting P.J., Detjen, J., Sarkisian, J.†
†     Judge of the Superior Court of Fresno County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
       Appellant, Charles G. Littlejohn-Zabel, Jr. pleaded guilty to committing a lewd act
upon a child under the age of 14 (Pen. Code, § 288, subd. (a)).1 The court imposed a
prison term of six years.
       On appeal, appellant argues as follows: At the time he waived his right to a
preliminary hearing, the prosecution promised him a three-year sentence “cap”; he
detrimentally relied on this promise; and therefore he is entitled to specific performance
of that promise, i.e., the imposition of a sentence of no more than three years. We
dismiss the appeal.
                            PROCEDURAL BACKGROUND
       Appellant was charged by criminal complaint with a single count of violating
section 288, subdivision (a). His preliminary hearing was set for March 7, 2012.2 At the
outset of the proceeding on that day, the following exchange occurred:
       “MR. PRICE [defense counsel]: Today, we’re going to waive prelim, Your
Honor.
       “THE COURT: Okay. Any promises, anything like that?
       “MR. PRICE: Three-year cap with a 288 (b)(1) [sic] examination.”3
       Shortly thereafter, the court advised appellant, and appellant confirmed he
understood, that he had a right to a preliminary hearing in which he could cross-examine



1      All statutory references are to the Penal Code.
2      All references to dates of events are to dates in 2012.
3       It appears, and the parties agree, that defense counsel misspoke in referring to
“288 (b)(1),” and that he meant to refer to section 288.1, which provides, in relevant part:
“Any person convicted of committing any lewd or lascivious act … upon or with the
body, or any part or member thereof, of a child under the age of 14 years shall not have
his or her sentence suspended until the court obtains a report from a reputable psychiatrist
… as to the mental condition of that person.”


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witnesses against him and that he could subpoena witnesses to the hearing. There also
occurred the following exchange:
       “THE COURT: And at this time, do you give up your right to a preliminary
hearing?
       “[Appellant]: Yes, ma’am.
       “THE COURT: Other than a -- I think you said a three-year cap, have any other
promises been made to get you to do this?
       “[Appellant]: No.”
       Appellant then stated on the record his waiver of his right to a preliminary hearing,
and the court found “the waiver has been freely and voluntarily made” and “[appellant’s]
rights are knowingly, intelligently and understandingly waived,” and set appellant’s
arraignment for March 19.
       On March 19, at the arraignment, appellant pleaded not guilty to the single count
alleged in the “Complaint deemed an Information,” and the court set a trial readiness
conference for April 23 and trial for May 2.
       On April 23, appellant executed an “ADVISEMENT AND WAIVER OF
RIGHTS” form (plea form) which indicates that the “Potential Sentencing Range” for a
violation of section 288, subdivision (a) is “3, 6, 8,” and that if appellant pleaded guilty or
no contest to that offense, he was subject to a “Total Potential Sentence” of eight years.
The section of the plea form labeled “Total Potential Sentence” also contained the
notation “288.1 EXAM.” Appellant confirmed, by executing the plea form, the
following: “I understand that I will be waiving my right to appeal and I will not be able
to appeal from this Court’s sentence based on the plea that I enter into in this matter.”
       At the outset of the court proceeding later that day, before a different judge than
the one who had presided at the March 7 hearing, the following exchange occurred:



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       “THE COURT: … [¶] … [¶] Well, Mr. Price, it appears that there’s not a plea
agreement, but this is a representation by the [c]ourt that your client, if he pleads guilty,
will get an examination pursuant to … section 288.1; is that correct?
       “MR. PRICE: That’s correct, Your Honor.
       “THE COURT: All right. Very well.”
       A short time later, the following exchange occurred:
       “THE COURT: … And it’s your intention, Mr. Price, to have your client plead to
the one count straight up, is that right, … with the [c]ourt’s representation?
       “MR. PRICE: Yes, Your Honor.”
       Thereafter, appellant entered his guilty plea.
       On May 21 the court ordered a “288.1 evaluation.” A psychologist performed the
evaluation on June 12 and submitted a report to the probation officer; the probation
officer thereafter prepared a report in which she recommended imposition of the six-year
midterm; and on July 9 the court imposed the recommended term.
                                       DISCUSSION
       Appellant argues that as part of a plea bargain, the prosecutor promised him he
would not receive a sentence exceeding three years if he (appellant) waived his right to a
preliminary hearing; appellant detrimentally relied on this promise in waiving his right to
a preliminary hearing; and therefore this court should vacate the six-year sentence
imposed and remand the matter to the trial court with directions that the trial “order …
specific performance of the plea bargain,” i.e., impose a sentence of no more than three
years. Appellant relies on the principle that a prosecutor may not withdraw from a plea
bargain if the defendant has pleaded guilty or otherwise detrimentally relied on the plea
bargain. (See People v. Rhoden (1999) 75 Cal.App.4th 1346, 1351-1355.) The People
first counter that appellant has waived his right to appeal on this ground. The People are
correct.

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Waiver of Right to Appeal
       As indicated above, appellant stated in the plea form: “I understand that I will be
waiving my right to appeal and I will not be able to appeal from this Court’s sentence
based on the plea that I enter in this matter.” (Italics added.) Appellant, focusing on the
words “based on the plea,” argues that he waived only his right to challenge the validity
of the plea. He argues further that he is not challenging the validity of the plea but is
instead seeking to specifically enforce a plea agreement. We disagree with appellant’s
interpretation of the waiver provision.
       Regardless of whether appellant’s argument can be characterized as a challenge to
the validity of his plea, it is certainly a challenge to his sentence. In arguing that the trial
court must be directed to impose a term of no more than three years, appellant challenges
the six-year term imposed by the court, and the waiver provision states that appellant has
waived his right to appeal “from [the trial] Court’s sentence ….” The words “based on
the plea” do not change the plain meaning of the words that appellant waives his right to
appeal “from [the trial] Court’s sentence ….”
Certificate of Probable Cause
       We may not review an appellate challenge to the validity of a plea where the
defendant does not obtain a certificate of probable cause. (People v. Shelton (2006) 37
Cal.4th 759, 766 (Shelton); § 1237.5.) The People also contend the instant appeal is, in
essence, a challenge to the validity of appellant’s guilty plea and therefore the absence of
a certificate of probable cause precludes the instant appeal. Appellant argues “[he] is not
challenging the validity of [his] plea, but is seeking specific performance of the plea
bargain, and therefore did not need to obtain a certificate of probable cause.” We agree
with the People.
       Shelton is instructive. In that case, the parties reached a plea agreement which
called for the defendant to plead no contest to two felony counts in exchange for a

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sentence cap of three years eight months, and the trial court imposed the maximum term
allowable under the agreement. On appeal, the defendant, who did not obtain a
certificate of probable cause, argued that the sentence imposed violated the section 654
proscription against multiple punishments. The issue before our Supreme Court was
whether the defendant could raise this claim of error in the absence of a probable cause
certificate.
       Under the terms of the agreement, as interpreted by the California Supreme Court
using “general contract principles” (Shelton, supra, 37 Cal.4th at p. 767), the defendant
could urge the trial court to exercise its sentencing discretion in favor of imposing a
punishment less severe than three years eight months, but could not argue that section
654 precluded imposition on one of the counts to which he plead. (Shelton, supra, at
p. 768). “Because the plea agreement was based on a mutual understanding (as
determined according to principles of contract interpretation) that the court had authority
to impose the lid sentence, defendant’s contention that the lid sentence violated the
multiple punishment prohibition of Penal Code section 654 was in substance a challenge
to the plea’s validity and thus required a certificate of probable cause, which defendant
failed to secure.” (Id. at p. 769.)
       Here, on April 23, appellant entered into his negotiated guilty plea with the
understanding that (1) the court would order a section 288.1 examination and
(2) appellant, if sentenced to prison, could receive a term of three, six or eight years.
When we apply general contract principles we conclude that appellant retained the right
to argue for probation or a term of three years or six years rather than the eight-year
maximum, but, as in Shelton, he did not reserve the right to challenge the court’s
authority to impose a sentence within the range allowed by law for the instant offense.
Now, on appeal, appellant argues, in effect, that the court lacked the authority to impose a



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sentence of greater than three years. As in Shelton, such a challenge was not reserved
under the terms of his plea and constitutes a challenge to the validity of the plea.
       Appellant’s argument that he is seeking to enforce the terms of the plea agreement
rather than challenging the plea’s validity is premised on the claim that at the time of his
plea, an agreement was in place, one of the terms of which was that any prison sentence
imposed would not exceed three years. We reject this premise.
       Although at the March 7 proceeding appellant waived his right to a preliminary
hearing, he did not enter into a plea agreement at that time, as evidenced by, inter alia, the
fact that he did not then enter a plea. The curious events of March 7—appellant’s waiver
of his right to a preliminary hearing, a promise of a three-year sentence cap, yet no plea
entered—suggest a plea offer was made but appellant had not accepted it, even though he
waived his right to a preliminary hearing. The events that ensued provide further support
for this conclusion: On March 19, appellant entered a plea of not guilty; he entered into a
negotiated plea on April 23, at which time defense counsel acknowledged no plea
agreement was in place and no mention was made of a three-year cap; and on July 9 at
sentencing, appellant did not suggest in any way that he believed a sentence in excess of
three years was contrary to any agreement that had been reached. From these events we
infer that notwithstanding appellant’s March 7 waiver of his right to a preliminary
hearing, no plea agreement had been finalized at that point, and that in the interval prior
to April 23, either the prosecution withdrew whatever offer had been made or appellant
rejected an offer. Thus, on this record, we conclude that there was no plea agreement in
effect on April 23, on that date the terms of the negotiated plea were as indicated above,
and appellant’s challenge to the sentence imposed is, as demonstrated above, a challenge




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to the validity of the plea. Therefore, the absence of a certificate of probable cause
precludes the instant appeal.4
                                      DISPOSITION
       The appeal is dismissed.




4      Because we dismiss the instant appeal on the grounds discussed above, we do not
address the merits of appellant’s specific performance claim. We note that were we to do
so, we would reject appellant’s claim because, as demonstrated above, the purported plea
agreement which appellant seeks to have specifically performed was not in place at the
time of his plea.


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