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People v. Godinez10/21/2002
the appellate process. (People v. Nguyen (1993) 13 Cal.App.4th 114, 123.) When assessing whether the defendant can appeal a plea agreement, courts have used the paradigm of contract law (id. at p. 120) and a knowing and intelligent waiver (People v. Panizzon (1996) 13 Cal.4th 68, 80). We see no reason why the same principles do not apply in the situation before us; that is, when the defendant appeals a sentence after agreeing to a court trial in exchange for a cap on his sentence.
Combining the contract paradigm with the requirement of a knowing and intelligent waiver, we conduct a three-prong test to determine whether defendant can now challenge his sentence. Firstly, we assess the specific language of the agreement to determine the expressed intent of the parties to ensure the sentence complies with that intent. (People v. Nguyen, supra, 13 Cal.App.4th at p. 120.) There is no doubt that defendant agreed to the maximum term of two years and four months to run consecutively with the term he was already serving. The court was explicit and even stressed that it was not inclined to impose a concurrent sentence. Thus, the court's sentence complied with the intent of the parties. Secondly, we determine whether the court carried out the parties' reasonable expectations. (Ibid.) The court imposed the sentence it promised, which was shorter that the maximum statutory penalty, and therefore it carried out the parties' reasonable expectations. Thirdly, we look to see if the defendant made a knowing and intelligent waiver of his right to appeal his sentence. (People v. Panizzon, supra, 13 Cal.4th at p. 80.) Here, that did not occur. Rather, defendant was told that he had preserved his right to an appeal; he was not admonished that he had waived any right to challenge his sentence.
We will still affirm, however, because defendant failed to object to the sentence and therefore waived his claim. (People v. Scott (1994) 9 Cal.4th 331, 353.) The waiver doctrine applies "to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices." (Ibid.) " meaningful opportunity to object means that the defendant be given the opportunity to address the court on the matter of sentence and to object to any sentence or condition thereof imposed by the court. In short, it refers to procedural due process which, although not subject to precise definition [citation], requires notice and an opportunity to be heard." (People v. Zuniga (1996) 46 Cal.App.4th 81, 84.)
Defendant complains that he had no opportunity to object. (See People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1224.) The record, however, does not support defendant's claim. The court repeatedly informed defendant that it intended to impose a consecutive sentence, not a concurrent one. Further, the court explained that it was imposing one-third of the midterm, which could only be possible if imposed consecutively. (Pen. Code, § 1170.1, subd. (a).) Defendant had ample notice and sufficient opportunity to object. Accordingly, we conclude defendant waived any challenge based on the court's failure to explain its reasons for imposing a consecutive sentence.
DISPOSITION
The judgment is affirmed.
We concur:
Kline, P. J.
Ruvolo, J.
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