People v. Kelly

Opinion

PUGLIA, P. J.

(Pen. Code, § 1538.5), defendant entered a negotiated plea of no contest to charges of discharging a firearm in a grossly negligent manner which could result in injury or death (Pen. Code, § 246.3) and being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)). Placed on probation for three years, defendant appeals, challenging the denial of his suppression motion. We shall conclude defendant waived his right to appeal the denial of his suppression motion and dismiss the appeal.

The prosecution and the defendant agreed to a negotiated disposition. Defendant signed a “Change of Plea” form which recited the terms of the

[535]

bargain and the consequences of the plea. One of the terms was stated on the form as follows: “I understand that as a term and condition of this plea that I give up any direct appeal I may have, except any appeal to [sic] sentencing error.” Defendant inscribed his initials next to this statement. Defendant acknowledged on the form he had read and discussed with his attorney each of the terms, and that he understood them. The form also recited that defendant’s attorney had reviewed the terms of the negotiated plea with defendant and explained the consequences of the plea with defendant.

At the hearing on defendant’s change of plea, the court asked defendant if he had read and signed the change of plea form. Defendant answered in the affirmative. Defendant also responded affirmatively when the court asked if he was entering the plea “freely [and] voluntarily.” The court found the plea was “freely and voluntarily entered. . . .”

People

v.

Charles

(1985) 171 Cal.App.3d 552, 557, 558 [217 Cal.Rptr. 402], holds a defendant may validly waive his right to appeal as part of a plea bargain. A waiver of appeal is proper, “provided such waiver is knowing, free and intelligent.”

(Id.

at p. 559.) In

Charles,