Where an appellate waiver expressly waives appeals from the judgment and collateral attacks on the sentence, the waiver encompasses a challenge to the calculation of custody credits. Becerra pleaded no contest to a felony offense and signed a waiver stating: “I hereby waive and give up all rights regarding state and federal writs and appeals. This includes, but is not limited to, the right to appeal my conviction, the judgment, and any other orders previously issued by this court. I agree not to file any collateral attacks on my conviction or sentence at any time in the future. I further agree not to ask the Court to withdraw my plea for any reason after it is entered.” At sentencing, he objected to the calculation of custody credits. On appeal, he challenged the calculation of his presentence custody credit, but he did not obtain a certificate of probable cause. Held: Appeal dismissed. Courts have held that a general appellate waiver does not bar a defendant’s appellate challenge to custody credits. However, “when a defendant waives the right to appeal as part of a plea agreement, and the waiver’s terms encompass the issue the defendant wishes to raise, the defendant must obtain a certificate of probable cause to avoid dismissal of the appeal.” (People v. Espinoza (2018) 22 Cal.App.5th 794.) Here, the Court of Appeal determined that Becerra’s appellate claim concerning the error in calculating custody credits fell within the scope of his appellate waiver. A trial court is required to calculate custody credits as part of its imposition of sentence and oral pronouncement of judgment. Becerra’s appellate waiver expressly encompassed an appeal from the “judgment” or any collateral attack on the “sentence.” Significantly, when negotiating, the parties declined to enter a more limited appellate waiver that also appeared on the preprinted plea form. Additionally, although the failure to accurately award custody credits results in an unauthorized sentence, Becerra did not provide legal authority to support the proposition that custody credit error is not waivable by agreement.

Defendant’s failure to obtain a certificate of probable cause precluded his challenge to the enforceability of the appellate waiver as to his custody credits issue. Becerra argued that he could not have knowingly and intelligently waived his claim regarding his presentence custody credits when he signed the appellate waiver because the error had not yet occurred. However, the Court of Appeal concluded that Becerra’s appellate waiver encompassed his claim that the trial court erred in calculating his custody credits. Becerra’s additional argument that he did not knowingly and intelligently agree, at the time he entered the waiver, to waive a claim of future error concerning custody credits was a challenge to the enforceability of the appellate waiver. As the appellate waiver was contained within defendant’s plea agreement, his contention concerning the enforceability of the appellate waiver constituted an attack on the plea’s validity, which requires a certificate of probable cause. If a defendant in this situation obtains a certificate of probable cause, he can then argue the waiver is not enforceable as to the issue raised because the waiver was not knowing and intelligent, or for some other reason. Becerra’s appeal was dismissed because he failed to obtain a certificate of probable cause. [Editor’s Note: The court also concluded that “a certificate of probable cause is not required for the issue of whether the defendant’s appellate claim falls within the scope of an appellate waiver. If the defendant’s claim is not within the scope of an appellate waiver, the waiver does not preclude an appellate court from considering the defendant’s underlying claim.”]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/H045600.PDF