P. v. Mimms

Filed 3/22/07 P. v. Mimms CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Lynn C. Atkinson, Judge.

Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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PREFACE

On September 7, 2004, the Kings County District Attorney filed information No. 04CM7416 in superior court charging appellant with battery upon a peace officer while confined in state prison (Pen. Code,  4501.1, subd. (a)) (count 1), battery upon a nonconfined person ( 4501.5) (count 2), and alleging a prior serious or violent felony conviction as to both substantive counts ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). He appealed and this court reversed the judgment of conviction in case No. F047070.

Appellant was retried on an amended information essentially setting forth the same substantive counts and special allegations. A jury found him guilty of count 1, not guilty of count 2, and found the special allegation to be true. He appeals from the judgment of conviction upon retrial (case No. F050862). We will briefly outline the procedural history of the case, set forth the facts elicited upon retrial, and examine appellants contentions upon appeal from the judgment upon retrial.

STATEMENT OF THE CASE

Procedural History of Prior Case No. F047070

The following procedural history is taken from our nonpublished opinion in case No. F047070, filed December 8, 2005:

An information charged appellant Demond Mimms with battery of a state prison officer, Correctional Officer McVay, by gassing ( 4501.1, subd. (a); count 1) and battery by a prisoner on a non-prisoner, Officer McVay ( 4501.5; count 2). It also alleged Mimms previously had been convicted of a serious felony. Mimms represented himself at the preliminary hearing and elected to continue to proceed in pro per. The court subsequently revoked his pro per status before trial on the ground he was disruptive in the courtroom, and denied his requests for a continuance of the trial so he could retain private counsel. The jury convicted Mimms on count 1 and found the prior serious felony conviction true. The court dismissed count 2. Noting that Mimms was already serving a prison term at the time of the offense and his sentence for violation of section 4501.1, subdivision (a) was required to be served consecutively to his existing term, the court imposed a one year sentence, constituting one-third the three year mid-term, which was doubled to two years under the two strikes law.

On appeal, appellant urged the reversal of his conviction because the trial court violated his constitutional right to a fair trial by denying him the right to testify in his own defense despite a timely request to do so. This court agreed and reversed his conviction, stating in relevant part:

[H]ere defense counsel informed the court Mimms wished to testify and Mimms unequivocally asserted a desire to testify soon after the prosecution rested its case-in-chief and before Mimms was removed from the courtroom. Since the court was informed of Mimmss desire to testify, it was required to provide him that right or at least question him further about it. [S]ince Mimms timely asserted his right to testify before his removal, he did not waive his ability to assert his right to testify. As the record shows, his removal resulted from his continued assertion of his right, which the court denied. Clearly, the court misunderstood the extent of Mimmss right and that whether Mimms testified was a decision to be made by Mimms, not his attorney. In sum, the court erred in not honoring Mimmss request. (People v. Mimms (Dec. 8, 2005, F047070) [nonpub. opn.].)

On February 7, 2006, remittitur issued from this court.

Procedural History of Present Case No. F050862

On February 21, 2006, the superior court filed a notice of a February 28, 2006, hearing after remittitur.

On March 7, 2006, the court granted appellants motion to proceed in propria persona contingent upon his professional decorum. The court also appointed attorney Robert Stover as appellants stand-by counsel.

On March 14, 2006, appellant filed a motion to set aside the information on the ground he was illegally incarcerated on December 14, 1997, and the statute in his case was unconstitutional (Pen. Code,^[1] 995).

On March 23, 2006, appellant filed a motion to exclude relevant evidence, specifically witness testimony about gassing (Evid. Code,  352).

On March 27, 2006, appellant filed a motion for discovery of prosecution law enforcement witnesses and their personnel files (Evid. Code,  1043).

On the same date, appellant filed a motion for appointment of an expert in administrative law to testify as to appellants claim of false imprisonment (Evid. Code,  730).

On May 3, 2006, the Kings County District Attorney filed an amended information charging appellant as follows: count 1battery by gassing upon Correctional Officer Matthew McVay ( 4501.1, subd. (a)) and count 2battery upon a nonconfined person, i.e., Matthew McVay ( 4501.5). As to both counts, the district attorney specially alleged appellant had sustained a prior serious or violent felony conviction ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).

On the same date, appellant was arraigned, pleaded not guilty to the substantive counts of the amended information, and denied the special allegations.

On May 4, 2006, the district attorney filed written opposition to the motion to set aside the information.

On May 10, 2006, appellant filed an advisement and waiver right to counsel (Faretta^[2]waiver). On the same date, the court allowed appellant to continue to proceed in propria persona, granted his motion for copies of subpoenas duces tecum,^[3]but denied the remainder of his motions.

On June 12, 2006, jury trial commenced.

On June 14, 2006, the jury returned verdicts finding appellant guilty of count 1 ( 4501.1, subd. (a)) and not guilty of count 2 ( 4501.5). The jury also found the prior felony conviction allegation to be true.

On July 18, 2006, the court conducted a sentencing hearing, denied appellant probation, and sentenced him to a term of two years to be served consecutive to his current term of incarceration for violating 4501.5 out of Fresno County Superior Court Case 0610397-2. The total time imposed in the instant case and the 1997 Fresno County case consisted of 10 years in state prison. The court imposed a $400 restitution fine ( 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole ( 1202.45), and imposed a $20 court security fee ( 1465.8).

On July 24, 2006, appellant filed a timely notice of appeal.

STATEMENT OF FACTS^[4]

Facts Elicited from Present Case No. F050862

Correctional Officer Mike Wanagitis was assigned to Corcoran State Prison in the spring of 2004. On April 18, 204, he was conducting random searches of cells, including the cell of appellant Demond Mimms in unit 4A1 Right. Appellant appeared very upset about having his cell searched. The search procedure required that each inmate be handcuffed and removed from his cell. When the search was over, officers returned the inmate to the cell and closed the cell door. The inmate then had to place his cuffed hands at the food port on the cell door and officers outside the door would remove the handcuffs. Officer Wanagitis used this procedure with appellant.

After Officer Wanagitis removed one of the handcuffs, appellant spun around and pulled Wanagitiss arm through the port. Correctional Officer Matthew McVay, who was standing to the right of Wanagitis, released pepper spray into appellants cell through the food port. McVay used a can that released a 10-foot stream of pepper spray. McVay aimed at appellants torso but could not see whether the stream hit that portion of his body. Appellant released Wanagitiss arm but the right cuff was still on appellants hand. The correctional officers left the unit but did not attempt to close the food port because appellant had extended his arm through it. The two officers then notified Correctional Sergeant Frank Joe Reynoso of the incident.

Sergeant Reynoso, Officer McVay, and a medical assistant returned to appellants cell several minutes later. They sought to instruct appellant on how to decontaminate himself from the pepper spray. When they came within three to five feet of the cell, appellant opened the food port. McVay stood closest to the cell door. He was dressed in a protective vest and a face shield. Through the food port of the cell door, appellant swung a milk carton in an upward motion. The carton contained urine, which McVay detected from the odor of the substance. McVay said the fluid got all over his chest and some of it got under his face shield and into his mouth.

Officer McVay went to a bathroom and washed his face and skin. He said he was more concerned about possible contamination from the urine than in collecting evidence of the assault. McVay testified that none of the physical evidence was preserved as far as he knew. Sergeant Reynoso testified the milk carton was not collected. However, the food port was eventually secured.

Defense

Appellant testified on his own behalf. He said Correctional Officers McVay and Wanagitis came to his door while he was writing a letter in the back of the cell. The officers opened his food port and pepper sprayed the cell. When appellant approached the door, the correctional officers left. A few minutes later, other correctional officers and their supervisor, Sergeant Reynoso, came to his cell with a larger container of pepper spray and began to pepper spray him again. Appellant said three different officers pepper sprayed him.

Appellant claimed he did not reach for a container while he was in his cell. He further testified there never was an incident in which he gassed Officer McVay. Appellant believed the officers engaged in the pepper spraying conduct to cook up a case. He said the officers knew he was illegally incarcerated and was working to gain his release from prison. He said he should have been discharged ten years ago because he had served his time. However, he had not yet been released. Appellant said the officers needed to secure a new conviction against him to keep him in prison.

On cross-examination, appellant acknowledged he had been convicted of robbery in Orange County on January 21, 1994 and sentenced to a five-year prison term. He also said he had committed two other feloniespossession of a firearm and battery by a prisoner. According to appellant, the possession of a firearm occurred on December 14, 1997 and the battery occurred on December 14, 1998. Appellant explained, This is battery by a prisoner [that] happened the day I maxed out, the day after I maxed out. This is illegal. What I was doing in prison [in] the first place?

DISCUSSION

Appellants appointed counsel has filed an opening brief which adequately summarizes the facts and adequately cites to the record, which raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) By letter dated November 8, 2006, this court invited appellant to submit additional briefing and state any grounds of appeal he may wish this court to consider. On November 17, 2006, appellant filed a declaration of conflict of interest between attorney and client. In that declaration, appellant asserted the existence of a conflict because his appellate counsel filed a Wende brief despite the fact the record reflects there are five (5) issues needed to be raise[d] on appeal.^[5]

On December 4, 2006, this court deemed appellants declaration of November 17, 2006, to be a request for new appointed counsel on appeal and denied the request as such. Our order of December 4, 2006, further stated: Appellant has failed to show the representation he is receiving is deficient. Pursuant to this courts letter of November 8, 2006, appellant may brief those issues he believes counsel has not addressed in the opening brief. Appellant has not done so.

Our independent review discloses no reasonably arguable appellate issues. [A]n arguable issue on appeal consists of two elements. First, the issue must be one which, in counsels professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment. (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)

DISPOSITION

The judgment is affirmed.

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^* Before Harris, Acting P.J., Dawson, J. and Kane, J.

^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2]Faretta v. California (1975) 422 U.S. 806.

^[3] The record on appeal does not contain a copy of appellants motion for subpoenas duces tecum.

^[4] We have omitted a recitation of the facts underlying our prior case No. F047070 as we reversed the judgment and the superior court conducted a new trial upon remand.

^[5] According to appellant, the five issues are: (1) the trial court denied the pretrial motion to set aside the information ( 995) because he was illegally incarcerated without an order made pursuant to law and thereby incapable of violating the offense; (2) the trial court denied the pretrial motion for an expert witness with regard to appellants allegedly illegal incarceration; (3) the trial court refused to preserve evidence of appellants illegal incarceration; (4) the trial court failed to meet the standard of proof beyond a reasonable doubt because Officer McVays medical record reflected he was not exposed to urine and thus not gassed; and (5) the trial court did not afford appellant a fair and impartial jury from the community because the jury did not include any African-American jurors.