P. v. Steele

Filed 6/4/07 P. v. Steele 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Madera County. John W. DeGroot, Judge.

Richard Power, 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, Senior Assistant Attorney General, J. Robert Jibson and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Jimmy Dale Steele was a suspect, along with five others, in the fatal beating of a man who happened to ride by on his bicycle one night. The victim, John Emery, was found dead from severe head wounds on a rural dirt driveway near Chowchilla. When appellant was questioned about the homicide, he asked the investigating officer whether a deal could be worked out in exchange for his testimony. The appellant was told that if he was not a participant in the murder, the district attorney might be willing to make such a deal, but it would depend on all the information obtained from the investigation. Appellant then began talking to the officer about the incident, portraying his own role as primarily that of a bystander. However, in the course of the investigation, the other perpetrators told the police that appellant was the one who repeatedly hit Emery in the head with a baseball bat. No immunity was granted to appellant. On the date of trial, when appellants motion to suppress his extrajudicial statements was denied, appellant elected to plead guilty to voluntary manslaughter. Following his guilty plea, the appellant filed this appeal in which he contends the trial court erred by (1) denying his motion to suppress, and (2) failing to strike a prior conviction. We will affirm the judgment.

FACTS^[1]AND PROCEDURAL BACKGROUND

On October 16, 2005, Madera County Sheriffs Detective John Grayson was dispatched with other deputies to 23682 Road 18 3/4 near Chowchilla to investigate a homicide. When he arrived, he saw the deceased victim lying in a driveway in a large pool of blood with obvious head trauma. A later autopsy confirmed that the victim, John Emery, died of multiple blunt impact injuries to the head.

During the ensuing investigation, appellant and five others were identified as suspects. All six were questioned by Detective Grayson. In some respects, the information provided by the six suspects was consistent. They each told Detective Grayson that on the night in question, they were seeking to steal some marijuana which they believed might be stored in a shed on the property. While they were considering how to break into the shed, a man approached on a bicycle and asked them what was going on. The man was then brutally attacked and beaten. One or more of the assailants used a baseball bat and/or bedpost, striking the man in the head several times. Another stabbed him with a knife. Others kicked or hit the man. After he was down and lay motionless, they fled the scene.

On October 18, 2005, Detective Grayson went to appellants home to question him about the homicide. Appellant at first denied any knowledge of the incident, but then nervously asked what kind of deal he could get. According to Grayson, no promises were made, and he told appellant it would depend on his involvement and on what the District Attorney determined after receiving all of the information. Appellant then began to talk about the incident, naming the people involved and stating that he was not a participant in the homicide. Appellant then asked if Detective Grayson would call the District Attorney to see what kind of deal he could get before he divulged any further details. After telephoning the District Attorney, Grayson informed appellant that if he was not involved in the homicide, some kind of deal could be arranged. However, according to Detective Grayson, he made it clear that nothing was being promised at that time, since the District Attorney would have to make a determination based on all the information. Appellant then provided Detective Grayson with a fairly detailed account. According to Detective Grayson, at some point in his discussions with appellant, he (appellant) admitted that he kicked the victim during the beating.

As the investigation progressed, Detective Grayson interviewed each of the other suspects individually. Several of the suspects told Grayson that it was appellant who had hit the victim in the head with a baseball bat.

In the amended information, appellant and others were charged with murder. There was a further allegation that appellant had previously suffered a serious or violent prior felony conviction.

On the date set for trial, a hearing was held pursuant to Evidence Code section 402, subdivision (b), in connection with appellants motion to suppress the extrajudicial statements he had made to law enforcement. At that hearing, appellant testified that he only made his statements to Detective Grayson because he had been promised immunity in exchange for his testimony. Other evidence was also presented at the hearing, including the testimony of Detective Grayson. The trial court denied the motion, concluding there was no immunity deal, but only a possibility thereof and that appellants statements were freely and voluntarily given in the hopes of a later deal, which apparently didnt materialize.

After the courts ruling, the appellant entered into a plea bargain that was offered by the prosecutor. Appellant pled guilty to a charge of voluntary manslaughter, and admitted to a prior strike and a prior serious felony conviction. Under the plea agreement, the maximum sentence was 27 years.

At the sentencing hearing, the court denied appellants Romero^[2]motion to strike the prior conviction. Appellant was sentenced to a total prison term of 27 years. Thereafter, appellant filed a timely notice of appeal and obtained a certificate of probable cause from the trial court.

CONTENTIONS ON APPEAL

Appellants primary contention is that the trial court erred in denying his motion to suppress. He asserts that the statements made to Detective Grayson were not voluntarily given, but were induced by false promises of immunity. Appellant believes that he may raise this issue, even following his guilty plea, because he filed a certificate of probable cause that was signed by the trial judge. Respondent counters that the appellants guilty plea forecloses appeal on this ground, and filing a certificate of probable cause cannot revive issues waived by the plea. We conclude that respondents position is correct. Appellants second contention on appeal is that the trial court abused its discretion by failing to strike the prior. We disagree.

DISCUSSION

A. Issue of Admissibility of Appellants Extrajudicial Statements Not Cognizable in This Appeal.

The decisive question is whether the trial courts ruling on the motion to suppress can be reviewed on appeal after appellants guilty plea. We hold that it cannot.

A guilty plea admits all matters essential to the conviction. (People v. DeVaughn (1977) 18 Cal.3d 889, 895.) Consequently, [i]ssues cognizable on an appeal following a guilty plea are limited to issues based on reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings resulting in the plea. (Ibid., citing Pen. Code,  1237.5.) Following a guilty plea, review is limited to issues going to the jurisdiction of the court or the legality of the proceedings, including the constitutional validity of the plea. (People v. Hoffard (1995) 10 Cal.4th 1170, 1177-1178; see People v. Shults (1984) 151 Cal.App.3d 714, 718-719 [summary of matters waived by plea of guilty].) Further, [t]he issuance of a certificate of probable cause pursuant to section 1237.5 does not operate to expand the grounds upon which an appeal may be taken. (People v. DeVaughn, supra, at p. 896.)

In People v. DeVaughn, supra, 18 Cal.3d 889, the defendant appealed following a plea of guilty. The trial court issued a certificate of probable cause purporting to preserve for appellate review the denial of defendants motion to suppress his allegedly involuntary confession. The Supreme Court held that appellate review of the courts ruling was waived by the plea of guilty: Given the accuseds guilty plea, an extrajudicial statement relating to his guilt of a charged crime does not, by reason of a claim that it was involuntarily or improperly induced, raise an issue on appeal based on constitutional, jurisdictional or other grounds going to the legality of the proceedings resulting in the plea.Defendants in the instant case, accordingly, cannot raise on this appeal claims that their extrajudicial statements were involuntarily induced. (Id. at p. 896.)^[3]

We conclude that review of the courts denial of appellants suppression motion was waived as a result of the appellants guilty plea.

B. The Trial Court Properly Denied Appellants Romero Motion.

Appellant next contends that the trial court abused its discretion when it refused to dismiss his prior strike felony conviction.

In People v. Superior Court (Romero), supra, 13 Cal.4th 497, the California Supreme Court explained that under Penal Code section 1385, subdivision (a), a trial court may in the furtherance of justice strike or vacate an allegation or finding under the Three Strikes law^[4]that a defendant has previously been convicted of a serious and/or violent felony. (Id. at p. 504.) The courts exercise of discretion in the furtherance of justice requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People. (Id. at p. 530, italics in original.)

In People v. Williams (1998) 17 Cal.4th 148, the Supreme Court articulated the standard for striking prior convictions under the Three Strikes law, as follows:

We therefore believe that, in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, in furtherance of justice pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. If it is striking or vacating an allegation or finding, it must set forth its reasons in an order entered on the minutes, and if it is reviewing the striking or vacating of such allegation or finding, it must pass on the reasons so set forth. (Id. at p. 161, italics added.)

The trial courts decision whether or not to strike a prior conviction for purposes of the Three Strikes law is subject to review under the deferential abuse of discretion standard. (People v. Romero (2002) 99 Cal.App.4th 1418, 1433-1434.) Under this standard, the ruling will be upheld unless it falls outside the bounds of reason under the applicable law and the relevant facts. (People v. Williams, supra, 17 Cal.4th at p. 162.) As more fully explained in People v. Carmony (2004) 33 Cal.4th 367:

In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, [t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 (Alvarez), quoting People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) Second, a decision will not be reversed merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. (Alvarez, at p. 978, quoting People v. Preyer (1985) 164 Cal.App.3d 568, 573.) Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.

Because all discretionary authority is contextual (Alvarez, supra, 14 Cal.4th at p. 978), we cannot determine whether a trial court has acted irrationally or arbitrarily in refusing to strike a prior conviction allegation without considering the legal principles and policies that should have guided the courts actions. We therefore begin by examining the three strikes law.

[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts discretion in sentencing repeat offenders. (Romero, supra, 13 Cal.4th at p. 528.) To achieve this end, the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme. [Citations.] [] []

Because the circumstances must be extraordinary ... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack (Strong, supra, 87 Cal. App.4th at p. 338), the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case -- where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ -- the failure to strike would constitute an abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 376-377.)

At the sentencing hearing in the present case, appellant brought a motion to strike his prior serious felony conviction incurred in 2003 for making a terrorist threat to stab someone in violation of Penal Code section 422.^[5] The prior conviction was based on appellants conduct of pulling a knife and making threats with it while using ethnic slurs, i.e., yelling white power, fucking nigger and fucking spick at the victims, and, when the police arrived, threatening I was going to stab that fucking spick.^[6] Although appellant pled guilty to a felony for violation of section 422, his counsel now argues that there was no immediate prospect of being able to stab the victim once the police arrived. Thus, according to appellant, it should be treated as a less serious offense, outside the spirit of the Three Strikes sentencing law. Also, the court was asked to consider, in mitigation, that appellant has mild retardation and is consequently very gullible, impulsive and able to be manipulated by others.

The trial court weighed these considerations and found them unconvincing, viewing the prior conviction as an example of the appellants history of violent conduct, which further confirmed that he is a serious danger to society. The court also noted there were other, similar assaults or threats of violence, such as his conviction for violation of Penal Code section 417 in 2004, and the incident constituting violation of his probation thereafter. Appellant had also served a prior prison term, and was on parole when he committed the instant offense, thus less severe punishment was having no effect on appellants conduct. Additionally, the court noted the victim in the present case was particularly vulnerable and defenseless in light of the circumstances of the attack against him. In view of the egregious nature of this crime and appellants prior violent conduct, the court found it unnecessary to base its sentencing determination on whether the appellant used a baseball bat or had a more minor role in the deadly beating. The court noted that appellant is immature and suffers from mild mental retardation, but found these factors did not reduce his culpability, especially considering his history of violence.

We conclude the trial court did not abuse its discretion in denying the Romero motion. The court articulated sound reasons for denying the motion, including the appellants history of threatening and violent conduct, his danger to society, and that prior efforts at punishment have had no effect. It appears this case comes within the spirit of the Three Strikes statutory scheme, and the appellant has failed to demonstrate otherwise. Additionally, even though its explanatory comments focused mainly on certain factors, the trial court is presumed to have considered all the relevant factors in absence of an affirmative record to the contrary. (People v. Myers (1999) 69 Cal.App.4th 305, 310.)

Under the abuse of discretion standard, an appellant who seeks reversal must clearly demonstrate that the trial courts decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of the prior convictions. (People v. Romero, supra, 99 Cal.App.4th at pp. 1433-1434.) Appellant has failed to meet this burden. Moreover, the record reflects that the trial court properly exercised its discretion when it failed to strike the prior felony conviction.

DISPOSITION

The judgment is affirmed.

_____________________

Kane, J.

WE CONCUR:

_____________________

Harris, Acting P.J.

_____________________

Wiseman, J.

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^[1] As there was no trial, these facts are derived from the preliminary hearing transcript and the evidence submitted in the appellants motion to suppress.

^[2]People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

^[3] The Supreme Court in People v. DeVaughn, supra, 18 Cal.3d at page 896, allowed a defendant to attack the validity of a guilty plea if the plea itself was induced by misrepresentations. Here, there is nothing in the record to suggest that the plea was induced by any false promise or that it was involuntary.

^[4] Penal Code sections 667, subdivisions (b) through (i), and 1170.12.

^[5] Penal Code section 422 provides: Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate familys safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

^[6] The probation report reflects the appellant is a member of a white supremacist gang.