P. v. Wood

Filed 4/12/07 P. v. Wood CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark V. Mooney, Judge. Affirmed.

PETITION for writ of habeas corpus. Denied.

William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Following remand for resentencing, the trial court sentenced Robert James Wood (Wood) to a term of 25 years in state prison. Wood appeals the judgment entered following imposition of the sentence and seeks a writ of habeas corpus.^[1] We affirm the judgment and deny the writ petition.^[2]

FACTUAL AND PROCEDURAL BACKGROUND

1.Facts.^[3]

On November 1, 2001, Wood possessed a destructive device, a pipe bomb.

On June 29, 2002, Wood was visiting with his daughter at a visitation facility when the visit was cut short by facility personnel, angering Wood. Woods daughter left the facility with her mothers husband, Fred Wimberly (Fred), and the two went to Freds apartment at 4620 Rodeo Lane in Los Angeles. Fred parked his green car on the street by the apartment.

At approximately 3:20 p.m., Fred received a telephone call from Wood. When Fred looked out his apartment window, he could see Wood standing next to his truck, talking on a cellular telephone. Wood, who had been staring at Freds apartment, then walked toward Freds car, kneeled down near the back of the vehicle and ignited and tossed a destructive device. As the destructive device exploded, Wood ran to his truck and drove off.

Marcus Curtis lived at 4700 Rodeo Lane. At some point between 3:00 and 3:30 p.m., Curtis saw Wood drive his truck down the street, stop in front of 4620 Rodeo Lane and throw a destructive device out the trucks window. The device exploded and Wood drove away. When Curtis went outside to see what Wood had thrown, he found a piece of metal in the street.

Two or three hours later, Wood returned to 4620 Rodeo Lane. From his front window, Curtis saw Wood walk between a green car and a white car. Wood kneeled down for a moment, then stood up and walked away. Curtis heard explosions and saw something shoot up from under one of the cars. A large ball of fire hit the gate at 4620 Rodeo Lane and set it on fire.

As Wood then walked down Rodeo Lane, Curtis and some neighbors followed, yelling at Wood. Children and an ice cream truck were also in the vicinity. Wood reached into a fanny pack he was wearing around his waist, took out a destructive device, lit it, and threw it behind him without looking back. When Curtis looked to see what Wood had thrown, he found another metal object in the street.

The mother of Woods daughter, Betty Wimberly (Betty), arrived at the apartment at 4620 Rodeo Lane at approximately 4:00 p.m. Fred left the apartment at approximately 5:30 p.m. At about 5:45, Betty was looking out the window when she saw Wood walk from his truck toward her car. Wood placed a destructive device under the right front passenger side tire of her car and a second device inside a metal casing imbedded in the grass between the sidewalk and the curb. Wood then fled toward his truck. The two devices exploded simultaneously. Betty heard a metal casing ricochet off the front gate.

During the evening hours of June 29, 2002, Los Angeles Police Officer Anthony Ariaz (Ariaz) went to 4700 Rodeo Lane. From an apartment there, Ariaz recovered a homemade device that appeared to have been detonated. Ariaz located an undetonated device under a car.

Los Angeles Police Officer Jacqueline Hickey (Hickey), a bomb technician, recovered a total of seven items from the area surrounding 4620 Rodeo Lane. The items consisted of: (1) a detonated pipe bomb, (2) an undetonated pipe bomb next to the white car, (3) detonated pipe bomb debris from 20 feet east of the undetonated pipe bomb, (4) two pipe bomb debris objects in a bag on the curb between 4620 and 4700 Rodeo Lane, (5) detonated pipe bomb debris in front of 4620 Rodeo Lane, (6) detonated pipe bomb debris leading into the walkway at 4700 Rodeo Lane, and (7) an item on the curb between 4620 and 4700 Rodeo Lane. All of the devices recovered by Hickey were destructive devices.

On July 3, 2002, Wood possessed materials with the intent to make a destructive device. The materials were found in a truck occupied by Wood and parked behind a Glendale apartment building.

2. Procedural History.

A jury found Wood guilty of six counts of possession of a destructive device with the intent to injure, intimidate or terrify (Pen. Code, 12303.3, counts 1 through 6), possession of materials with the intent to make a destructive device (Pen. Code, 12312, count 7), possession of a destructive device (Pen. Code, 12303, a lesser included offense of that charged in count 8 of the information), and possession of a destructive device (Pen. Code, 12303, a lesser included offense of that charged in count 9 of the information). Wood admitted previously having been convicted of a serious felony within the meaning of Penal Code section 667, subdivision (a), which provides for a sentence enhancement when the defendant has been convicted of a prior serious felony, and section 667, subdivisions (b) to (i), the Three Strikes law.

The trial court sentenced Wood to 16 years, 4 months in prison. Both Wood and the People appealed.

Following Woods appeal in People v. Robert James Wood, case number B176782, filed April 14, 2006, this court modified the judgment by striking [Woods] conviction for possession of a destructive device as a lesser included offense of count 9, leaving unchanged his remaining convictions, including his conviction for possession of a destructive device as a lesser included offense of count 8 and, as modified, affirmed the judgment. The trial court was directed to forward to the Department of Corrections an abstract of judgment reflecting the above modification.

Following the Peoples appeal in People v. Robert James Wood, case number B177349, filed June 28, 2005, this court determined the trial court erroneously failed to impose mandatory consecutive sentencing pursuant to Penal Code section 667, subdivision (c)(6) as to count two, one of counts three through six, and count seven. The court determined [c]onsecutive sentencing was mandatory because the offenses at issue were not committed on the same occasion, and not arising from the same set of operative facts within the meaning of Penal Code section 667, subdivision (c)(6). The court continued, This is true because, although the offenses in counts one, two, and one of counts three through six were committed on the same day, they were not committed close in time to each other. The offense at issue in count seven was committed on a different date, and in a different city, than the date on which, or the city in which, any other offense was committed. In addition, it was noted it appeared to be undisputed Woods two convictions for violations of Penal Code section 12303, as lesser included offenses of counts eight and nine, respectively, were each based on Woods single possession of a destructive device on November 1, 2001. Accordingly, this court indicated the trial court might wish to consider whether multiple convictions for both lesser included offenses was improper with the result that one such conviction must be stricken. This court then vacated the sentence imposed and remanded the matter for resentencing in accordance with its opinion. In all other respects, the judgment was affirmed.

At proceedings held on July 28, 2006, Wood requested the trial court to reduce all of his felony convictions to misdemeanors. The motion was heard and denied.

At the same proceedings, the trial court resentenced Wood in accordance with this courts opinion. As to count 1, a violation of Penal Code section 12303.3, the trial court imposed the middle term of five years in prison, doubled the term pursuant to the Three Strikes law, and imposed a five year enhancement pursuant to Penal Code section 667, subdivision (a) for Woods prior serious felony conviction, for a total term of 15 years in prison. For Woods conviction of count 2, a violation of Penal Code section 12303.3, the trial court imposed a consecutive term of one third the middle term, or 20 months, then doubled the term pursuant to the Three Strikes law, for a total term of 40 months in prison. As to count 3, a violation of Penal Code section 12303.3, the trial court imposed a consecutive term of one third the middle term, or 20 months, then doubled the term to 40 months pursuant to the Three Strikes law.

For count 4, a violation of Penal Code section 12303.3, the trial court imposed a concurrent, middle term of five years in prison, then doubled the term pursuant to the Three Strikes law. The court noted the crime alleged in count 4 was committed on the same occasion as that alleged in count 3 of the information. As to count 5, the court, again noting the offense occurred on the same occasion as that alleged in count 3, imposed a concurrent middle term of five years in prison, then doubled the term pursuant to the Three Strikes law. The trial court again imposed a concurrent middle term of five years with regard to count 6, a violation of Penal Code section 12303.3, then doubled the term pursuant to the Three Strikes law, for a total term of ten years.

As to count 7, a violation of Penal Code section 12312, the trial court noted the offense had occurred on a different occasion. Accordingly, the court imposed a consecutive term of one third the middle term, or one year in prison, then doubled the term pursuant to the Three Strikes law, for a total of two years. For Woods conviction of Penal Code section 12303, a lesser included offense of that alleged in count 8 of the information, the trial court noted the offense occurred on a separate occasion, then imposed a consecutive term of one third the middle term, or eight months, and doubled the term pursuant to the Three Strikes law. With regard to count 9, the trial court noted it had originally stayed imposition of sentence pursuant to Penal Code section 654. The court then stated, The Court of Appeal[] determined that should be stricken, and the court will strike that as to count 9 . . . .

In total, the trial court sentenced Wood to 25 years in prison. The trial court noted that, when Wood was first here, he served 741 days, plus 370, a total of 1,111 days of custody credit. The court then indicated that the Department of Corrections [would determine] his subsequent custody credits.

On September 1, 2006, Wood timely filed a notice of appeal from the judgment entered following resentencing.

On December 5, 2006, this court granted Woods request to take judicial notice of the appellate records in People v. Robert J. Wood, case number B176782, and People v. Robert J. Wood, case number B177349.

CONTENTIONS

After examination of the record, Woods appellate counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice dated December 14, 2006, the clerk of this court advised Wood to submit within 30 days any contention, ground of appeal or argument he wished this court to consider. Woods request for an extension of time within which to submit his contentions was granted to February 6, 2007.

On January 16, 2007, Wood filed a petition for writ of habeas corpus. In the petition he asserts: (1) his prior conviction of a serious felony was invalid and thus could not be used to enhance his sentence in the present case, (2) the trial court erred in denying his motion to dismiss his prior conviction in furtherance of justice pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and Penal Code section 1385, and (3) the trial court abused its discretion by denying his motion for a new trial or, in the alternative, to reduce his felony convictions to lesser included or related misdemeanors.

DISCUSSION

1. Woods prior serious felony conviction for assault with intent to commit rape was valid.

Wood asserts his prior serious felony conviction for assault with intent to commit rape in violation of Penal Code section 220 was improper and thus could not be used to enhance his sentence in the present case.

a. Wood was properly advised of his constitutional rights before he entered his plea.

Wood asserts, before entering his plea to assault with the intent to commit rape, he did not knowingly waive his right to the assistance of counsel.

The record establishes Wood moved to proceed in propria persona at proceedings held on December 16, 1999. At that time, the trial court provided Wood with pro per paperwork and it was not until after Wood had completed the requisite paperwork that, on December 23, 1999, the trial court granted him pro per status. On the record before us, Wood cannot claim he did not knowingly and intelligently waive his right to counsel. Wood does not argue he was not competent and nothing in the record indicates his waiver was less than knowing and voluntary. (See People v. Stewart (2004) 33 Cal.4th 425, 513.)

Once Wood had waived his right to be represented by counsel, the trial court was not required to again advise him of that right before taking his plea to assault with the intent to commit rape. Before entering his plea, Wood was properly advised of and waived, among others, his right to a trial by the court or a jury, the right to confront and cross-examine witnesses, the right to subpoena witnesses and the privilege against self-incrimination. (See Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122, 132-133.) He was also advised of the nature of the charges against him and the maximum penalty which he faced.

It should be noted, after entering his plea of no contest to the charge of assault with intent to commit rape, Wood made a motion to withdraw the plea. However, in a minute order dated February 29, 2000, the trial court indicated the transcript of the plea proceedings showed Wood fully understood the nature of the charges against him, that he was facing a maximum time in custody of all charges of at least 20 years and that the court believed he had received a good deal when the People offered him a six year suspended state prison sentence, contingent upon his serving one year in county jail followed by five years of formal probation. The minute order further indicates, [i]mportantly, defendant [Wood], in response to questions during the taking of [the] plea, stated that no threats had been made against him and that he was pleading guilty freely and voluntarily and because . . . [he was] in fact guilty.

Finally, at proceedings held on April 11, 2000, the trial court considered, then denied, Woods petition for writ of habeas corpus. In doing so, the court noted Wood had asserted his plea had not been freely and voluntarily made. The court responded by recognizing the transcript of [Woods] plea show[ed] that he [had been] fully advised of his constitutional rights, the consequences of his plea and the sentence he would receive. The trial court continued, The court also spent substantial time discussing the case with defendant [Wood] (who [w]as proceeding in pro per) prior to the taking of his plea and observed defendant carefully. This colloquy and the courts observations of the defendant over a substantial time period permitted the court to form the opinion that defendants plea was freely and voluntarily made, with a knowing and intelligent waiver of his constitutional rights.

b. There existed a factual basis for the plea.

Wood asserts there was no factual basis for his plea of no contest to assault with the intent to commit rape. The contention is without merit.

At the preliminary hearing, the victim, Marguerite R., testified that for some time she had been staying as a guest in Woods home. At approximately 4:00 a.m. on October 19, 1999, she was sitting in a chair watching television when Wood approached her, told her she was pretty, then said, I am gonna fuck you. Although Marguerite R. told Wood she [didnt] think so, Wood reached for her and wrasseled with her clothes, ripping her shirt. Wood threw Marguerite R. onto the bed, straddled his legs across [her], and began fumbling with her breasts and trying to kiss her. After removing his own shirt, Wood attempted to remove Marguerite R.s pants. When he was unable to do so, Wood reached over to a dresser, grabbed a switch blade and ordered Marguerite R. to remove her pants. Afraid, Marguerite R. dropped her pants. She then ended up back in the bed where Wood fumbled with [her] body, penetrating her vagina with his fingers. Wood unzipped his pants and pulled out his penis, but was unable to maintain an erection. Wood told Marguerite R. that if she did not cooperate, he would hurt [her] and [her] family. Finally, after approximately 40 minutes, Wood allowed Marguerite R. to get up and go to the rest room. For just a moment, Wood turned around so that his back was facing Marguerite R. Marguerite R. took this opportunity to quickly wrap herself in a towel and run from the house.

2. The trial court properly denied Woods request the trial court, on its own motion, dismiss his prior serious felony conviction.

Wood contends the trial court erred when it denied his motion made pursuant to People v. Superior Court (Romero), supra, 13 Cal.4th 497, and Penal Code section 1385 to dismiss his prior conviction of assault with intent to commit rape.

a. Assault with the intent to commit rape is a serious felony.

Woods initial assertion the crime of assault with the intent to commit rape does not constitute a serious felony is without merit. Penal Code section 667, subdivision (a)(4) provides: As used in this subdivision, serious felony means a serious felony listed in subdivision (c) of [Penal Code] Section 1192.7. Penal Code section 1192.7, subdivision (c) states: As used in this section, serious felony means any of the following: . . . (10) assault with intent to commit rape or robbery . . . .

Wood relies on People v. Glee (2000) 82 Cal.App.4th 99 to argue, because he was ordered to serve one year in county jail, to be followed by five years of formal probation, his conviction of assault with the intent to commit rape was converted from a felony to a misdemeanor. Woods reliance on Glee is misplaced.

In Glee, a jury found the defendant guilty of burglary and that he previously had been convicted of assault with a firearm. The assault of which [Glee] was convicted [in his prior case] was a wobbler, punishable either by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.  (People v. Glee, supra, 82 Cal.App.4th at p. 102.) Glee had pleaded guilty to the assault charge in return for the promise that his sentence would be a grant of probation, with a year in the county jail, with probation to terminate at the end of that year.  (Id. at p. 101.)

Penal Code section 667, subdivision (d)(1) provides, in part: The determination of whether a prior conviction is a prior felony conviction for purposes of subdivisions (b) to (i), inclusive[, the Three Strikes law], shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor. . . . Under Penal Code section 17, a felony is automatically converted to a misdemeanor [a]fter a judgment imposing a punishment other than imprisonment in the state prison. [Citation.] (People v. Glee, supra, 82 Cal.App.4th at p. 102 (original italics).) Since Glee was granted probation with one year in county jail and probation to terminate at the end of that year, his conviction amounted to a misdemeanor.

In the present case, Wood pleaded guilty to assault with the intent to commit rape in violation of Penal Code section 220. That crime is not a wobbler. Subdivision (a) of section 220 provides for punishment of imprisonment in the state prison for two, four, or six years. Although Wood was ordered to serve one year in county jail, that term was to be followed by five years of formal probation. More importantly, probation was granted only after the trial court imposed, then suspended, a state prison term of six years. Under these circumstances, Woods conviction of assault with the intent to commit rape constituted a felony.

b. The trial court properly exercised its discretion when it denied Woods request the court, on its own motion, dismiss his prior felony conviction of assault with the intent to commit rape in furtherance of justice.

In a motion filed June 23, 2004, Wood requested the trial court, on its own motion, to dismiss in the furtherance of justice, pursuant to Penal Code section 1385 and People v. Superior Court (Romero), supra, 13 Cal.4th 497, his prior serious felony conviction for assault with intent to commit rape. The trial court denied the motion at a hearing held on July 12, 2004. Wood contends the trial court erred in declining to strike the prior.

It has been determined 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. . . . (People v. Williams (1998) 17 Cal.4th 148, 161.)

A review of Woods probation report indicates his criminal history began in 1966, when he was found guilty of trespass. In 1967, Wood was deemed a fugitive from justice in both Toledo, Ohio and Washington, D.C., and, in Kansas City, Missouri, pleaded guilty to assault with the intent to rob. In 1968, Wood unlawfully possessed a sawed-off shotgun and again committed an assault with the intent to rob. Wood committed a burglary in Carson City, Nevada in 1971 and, in 1976, he committed a robbery in Seattle. In 1977, Wood was convicted of forging checks and served a term in prison for the offense. Wood was found guilty of felony burglary in 1984 and served a prison term for the conviction. In 1993, Wood was found to have committed lewd and lascivious acts with a child under the age of fourteen. In 1997, he was found to have inflicted corporal injury on a spouse. In 1998, he both committed the felony of inflicting corporal injury on a child and was found guilty of petty theft. In 1999, Wood was on probation in three separate matters.

Woods prior serious felony conviction of assault with the intent to commit rape was both serious and violent. After forcibly sexually assaulting the victim, Wood threatened her with a knife.

Woods present offenses show a distinct disregard for the safety of others. He placed and threw explosive destructive devices in places where persons, including children, were present. As stated in the probation report, Wood has demonstrated that he is a serious danger and risk to the community. . . . It is believed that the explosives used . . . were capable of causing great bodily injury or death [f]or anyone in close proximity.

In view of the nature and circumstances of his present crimes as well as his prior conviction for assault with the intent to commit rape, and also in light of the particulars of his background, character, and prospects, which [are] not positive, [Wood] cannot be deemed outside the spirit of the Three Strikes law in any part, and hence may not be treated as though he had not previously been convicted of a prior serious or violent felony. (People v. Williams, supra, 17 Cal.4th at pp. 162-163; see People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631.) The trial court properly exercised its discretion when it declined to strike Woods prior felony conviction of assault with the intent to commit rape.^[4]

3. The trial court properly denied Woods motion for a new trial or, in the alternative, to reduce the offenses of which he was convicted to misdemeanors.

Wood asserts the evidence at trial cannot support the jurys findings he possessed destructive devices with the intent to injure, intimidate or terrify in violation of Penal Code section 12303.3, possession of materials with the intent to make a destructive device in violation of Penal Code section 12312, and possession of a destructive device in violation of Penal Code section 12303. He argues the evidence at trial supports only a finding he unlawfully committed the misdemeanor offenses of the possession and discharging of fireworks in violation of various sections of the Health and Safety Code. Wood asserts this is particularly true in view of the fact that some items of evidence presented during trial could not later be located and submitted to the jury during deliberations. He indicates the failure of the jury to have the opportunity to examine these items denied him a fair trial because, had the jurors had the opportunity to do so, they would have seen that the instruments were safe and reusable. Under these circumstances, the trial court should have granted Woods motion for a new trial or, in the alternative, reduced the offenses of which the jury found him guilty to the misdemeanor Health and Safety Code violations.

In its opinions in People v. Robert James Wood, case number B176782, filed April 14, 2006, and People v. Robert James Wood, case number B177349, filed June 28, 2005, this court determined either that the evidence was sufficient to support Woods felony convictions or that the question had been deemed waived as a matter of law. Accordingly, Wood cannot now relitigate the issue. (People v. Barragan (2004) 32 Cal.4th 236, 246 [Under the law of the case doctrine, when an appellate court  states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the cases] subsequent progress, both in the lower court and upon subsequent appeal . . . .  ]; People v. Shuey (1975) 13 Cal.3d 835, 841 [Where, upon an appeal, the supreme court [or court of appeal], in deciding the appeal, states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress . . . . ].) Woods felony convictions are supported by the evidence and the trial court properly denied his motion for a new trial or, in the alternative, to reduce the convictions to misdemeanors.

REVIEW ON APPEAL

We have examined the entire record and are satisfied Woods counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

The petition for writ of habeas corpus is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

CROSKEY, Acting P. J.

ALDRICH, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1] Woods request that his petition for writ of habeas corpus be consolidated with the present appeal is denied. (See People v. Waidla (2000) 22 Cal.4th 690, 703, fn. 1.) However, in the interest of judicial economy, the petition will be considered concurrently with the appeal. (See In re Baker (1988) 206 Cal.App.3d 493, 496.)

^[2] On January 30, 2007, Wood filed in this court a motion to seek a preliminary injunction against [the prison warden] to allow [him] unimpeded access to the prison law library . . . . The motion is denied as moot. From the papers filed by Wood, it is apparent he was provided sufficient access to the library.

^[3] The facts are taken from this courts opinions in People v. Robert James Wood (June 28, 2005, B177349 [nonpub. opn.]) and People v. Robert James Wood (Apr. 14, 2006, B176782 [nonpub. opn.]). Accordingly, we take judicial notice of the opinions in those matters. (Evid. Code, 452, subd. (d), 459.)

^[4] Woods assertion he challenged the constitutionality of the prior conviction in the trial court is not supported by the record. In fact, Wood admitted having been previously convicted of assault with the intent to commit rape.