P. v. Chavez

Filed 5/12/06  P. v. Chavez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

            APPEAL from a judgment of the Superior Court of Tulare County.  Valeriano Saucedo, Judge.

Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Carlos A. Martinez and Catherine G. Tennant, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

            Appellant, Angel Anthony Chavez, was found guilty after a jury trial of first degree murder with the special circumstance of lying in wait.  The trial court sentenced Chavez to two consecutive life terms without the possibility of parole because of an allegation that Chavez had a qualifying prior serious felony conviction for residential burglary pursuant to the three strikes law (Pen. Code, §  1170.12, subd. (c)(1)).^[1]  The court also sentenced Chavez to a determinate five-year term for a prior serious felony enhancement.

            On May 11, 2004, we issued our first opinion affirming Chavez's conviction.  We vacated his sentence, however, because the trial court had failed to try the issue of the truth of Chavez's burglary conviction in 1993.  After remand, the court conducted a trial without a jury and found that Chavez suffered a qualifying prior serious felony conviction for his 1993 burglary conviction.  The court sentenced Chavez to two consecutive life terms without the possibility of parole plus a five-year determinate term for the prior serious felony enhancement.

            On appeal, Chavez contends there was insufficient evidence adduced to establish that he suffered a prior residential burglary conviction which qualifies as a serious felony under the three strikes law.  Chavez also contends the trial court deprived him of his constitutional right to a jury trial when it denied his request for a jury trial. 

PROCEDURAL AND FACTUAL SUMMARY

October 6, 2004, Hearing

            On October 6, 2004, Chavez filed a preemptory challenge to the trial judge who tried his case (Code Civ. Proc., §  170.6).  A new judge was assigned to preside over the trial of the prior conviction.  On October 6, 2004, the court heard and denied Chavez's motion to dismiss on speedy trial grounds.  Chavez moved to file a motion to strike his 1993 burglary conviction.  Chavez also sought to brief the issue of whether he was entitled to a jury trial on the truth of the prior conviction. 

            The court granted Chavez a continuance to prepare the motion.  During the proceeding, the prosecutor pointed out to the court that the evidence of the prior conviction was submitted into evidence as exhibit 40 and was used by the jury as a predicate offense for an allegation that Chavez committed the murder to further a criminal street gang.^[2]

November 8, 2004, Hearing  

            On November 8, 2004, the court heard and denied a motion by Chavez pursuant to People v. Marsden (1970) 2 Cal.3d 118.^[3]  During the proceedings that followed, the court expressly referred to a document from the burglary conviction which ordered that the entire file from the case, case No. 33216, be copied for Chavez to use.  The prosecutor explained that in the court's file in case No. 33216 there were copies of the plea transcript.  The prosecutor asked that he also be given a copy of that document because the People did not retain that document.  The court ordered that both sides be given equal access to the file and be permitted to make copies of the file.

November 10, 2004, Hearing

            On November 10, 2004, the trial court denied Chavez's motion to represent himself pursuant to Faretta v. California, supra, 422 U.S. 806.  The court addressed Chavez and asked whether he had received copies of documents from the prior conviction, if he had an opportunity to review the file in case No. 33216 with his counsel, and if Chavez had received all relevant information.  Chavez replied affirmatively to the court's questions.  Defense counsel stated for the record that he picked up a copy of the file the previous morning and spent 45 minutes reviewing the file with Chavez.

            During the November 10, 2004, hearing, defense counsel informed the court that he believed the burglary offense could be stricken because Chavez had not been properly advised of his constitutional rights.  The prosecutor objected to the motion because in the original trial, Chavez represented that he would admit the prior burglary conviction if he was convicted of murder.  Chavez did not then object to the validity of the prior. 

            The prosecutor pointed out that one of the exhibits admitted to the court as the basis for a predicate gang offense was proof of the prior burglary conviction.^[4]  The court stated it would err on the side of caution and granted Chavez's motion for a continuance to prepare a challenge to the validity of his guilty plea.

            At the conclusion of the hearing the prosecutor noted for the record that the People had requested the file from the 1993 burglary conviction be brought to court the previous month.  According to the prosecutor, he and defense counsel both reviewed the file which included the plea transcript.  The case was continued to November.  The court ordered that the file be copied and that each party was to receive the change of plea transcript and the probation report.  Both parties received these copies.  The prosecutor objected to a continuance as a delay tactic.  Defense counsel reiterated his reasons for seeking a continuance to prepare a motion to strike the plea.  Defense counsel did not object to the prosecutor's recitation of the procedural history of the instant action.

            Concerning the issue of whether Chavez was entitled to a jury trial on the truth of the 1993 burglary conviction, the court found that the California Supreme Court's decision in People v. Epps (2001) 25 Cal.4th 19 was controlling.  The court noted that Epps found it would be a rare case in which a trial was necessary on the truth of the prior conviction and denied Chavez's request for a jury trial.

Briefing

            The People's original trial brief, filed on October 4, 2004, requested the trial court take judicial notice of case No. 33216. 

            On December 3, 2004, Chavez filed his motion to strike the prior conviction.  Chavez filed a declaration stating that he was only 19 when he entered his guilty plea to residential burglary.  Chavez explained he had no opportunity to review the police report prior to changing his plea and did not have an adequate opportunity to discuss his case with the appointed public defender.  Chavez's counsel told him the judge indicated a sentence of probation and a term in county jail.  According to Chavez, his counsel told him he would lose his case.

            Chavez declared that he was under the influence of drugs when he was arrested near the scene of the burglary and made admissions to arresting officers.  Chavez stated he was not advised of his defenses.  Chavez said his attorney did not advise him that he needed to have criminal intent before he entered the victim's premises and he was not told that being under the influence of a restricted drug could constitute a defense on the element of criminal intent. 

            Chavez reiterated that he relied solely on his counsel's advice but was not told of potential defenses prior to entering his guilty plea.  Chavez did not recall waiving his right to an appeal or being advised that he could appeal his guilty plea.  The motion was based, in part, â€