P. v. Pepper

Filed 8/4/06 P. v. Pepper CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. James C. McGuire, Judge. Affirmed.

ORIGINAL PROCEEDING; petition for writ of habeas corpus. James C. McGuire, Judge. Petition denied.

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Douglas P. Danzig, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Cory Michael Pepper was charged with first degree murder (Pen. Code, § 187, subd. (a)) for killing the victim by attempting to decapitate him with a machete.[1] Defendant was also charged with the special circumstance of killing the victim by lying in wait (§ 190.260). Codefendants Justin VanMeter and Alan Patterson were also charged with this same offense. After the trial court severed defendant's trial from that of his codefendants, defendant pleaded guilty to the lesser included offense of second degree murder. Defendant also agreed to cooperate in the investigation of VanMeter and Patterson; to testify truthfully at VanMeter and Patterson's trials; and upon conclusion of the codefendants' trials, to be sentenced to 15 years to life in prison.

After pleading guilty, defendant cooperated in the investigation of the codefendants and testified at their trial. VanMeter and Patterson were convicted of the lesser included offense of involuntary manslaughter (§ 192, subd. (b)) and were sentenced to three years in prison.

Defendant thereafter filed a motion to withdraw his plea, which the trial court denied. The trial court sentenced defendant pursuant to the plea agreement to 15 years to life in prison with the possibility of parole.

On appeal, defendant contends (1) the trial court failed to exercise its discretion when denying defendant's motion to withdraw his guilty plea; (2) alternatively, the trial court abused its discretion in denying defendant's motion to withdraw his plea; and (3) denial of defendant's motion to withdraw his guilty plea violated defendant's federal constitutional liberty and due process rights.

Defendant also filed a habeas corpus petition (writ petition) which this court consolidated for purposes of the appeal. In his writ petition, defendant contends his attorneys failed to provide effective assistance of counsel. We conclude defendant has failed to meet his burden of providing sufficient facts alleging ineffective assistance of counsel (IAC).

The judgment is affirmed and the petition denied.

1. Factual Background

In the trial court, the parties to this appeal stipulated that the preliminary hearing transcript, containing the testimony of two investigating officers, provided a sufficient factual basis for defendant's guilty plea. The investigating officers testified at the preliminary hearing concerning statements and evidence provided by various witnesses, including defendant. Briefly, the facts contained in the preliminary hearing that are relevant to this appeal, are as follows.

Defendants VanMeter and Alan Patterson heard that Daniel Smith, the victim, was a snitch; he was giving information to the police concerning various people who were selling drugs. As a consequence, defendant, VanMeter and Patterson devised a scheme to kill Smith.

In carrying out their plan one evening in August 2002, defendant, VanMeter and Patterson lured Smith out of his home by inviting him to go with them to drink alcohol and smoke marijuana. They drove Smith to an isolated desert area in Twenty-Nine Palms. After the four walked up a hill and drank and smoked for awhile, VanMeter struck Smith with a machete. Defendant had gotten the machete from his brother. VanMeter handed the machete to Patterson, who then struck Smith with it. VanMeter told defendant it was his turn and told him to strike Smith. VanMeter said that if defendant did not participate, defendant would end up like Smith. Defendant then attempted to decapitate Smith by striking his neck with the machete.

Smith died of sharp, blunt force injuries to his head and neck.

In January 2003, defendant assisted investigating officers in locating Smith's decomposed body in the desert.

2. Waiver of Right to Appeal

On appeal, defendant challenges the trial court's ruling denying his motion to withdraw his guilty plea. The People argue defendant waived his right to appeal by entering into a written plea agreement containing a provision stating: â€