Filed 10/18/17 P. v. Perry CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
ERIC DWAYNE PERRY,
Defendant and Appellant.
| H043744 (Santa Clara County Super. Ct. No. C1486521) |
Defendant Eric Dwayne Perry pleaded no contest to the charge of felony assault with means of force likely to create great bodily injury, in violation of Penal Code section 245, subdivision (a)(4),[1] and to four misdemeanor charges of spousal battery with corporal injury, in violation of section 273.5, subdivision (a); he also admitted three prior strike convictions. Other charges were dismissed pursuant to the plea agreement. Perry sought dismissal of the strike priors under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and moved, at several points in the proceedings, to appoint a new attorney under People v. Marsden (1970) 2 Cal.3d 118. The trial court denied the Romero request and the Marsden motions. In accordance with the plea agreement, the court sentenced Perry to four years in state prison and awarded credit for time served. Perry requested a certificate of probable cause, based on a detailed list of complaints about the handling of his case and his plea, which the court denied.
Perry filed an appeal from the judgment. The appeal challenges the sentence or other matters after the plea that do not affect the validity of the plea. (Cal. Rules of Court, rule 8.304(b)(4)(B).) Appointed appellate counsel has filed an opening brief that states the case and the facts but raises no issues. Perry was notified of his right to submit written argument on his own behalf but has not availed himself of the opportunity.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, 123-124, we have reviewed the entire record and have concluded that there are no arguable issues on appeal.
Factual and Procedural Background
The charges subject to the plea arose from several different incidents that took place in San Jose in February, March, April, and May 2014, and involved Perry and his ex-girlfriend, Michelle E.[2] Perry and Michelle had been in a dating relationship and living together for about one year.
On February 7, 2014, at about 1:45 a.m., officers were dispatched to Kaiser Hospital regarding a reported domestic violence assault. The victim, Michelle, said that when she came home a few hours earlier, Perry began yelling at her, then slapped her in the face with an open hand and struck her three times in the leg with her cane. He dropped her off at the hospital and later returned to pick her up, at which point he was arrested. Perry denied dating, living with, or having an altercation with Michelle. He said that he had brought her to the hospital because she was complaining of stomach pain. Michelle sustained a minor scrape on her left hand and a bruise on her left thigh.
On March 3, 2014, at about 3:30 a.m., officers responded to a reported domestic violence assault. Michelle was sitting on the ground outside of a Shell gas station, crying, shaking, and distraught. Her left eye appeared swollen and slightly bruised. She said that Perry grabbed her and punched her one time with a closed fist on her left eye during an argument over money. She declined medical attention and was uncooperative with the investigation.
On April 4, 2014, at about 10:00 p.m., police responded to a reported battered female at a San Jose fire station. Michelle was sitting in the lobby, crying and holding an ice pack to the left side of her face. She appeared to be intoxicated. She stated that earlier that evening she and Perry began arguing while in his car. She refused to go to a motel with him. He struck her with the back of his hand on the side of her face and said, “You bitch can’t do that to me.” He dropped her off at a Public Storage and she walked to the fire station to ask for help because she was in pain and had abrasions on the side of her face. Michelle stated that she was afraid of Perry and requested an emergency protective restraining order.
On April 17, 2014, at about 11:30 p.m., police responded to a reported disturbance in the street. Michelle said that she was walking down the street when Perry drove up. He got out of his vehicle and approached her aggressively, hit her one time in the face, and pushed her in the chest. He then drove off. She had pain with swelling and redness on the left side of her face. She also had a large black and blue bruise on her left arm. Michelle told the officer that about two days earlier, Perry had punched her in the left arm with a closed fist, causing pain and bruising.[3]
On May 10, 2014, at about 8:30 a.m., police responded to a reported domestic violence incident outside of a store. Michelle told them that Perry had pulled her by her hair and dragged her on the sidewalk. She was in pain where her hair was pulled. She reported that she had an active restraining order against him.
Surveillance video showed Perry pull into the parking lot in his vehicle, take Michelle’s belongings, and throw them to the ground. He then grabbed her by the hair and threw her to the ground, dragged her on the sidewalk, and took her phone which he threw to the ground. After returning to his vehicle, Perry ran over Michelle’s belongings and taunted her with the vehicle, then fled the scene.
On July 15, 2015, the Santa Clara County District Attorney filed a first amended consolidated complaint,[4] charging Perry as follows: stalking while a restraining order is in effect, a felony, on or about June 24, 2014 (§ 646.9, subd. (b); count 1); possession of methamphetamine, a felony, on June 24, 2014 (Health & Saf. Code, § 11377, subd. (a); count 2); possession of drug paraphernalia, a misdemeanor, on June 24, 2014 (id., former § 11364.1; count 3); assault by means of force likely to create great bodily injury, a felony, on May 10, 2014 (§ 245, subd. (a)(4); count 4); spousal battery with corporal injury, a misdemeanor, on February 6, March 3, April 4, April 12, and April 17, 2014 (§ 273.5, subd. (a); counts 5, 7, 8, 9, & 10); possession of a deadly weapon with intent to assault, a misdemeanor, on February 6, 2014 (§ 17500; count 6); and spousal battery, a misdemeanor, on April 20, 2014 (§§ 242, 243, subd. (e); count 11).
The complaint also alleged three prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) for first degree burglary (§ 460, subd. (a)), assault with a deadly weapon with personal infliction of great bodily injury (§ 245, subd. (a)(2)), and criminal threats (§ 422), and alleged a prior prison commitment (§ 667.5, subd. (b)).
Pursuant to a plea agreement entered that same day, Perry pleaded no contest to felony assault by means of force likely to create great bodily injury (count 4) and to misdemeanor spousal battery with corporal injury (counts 5, 7, 8, & 9). He also admitted three prior strike convictions. In exchange, the prosecutor agreed to a four-year maximum sentence, and to strike the prison prior and submit the remaining counts for dismissal at sentencing. Perry was advised that the maximum penalty exposure for the offenses was eight years in prison. Both counsel stipulated to a factual basis for the plea. The trial court, after ascertaining that Perry understood the trial rights he was waiving and the consequences of his plea, accepted the plea.
Perry filed a Romero request on October 9, 2015, for the court to exercise its discretion to strike the alleged strike priors, pursuant to section 1385, subdivision (a), and to place him on probation under the supervision of a special court program for veterans. The thrust of his request was that the domestic violence charges were less serious than the priors, which arose from an incident that occurred 14 years ago—since which time his record reflects a pattern of decreasing criminality. Perry argued that the strike priors, as well as several misdemeanor drug convictions and an additional felony conviction for possessing a dangerous weapon, largely coincided with a period following Perry’s discharge from the army and reflect a long-term struggle with substance abuse and psychological disorder. He asked the court to consider correspondence about his case from the Department of Veterans Affairs (VA), which stated that Perry had previously been diagnosed with Post Traumatic Stress Disorder (PTSD), and would be eligible for and would benefit from a specialized VA program of tailored mental health, substance abuse, and medical treatment services.
Perry also filed several Marsden motions during the proceedings and prior to sentencing, seeking the appointment of new counsel.
The first Marsden hearing was held on October 23, 2014. Perry raised several concerns about his appointed counsel’s advocacy and communication with him, including that his counsel had waived time over his objection, had failed to provide him with copies of police reports, and had acquiesced to the prosecutor adding strikes to the complaint. Counsel responded to the court’s questions about each of Perry’s concerns, including the circumstances of the time waiver, correspondence about police reports, and the prosecutor’s belated discovery of uncharged strike priors and subsequent refusal to move forward on previously-discussed plea terms. Perry remained dissatisfied and insisted that he would not speak to his counsel, who was doing nothing for him. The court found this to be “a one direction problem” and explained that Perry “cannot just choose to not participate and . . . get a new attorney.” The court denied the motion.
The second Marsden hearing was held on July 13, 2015, shortly before the filing of the first amended consolidated complaint. Perry stated that his counsel had not investigated the case and was doing “absolutely nothing.” He wanted to file a 995 motion and a Romero motion, to get copies of discovery and court transcripts, but stated that counsel had refused his requests and done nothing. He also claimed that counsel had once shown up drunk, smelling like alcohol. Counsel explained to the court the timing of her appointment to Perry’s cases,[5] her investigation of the charges, and her explanation to Perry regarding the appropriate timing for filing the motions he had cited. Counsel denied ever having had a drink before coming to court. The trial court explained its findings and denied the Marsden motion.
The third Marsden hearing was held on January 12, 2016, after entry of the plea agreement and the filing of Perry’s Romero request. Perry repeated certain complaints raised at the prior Marsden hearings. He questioned the basis for the competency proceedings, delays in his proceedings, his counsel’s availability, and why he had not been sentenced yet. He argued that he was eligible for veteran’s court but his counsel had refused to pursue it. Counsel acknowledged various delays in the proceedings and her efforts to explain that eligibility for the veteran’s court depended on the court’s decision on the Romero request. Perry acknowledged that his counsel intended to advocate for his interests at the hearing on the Romero request, which had been set for February 5, 2016, and the court denied the Marsden motion.
In a detailed written order, the court denied the Romero request on February 5, 2016. The court reviewed Perry’s personal history, military service, substance abuse and mental health history, prospects for treatment, and the nature of the charged offenses. It found his conduct to be violent and dangerous, and indicated at the hearing that while Perry would be able to avail himself of VA services after the prison commitment, his military service and PTSD diagnosis did not mitigate his actions.
The court sentenced Perry on June 24, 2016, in accordance with the plea agreement, to the lesser term of four years in prison for the felony assault (count 4) and one year in county jail for the spousal batteries (counts 5, 7, 8, & 9), concurrent with the prison term. The court advised Perry that his parole period would be three years. It awarded credits for time served of 1,472 days, consisting of 736 actual days plus 736 days under section 4019, and deemed the sentence served. The court also imposed fees and fines authorized by statute, ordered general restitution, and waived the $1,200 restitution fine based on inability to pay. Finally, the court imposed a no contact protective order of 10 years and prohibition on knowingly possessing a firearm or ammunition. The remaining counts of the complaint were dismissed.
Perry timely filed a notice of appeal from the judgment, stating that the appeal was based on “being railroaded.” His request for a certificate of probable cause listed numerous grounds, essentially asserting ineffective assistance of counsel and improper and unfair conduct by the district attorney and his own counsel in order to extract a plea.[6] The court denied the request.
DISCUSSION
We have conducted an independent review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and People v. Kelly, supra, 40 Cal.4th 106, and have concluded that there are no arguable issues on appeal. The trial court did not abuse its discretion when it denied the Marsden motions or the Romero request,[7] and no other arguable issues are apparent on this record.
DISPOSITION
The judgment is affirmed.
Premo, J.
WE CONCUR:
Rushing, P.J.
Grover, J.
People v. Perry
H043744
[1] Unspecified statutory references are to the Penal Code.
[2] This factual summary is taken from the probation officer’s report dated August 21, 2015, which is based on several reports from the San Jose Police Department.
[3] The incident of April 17, 2014 and that of two days earlier were charged separately in counts 10 and 9, respectively.
[4] The trial court permitted the consolidation of Perry’s cases over the objection of defense counsel.
[5] Perry’s criminal proceedings at the time were suspended for competency proceedings. It appears from the record that a doubt as to Perry’s mental competency (§ 1368) was declared in December 2014. Following the appointment of psychological examiners and submission of reports (§ 1369), the trial court found Perry competent in June 2015.
[6] Among others, Perry’s request for certificate of probable cause listed the following grounds: Three Strikes law violation—use of strike on a nonviolent felony; unlawful plea extraction of a plea; changing a misdemeanor charge to a felony so the district attorney can use the strikes; ineffective assistance of counsel; Civil Rights-Unruh, Ralph, and Bane Acts violations; self-incrimination, when the district attorney takes your deal back in the middle of a plea negotiation; delay of speedy trial with no preliminary hearing but rather placement into competency proceedings; use of strike over 10 years old with only two misdemeanors in 10 years; attorney was drinking before court; Santa Clara County courtrooms are not honoring the United States Constitution; Penal Code section 422.6; forced to waive time on misdemeanor charges; being uncooperative is not the equivalent of being incompetent; denial of three Marsden motions; police reports used in cases did not specify race of perpetrator and/or stated the wrong race.
[7] The trial court properly addressed each of the three Marsden motions at a closed hearing in which the court allowed Perry to state his complaints, after which defense counsel responded to Perry’s concerns. Under Marsden, substitute counsel should be appointed “only when . . . in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” (People v. Smith (1993) 6 Cal.4th 684, 696.) To the extent this required a credibility determination between the defendant and counsel at the hearing, “the court was ‘entitled to accept counsel’s explanation.’ ” (Ibid., quoting People v. Webster (1991) 54 Cal.3d 411, 436.)
Regarding the Romero request, although section 1385 does not require “an on‑the‑record statement of reasons when a court declines to strike a prior” (In re Coley (2012) 55 Cal.4th 524, 560), the court here provided a detailed summary of the basis for its denial, which is subject to review for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375.)
