P. v. Eddines

Filed 10/30/06 P. v. Eddines CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard R. Romero, Judge. Affirmed.

Micah Josiah Eddines, in pro. per., and Randi Covin, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

__________________________________________

Micah Eddines appeals from the judgment entered following his plea of no contest to voluntary manslaughter and further admissions that a principal was armed with a firearm and that the offense was committed for the benefit of a criminal street gang. The charges arose from the March 29, 2005 drive-by homicide of Arthur Perez in Los Angeles. Defendant’s appointed counsel has filed a brief in which no issues were raised. (People v. Wende (1979) 25 Cal.3d 436, 441--442.) We sent notice to defendant that he could personally submit any contentions or arguments to this court. Defendant has done so, asserting the existence of an oral agreement regarding his plea that differed from the terms of a written agreement and his actual plea with respect to whether the gang enhancement could be imposed. We affirm.

BACKGROUND

Defendant and codefendant Jammies Bay were originally charged with murder. On August 16, 2005, defendant entered a written agreement with the prosecutor. Included in the agreement was that, in exchange for defendant’s truthful testimony in the trial against Bay, defendant would “plead guilty to voluntary manslaughter, in violation of Penal Code section 192(a), Penal Code section 12022(a)(1), principal armed with a firearm, and Penal Code section 186.22(b)(1), the gang allegation,” that “[a]t the conclusion of all proceedings against defendant Jammies Bay, . . . Eddines will be sentenced to a term of sixteen years in state prison,” and that “[a]t the time of sentencing, the murder charge will be dismissed.”

At a hearing on August 16, the prosecutor stated the following: “Good morning, Your Honor.

“I have been in consultation with Mr. Caillouette, the alternate public defender on this particular case who’s representing Mr. Eddines. I have made an offer to Mr. Eddines in this particular case to plead to a voluntary manslaughter with a principal armed with a firearm, [Penal Code section] 12022, [subdivision] (a)(1), and also the gang allegation, [section] 186.22, [subdivision] (b)(1), for a total term of 16 years in state prison, and, also, that his probation violation would run concurrent with that 16 years. In exchange for that plea, at sentencing, after he testifies truthfully in the matter against Mr. Bay, the murder charges and the [section] 12022.53, [subdivisions] (d) and (e)(1) and the gang allegation would be dismissed at sentencing after the testimony.

“So, in essence, Your Honor, he was facing 53 years to life in prison, but the People have made him an offer of 16 years in state prison in exchange for his testimony.

“Your Honor, I have an actual written contract that should be made part of the court file. And I’ll just refer to it just briefly so the court actually knows what’s part of the contract, but it should be in the court file. And I’ll ask to make a copy of this particular agreement.

“Essentially, the terms of the agreement are as follows:

“That in exchange for his testimony, he will plead to the voluntary manslaughter, the principal armed with a firearm, and the gang allegation. At sentencing the murder and other special allegations will be dismissed.

“And that the District Attorney’s Office will write a letter to the Department of Corrections on Mr. Eddines’s behalf indicating that he is a sensitive needs inmate and that he should be kept segregated from Mr. Bay and any other enemies he sees fit to include while he serves out the remainder of his time in custody.

“And that Mr. Eddines would essentially testify truthfully at all proceedings regarding the murder of Mr. Perez, and that essentially the court would decide whether or not Mr. Eddines was testifying truthfully and that Mr. Eddines would answer all questions proposed to him from the D.A., the defense attorney, or the judge.

“In essence, Your Honor, I have signed that agreement. It also indicates that counsel for Mr. Eddines has also looked at the agreement, signed it, dated it, as well as Mr. Eddines himself having signed that particular agreement.” (Italics added.)

After further discussion, the court stated, “So the motion to add a new count 4, violation of Penal Code section 192(a), voluntary manslaughter, with an allegation under Penal Code section 12022(a)(1), principal armed, plus an allegation of 186.22(b)(1), a so-called gang allegation is granted.[^[1]] Mr. Eddines, do you understand these new charges, the ones that the prosecutor has mentioned, your lawyer has mentioned, and I have just now added to the charges? Do you understand these?” Defendant responded in the affirmative.

Next, defendant elected to plead no contest rather than guilty. At that point he was admonished by the court that “by pleading no contest to the charge of voluntary manslaughter and to the allegations of principal armed and the gang allegation, you will be convicted, Sir, just as if you had pled guilty to voluntary manslaughter and just as if you had admitted as true those two special allegations.”

The court continued to admonish defendant regarding his plea, during the course of which defendant confirmed that his signature was on the written agreement. The following then ensued: “The Court: To the new charge, then, in count 4, voluntary manslaughter, Penal Code section 192(a), how do you plead, Sir? The Defendant: No contest. The Court: To the allegation that a principal was armed during the commission of that offense, in violation of Penal Code section 12022(a)(1), how do you plead? The Defendant: No contest. The Court: To the allegation that that offense was committed for the benefit of, at the direction of, and in association with a criminal street gang with a specific intent to promote, further, and assist in criminal conduct by gang members, to that gang allegation, Sir, how do you plead? The Defendant: No contest.”

On September 2, 2005, defendant was sentenced in accordance with the plea agreement. He subsequently filed in propria persona a request for certificate of probable cause, “contesting . . . the discovery of an illegal enhancement of a term for an unintentional crime.” The request was denied.

Before filing the opening brief, appointed counsel secured modification of the judgment in the trial court to strike the firearm enhancement (it had been stayed) and properly reflect defendant’s custody credits.

DISCUSSION

In his submission to this court, defendant asserts that at a hearing on August 8, 2005, the prosecutor agreed to dismiss the murder charge and the special allegations in exchange for defendant’s plea and that defendant entered his plea with the understanding that this would be done. Defendant presumably wishes to hold the People to this oral agreement. Defendant is not entitled to such relief.

There is no record of any court proceedings on August 8, 2005. Instead, defendant apparently is referring to the hearing of August 16, 2005, discussed above. In any event, when the words on which defendant relies are considered in the context of the entire proceedings, it is evident that the prosecutor misspoke when referring to dismissal of the enhancement allegations. Every other part of the record could not be more clear in indicating that the special allegations would be included in the reduced charge of voluntary manslaughter. Indeed, without the gang enhancement it would be impossible to achieve the aggregate 16-year term to which defendant repeatedly agreed. We imagine that the prosecutor’s error was not commented upon because, being so patently clear that the special allegations would remain, the prosecutor’s ill-chosen words simply did not register to those in the courtroom. Nevertheless, there is no reason in law or logic that defendant should be able to take advantage of the prosecutor’s trivial misstatement. Accordingly, his argument must be rejected.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

I concur:

JACKSON, J.^*

I concur in the judgment only.

VOGEL, J.

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^[1] The murder was alleged in count 1. The allegations of counts 2 and 3 were directly solely against codefendant Bay.

^* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.