P. v. Clark

Filed 3/28/08 P. v. Clark CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. James M. Stuart, Judge.

Victor S. Haltom, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Kelly E. Lebel, Deputy Attorneys General, for Plaintiff and Respondent.

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David Rea Clark stands convicted, following his no contest plea, of mayhem (Pen. Code,^[1] 203). Sentenced to eight years in prison, he now appeals, contending the trial court lacked authority to vacate his initial pre-preliminary hearing no contest plea; hence, he is entitled to have that plea reinstated and to be sentenced thereon. For the reasons that follow, we will conclude that reconsideration of this issue, which was the subject of our prior opinion (Clark v. Superior Court (Sept. 28, 2005, F047630) [nonpub. opn.]), is barred by the law of the case doctrine and, accordingly, we will affirm.

PROCEDURAL HISTORY^[2]

Insofar as the record shows, early on January 7, 2005, Clark was a passenger in his truck, which was being driven by Elizabeth Hildebrand.^[3] The couple, who had been drinking heavily, began to argue. Clark demanded the keys to his truck; when Hildebrand refused, Clark bit the top of her right thumb, leaving a bruise and a small cut. She pulled away from him, at which point he walked to the drivers side of the vehicle. As Hildebrand began to exit, Clark opened the door and acted as if he was going to kiss her. As his lips touched hers, he said, Youre going to be sorry for that[.] He then bit the lower portion of her lip completely off, punched her in the chest, and kicked her in the back. The deputy who responded to the hospital observed that Hildebrands lower lip was completely bitten off, and she also had bruising and a small wound to the top of her right thumb. She also complained of pain to her chest and back, and expressed fear that Clark would kill her. Deputies subsequently learned that Clark falsely report[ed] Hildebrand had stolen his truck.

As a result of the incident, on January 11, 2005, complaint No. BF108910 was filed in the Kern County Superior Court, Bakersfield Judicial District, charging Clark with battery involving the infliction of serious bodily injury ([ ]  243, subd. (d); count 1) and mayhem ( 203; count 2). As to each count, it was further alleged that Clark had served a prior prison term ( 667.5, subd. (b)). Clark pled not guilty and denied the special allegations.

On January 21, 2005, a pre-preliminary hearing was held before Judge Oberholzer. Following plea negotiations, in which Judge Gildner was involved, the People were granted leave to amend the complaint to add count 3, which charged Clark with violating section 273.5 [(cohabitant abuse resulting in traumatic condition)] and alleged that he had served a prior prison term. Clark was advised of, and waived, his constitutional rights (Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122), and he was further advised that the maximum term he could receive under the negotiated plea was five years in prison.^[4] The parties stipulated that there was a factual basis for the plea contained in the police reports and their further stipulation that Clark and Hildebrand were living together at the time of the offense. Clark then entered a no contest plea to count 3 ( 273.5) and admitted having served a prior prison term ( 667.5, subd. (b)). The court accepted the plea, found there was a factual basis therefor, found that Clark had knowingly and intelligently waived his rights and voluntarily entered the plea, and expressly found Clark to be guilty. The People then moved to dismiss the remaining counts and allegations, on condition that the plea remain in full force and effect. The motion of conditional dismissal was granted. Last, the court secured an Arbuckle waiver^[5]with respect to the sentencing judge, then set the matter for sentencing, certified the case to superior court, and referred the matter to the probation department for presentence investigation and report.

In his pre-sentencing interview with the probation officer, Clark admitted culpability. Based on a finding of one circumstance in mitigation and four in aggravation, the probation officer recommended imposition of the upper term plus an additional year for the enhancement.

Sentencing was originally set for February 22, 2005, before Judge Westra. At that time, defense counsel confirmed that there was no legal cause why the hearing could not proceed, and he then set out what he saw as additional factors in mitigation and asked the court to impose the middle term. The prosecutor then related that Hildebrand had not been contacted prior to the taking of the plea, as she had relocated. She subsequently contacted the prosecutor and asked to be allowed to address the court, but was ill on the date of sentencing. Based on the grotesque injury and the permanent disfigurement inflicted by the defendant on the victim, the People requested that sentencing be continued to permit Hildebrand to appear. Barring that, the prosecutor asked the court to follow the probation officers sentencing recommendation. When the court asked whether the People would be moving to set aside the plea in light of Hildebrands anticipated comments, the prosecutor replied that she was unsure whether the People could do that. The court opined that it would be appropriate to hear from the victim before deciding whether to impose four years or five. Defense counsel did not oppose the request for continuance. Although the reporters transcript shows that the court ordered the matter continued to March 10 in this courtroom, the docket entry states that the matter was to be heard by Judge Gildner, as he negotiated the plea.

On March 10, the matter came before Judge Gildner. Defense counsel submitted the matter on the plea bargain; when the court asked the prosecutor (now Mr. Vendrasco) whether he had any comments, the tentative being five years, the prosecutor asked that Hildebrand be allowed to address the court. In part, Hildebrand related that her face was permanently disfigured, and that she did not believe five years was an adequate sentence. [ ] [The court offered to give serious consideration to rejecting the deal, saying it had the power to do so and that, if convicted, Clark likely would serve a substantial period of time beyond five years.]

After Hildebrand expressed the opinion that Clark would have killed her had she not tricked him in order to escape, she reiterated her belief that five years was inadequate. [ ] [The prosecutor then explained that part of the reason for the plea was that, at the time, his office had had no contact with Hildebrand and was unaware of the seriousness of the injury and disfigurement. Now that that was known, the prosecutor had no objection if the court wished to reject the plea. When the court said its tentative ruling was to reject, defense counsel stated his belief that the extent of the damage was known and was part of the negotiations. The court then rejected this disposition and set the matter for further proceedings.]

The next day, the People noticed a motion to file an amended complaint, which would add aggravated mayhem ( 205) to the two counts originally charged. On March 14, the parties appeared before Judge Lewis. New defense counsel, Mr. King, stated that Clark would not be withdrawing his plea, and requested immediate sentencing on the section 273.5 charge plus the prior prison term allegation. The prosecutor argued that the issue was moot, as the plea had been rejected. Defense counsel responded that this was a no deal agreement, which differed from cases involving an agreed-upon sentence limitation. Here, there was no such imitation, but instead there was a straight up plea to one count of the complaint. Counsel reiterated that Clark would not withdraw that plea, and again asked the court to sentence in accordance therewith. After further argument [ ], the court set the matter for further hearing before Judge Oberholzer (who took the plea), and continued the motion to amend the information.

On March 16, the parties appeared before Judge Oberholzer, who transferred the matter to Judge Westra, who transferred the matter back to Judge Gildner. Judge Gildner clarified that, since he rejected the plea, there was no plea to withdraw. He also disagreed with the defense argument that there was a difference between rejecting the plea bargain and rejecting the plea itself. In his view, the rejection restored the case to the status quo ante. [ ] [Judge Gildner observed that the offense was not a violation of section 273.5, as he had a woman whose lip was bit off, and that the consequences to the victim were not known to the court at the time of the plea.]

On March 18, the parties appeared before Judge Bush for purposes of the Peoples motion to amend the complaint, and for resetting of the preliminary hearing. Defense counsel objected to the proceedings on various grounds and against requested immediate sentencing pursuant to the plea. The court granted the Peoples motion to amend;^[[6]] defense counsel then entered pleas of not guilty ( 1016, subd. 2), former judgment of conviction (id., subd. 4), and once in jeopardy (id., subd. 5). The matter was then set for preliminary hearing and pre-preliminary hearing.

(This ends our quotation.)

On March 23, 2005, Clark filed a petition for writs of mandate and prohibition with this court (F047630). On July 1, we issued an order to show cause. On September 28, we issued our opinion, in which we framed the question before us as, When a plea agreement is reached and a no contest plea accepted prior to a preliminary hearing, can the sentencing court reject the plea at the time of sentencing? (Clark v. Superior Court, supra, at pp. 1-2 [nonpub. opn.].) We held that, under the circumstances of this case, the sentencing court could do so. (Id. at p. 2.) In so holding, we rejected Clarks claims that the trial court lacked authority to withdraw its approval of the plea prior to imposition of sentence (id. at pp. 7-22), that nullification of the plea violated Clarks right to due process of law (id. at p. 22, fn. 12), that the trial courts action violated the doctrine of separation of powers (id. at pp. 23-24), that nullification of the plea violated Clarks right not to be twice put in jeopardy (id. at p. 25-26), and that Clark was entitled to be sentenced on his no contest plea and further proceedings were barred (id. at p. 27). Accordingly, we denied the writ petition. (Ibid.) The California Supreme Court denied review on December 21, 2005 (S138626), and remittitur subsequently issued.

On January 20, 2006, a new plea agreement was reached. As a result, Clark pled no contest to count 2 (mayhem), on condition that he receive no more than eight years in prison. The remaining counts and enhancement allegations were dismissed on condition that the plea remain in full force and effect, and the court agreed to issue a certificate of probable cause. On February 9, Clark was sentenced to eight years in prison, the trial court issued a certificate of probable cause, and notice of appeal was timely filed.

DISCUSSION

Clarks sole contention on appeal is that the trial court lacked authority to vacate or reject his initial no contest plea, so that he is entitled to have that plea reinstated and to be sentenced thereon. As he candidly admits, we rejected that issue on the merits in our opinion in Clark v. Superior Court, supra, (Sept. 28, 2005, F047630) [nonpub. opn.]. The question now is whether the law of the case doctrine bars reconsideration of the claim. We conclude that it does.

Under the doctrine of the law of the case, a principle or rule that a reviewing court states in an opinion and that is necessary to the reviewing courts decision must be applied throughout all later proceedings in the same case, both in the trial court and on a later appeal. [Citations.] (People v. Jurado (2006) 38 Cal.4th 72, 94.) The doctrine of the law of the case does not extend to points of law which might have been but were not presented and determined on a prior appeal. [Citations.] (DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 179, italics omitted.) While, in order for the doctrine to apply, the point of law involved must have been necessary to the prior decision and actually presented to, and determined by, the court (People v. Gray (2005) 37 Cal.4th 168, 197), the doctrine does extend to questions that were implicitly determined because they were essential to the prior decision. [Citations.] (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 309.)

The principal reason for the doctrine is judicial economy. (People v. Stanley (1995) 10 Cal.4th 764, 786.) The doctrine applies to criminal as well as civil matters (ibid.), and to pretrial writ proceedings when, as here, the appellate court issues an order to show cause or alternative writ, the matter is fully briefed, there is an opportunity for oral argument, and the cause is decided by a written opinion (Kowis v. Howard (1992) 3 Cal.4th 888, 894; see People v. Haley (2004) 34 Cal.4th 283, 310, fn. 9). However, [b]ecause the rule is merely one of procedure and does not go to the jurisdiction of the court [citations], the doctrine will not be adhered to where its application will result in an unjust decision, e.g., where there has been a manifest misapplication of existing principles resulting in substantial injustice [citation], or the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations [citation]. (People v. Stanley, supra, 10 Cal.4th at p. 787.)

Appellant does not appear to contend the controlling rules of law applied to his case in the prior writ proceedings have been altered or clarified by an intervening decision, and we are aware of no such new authority. (See People v. Turner (2004) 34 Cal.4th 406, 417, fn. 2.) He does claim, however, that relevant federal precedent demonstrates he is entitled to be sentenced under his original plea, and that said precedent was not addressed in the writ proceedings.

The precedent cited by appellant concerns principles of due process, separation of powers, and jeopardy. Each point of law was necessarily and actually determined by us in our opinion in the writ proceedings, albeit, in the case of appellants claim his due process rights were violated, in conclusory form.^[7] (Clark v. Superior Court, supra, at pp. 22, fn. 12 [due process], 23-24 [separation of powers], 25-26 [jeopardy] [nonpub. opn.]. That we may not have addressed the specific cases now cited by appellant is immaterial. Insofar as the law of the case doctrine is concerned, [f]inality is attributed to an initial appellate ruling so as to avoid the further reversal and proceedings on remand that would result if the initial ruling were not adhered to in a later appellate proceeding. [Citation.] (People v. Stanley, supra, 10 Cal.4th at pp. 786-787.) Thus, the fact new counsel may find a different way to present an argument, or other authorities to support it, does not render the doctrine inapplicable.

At most, appellant has merely presented grounds for possible disagreement with our prior ruling. However, in order for us to conclude we should not adhere to the doctrine of law of the case because its application would result in an unjust decision, more must be shown than that a court on a subsequent appeal disagrees with a prior appellate determination. (People v. Shuey (1975) 13 Cal.3d 835, 846, disapproved on other grounds in People v. Bennett (1998) 17 Cal.4th 373, 389-390, fn. 4.) Instead, judicial order demands there must at least be demonstrated a manifest misapplication of existing principles resulting in substantial injustice before an appellate court is free to disregard the legal determination made in a prior appellate proceeding. (People v.Shuey, supra, at p. 846; accord, People v. Turner, supra, 34 Cal.4th at p. 417; People v. Stanley, supra, 10 Cal.4th at p. 787.) No such showing has been made here.

In summary, our prior opinion in case No. F047630 is the law of the case, and we decline to address appellants renewed arguments concerning his initial no contest plea. (See People v. Stanley, supra, 10 Cal.4th at p. 790.)

DISPOSITION

The judgment is affirmed.

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^* Before Ardaiz, P.J., Harris, J. and Levy, J.

^[1] All statutory references are to the Penal Code.

^[2] By separate order, we have taken judicial notice of our record and opinion in case No. 47630. We now adopt the procedural history contained in our opinion in that case (Clark v. Superior Court, supra, at pp. 2-7 [nonpub. opn.].) Brackets together in this manner [ ], without enclosing material, are used to indicate deletions; brackets enclosing material are used to denote our insertions or additions, except when the brackets appear within a direct quotation. In those instances, the brackets and enclosed material are contained in the adopted material. Footnotes in the adopted material have been renumbered sequentially. (See Municipal Court v. Superior Court (Gonzalez) (1993) 5 Cal.4th 1126, 1128-1129 & fn. 1 [adoption of lower court opinion]; Mayer v. C.W. Driver (2002) 98 Cal.App.4th 48, 61 [judicial notice of background facts contained in courts unpublished opinion in prior appeal in case]; Miller v. Metzinger (1979) 91 Cal.App.3d 31, 33, fn. 1 [same]; see Cal. Rules of Court, rule 8.1115(b) [citation of opinion not certified for publication].)

^[3] Our description of the underlying offense is taken from a report prepared by the Kern County Sheriffs Department, as summarized in the probation officers report (RPO).

^[4] This was the maximum sentence allowed by statute (four years pursuant to  273.5, subd. (a), plus one year pursuant to  667.5, subd. (b)).

^[5]People v. Arbuckle (1978) 22 Cal.3d 749.

^[6] [The amended complaint charged Clark with battery involving the infliction of serious bodily injury ( 243, subd. (d); count 1), mayhem ( 203; count 2), and aggravated mayhem ( 205; count 3), and alleged service of a prior prison term ( 667.5, subd. (b)) as to each count.]

^[7] Although we summarily rejected appellants due process argument, we discussed at length the opinion in People v. Mikhail (1993) 13 Cal.App.4th 846, which in turn found a due process violation. (Id. at p. 857; see Clark v. Superior Court, supra, at pp. 17-22 [nonpub. opn.].)