Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR915357
Kline, P.J.
Noah Michael Parker appeals from a judgment entered on his plea of guilty to charge of mayhem and admission of the personal use of firearm. His court-appointed counsel has filed a brief raising no legal issues and requesting this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
PROCEEDINGS BELOW
On April 3, 2008, the District Attorney of Lake County filed a complaint charging appellant with attempted murder (Pen. Code, §§ 664/187, subd. (a)–count 1), mayhem (§ 203–count 2), felon in possession of a firearm (§ 12021, subd. (a)(1) –count 3), possession of methamphetamine for sale (Health & Saf. Code, § 11378–count 4), cultivation of marijuana (Health & Saf. Code, § 11358–count 5), and possession of marijuana for sale (Health & Saf. Code, § 11359–count 6). The complaint alleged numerous enhancements, chiefly personal use and intentional discharge of a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b)-(d)), armed with a firearm (§ 12022, subd. (a)(1)), and great bodily injury resulting in the victim becoming comatose due to brain injury and suffering paralysis (§ 12022.7, subd. (b)).
All subsequent statutory references are to the Penal Code unless otherwise indicated.
After defense counsel declared his doubt as to appellant’s competency in September 2008, the court ordered an evaluation pursuant to sections 1368 and 1369. A month later, the court found appellant incompetent and suspended criminal proceedings. Appellant was committed to Napa State Hospital for treatment in November 2008 but, due to overcrowding, was not placed there until May 2009. (All subsequent dates are in that year unless otherwise indicated.)
About a month and a half later, on July 2, appellant was returned to court with a certification of mental competency by the hospital director, and the court then reinstated criminal proceedings. The parties submitted preliminary examination on the basis of the police reports on July 17. Three weeks later, on August 7, the district attorney dismissed the charge of possession of methamphetamine for sale (count 4) for lack of sufficient evidence. On September 4, appellant executed a written plea waiver and entered a guilty plea to mayhem (count 2), and admitted the attached section 12022.5, subdivision (a) enhancement for personal use of a firearm. All other charges and enhancements were thereupon dismissed by the prosecution with a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754, 758.
The probation department recommended a sentence of 18 years in state prison. The sentencing memorandum submitted by the defense contended that appellant was not statutorily ineligible for probation under section 12022.53, subdivision (g), because he did not admit that allegation, this is an “unusual case” in which the interests of justice would best be served by granting probation, the circumstances in aggravation urged by the probation were “incorrectly analyzed, ” and there were mitigating circumstances. The district attorney maintained in his reply that appellant was not eligible for probation “because he used a firearm in the commission of mayhem” and admitted the section 12022.5 allegation in connection with his plea of guilty to violation of that offense.
At sentencing on December 30, the court declined to find this was an “unusual case” warranting a grant of probation. The court imposed the upper term of eight years on the mayhem offense, and a consecutive 10-year term for the personal use of a firearm. A $3,600 restitution fine was imposed, as were stayed parole restitution fines. Jurisdiction over victim restitution was reserved. Finally, the court awarded appellant credits of 641 days actually served, and 96 days for good conduct, for a total of 737 days of presentence custody credits.
Timely notice of appeal challenging the validity of the plea was filed on January 7, 2010. Appellant’s request for a certificate of probable cause was granted by the court on January 10, 2010.
FACTS
When appellant entered his plea, the parties stipulated that it was based on the facts set forth in the police report placed in evidence by the People at the preliminary hearing. The facts we recite are therefore taken from that report, which the trial judge summarized at the sentencing hearing.
After spending the day drinking, the victim, Timothy McCarty, went to a residence in his friend James Austin’s car in order “to handle some business, ” which Austin understood to mean McCarty was preparing for a fight. Though McCarty did not remember, he conceded it was possible that when he arrived at the residence he struck a male, appellant Noah Parker. At some point a female, Selena Sargent, came out of the house and shot at McCarty while he was standing in the driveway. Appellant then took the gun from Sargent and shot McCarty several times until he passed out.
McCarty awoke in the hospital. He suffered two gunshot wounds to the left wall of his chest, a grazing wound on the right side of his chest, a grazing would to his left arm, a “through and through wound” to his right shoulder, and a wound on his left back that damaged the T-9 spinal area and caused paralysis from the mid-chest down, as well as liver damage.
James Austin first told the police that McCarty was shot while riding in Austin’s car, but he later changed that story, describing a fight between McCarty and appellant. McCarty was drunk and provoked a fight with appellant on the latter’s front porch or deck, during which appellant exclaimed, “fuck you, you had no right to hit me.” Austin heard a “bang” and saw a woman standing on the deck with a handgun. McCarty jumped off the deck and ran to Austin’s car. Two more shots were fired and McCarty stumbled out of the vehicle and to the ground. Austin heard six shots fired. Appellant then told Austin to get McCarty out of there. Austin did not remember seeing McCarty in possession of any weapon.
Selena Sargent testified that she and appellant were in their back bedroom when they heard loud banging on the front door. Appellant handed her a pistol and went to the front door. Appellant and McCarty then started arguing; McCarty said he was “going to riddle the house with holes, ” then punched appellant in the face. Sargent then stepped between the two. When McCarty asked if she was going to shoot him, she fired a shot into the deck, about a yard away from him. McCarty then jumped off the deck and ran to the car. Appellant took the gun from Sargent, pushed her into the house, and followed McCarty. Sargent heard four or five shots fired and ran to the front of the house where she saw appellant helping Austin lift McCarty into the car.
Appellant told the police that he went to bed about 9:00 p.m. and was asleep when he heard banging on the front door. Sargent went to the door and asked who was there, and the person banging said, “It’s Tim from Fischer Towing. Open the fucking door, bitch. Tell Noah to get his fat ass out here. I’m going to fuck his shit up.” When appellant opened the door he was hit with a foreign object, and then ran back into the house to get a pistol.
Appellant said he fired the first shot from inside the house, but missed. McCarty then ran back to the car, but turned to come back at appellant, at which point appellant “plugged him three more times” from inside his door. When McCarty “lunged his hand in a forward motion, ” appellant fired three or four more rounds at him. Appellant then helped Austin put McCarty into the car and told him to get him to the hospital. Appellant did not know why McCarty was at his house or what he wanted; he only knew McCarty because a couple of years earlier McCarty had towed his car. When they came to the house, officers noticed a scrape and slight bruising under appellant’s left eye.
Appellant admitted giving the gun to Calvin Morris. Morris told the police that he bought marijuana from appellant every other day, and that on the night of the shooting he purchased crystal methamphetamine from him. Morris gave the gun, a 9 millimeter pistol he had locked in his safe, to the police. Eight 9 millimeter shell casings were found on appellant’s driveway and such shells were also found in appellant’s bedroom. A search of his house uncovered immature marijuana plants, 716 grams of processed marijuana, two digital scales, 800 coin-size Ziploc baggies, pay/owe sheets, two glass smoking pipes, and over $4,000 in cash.
The trial judge noted that in a letter to the court appellant stated that his actions were in self-defense and in defense of the women and children in the home that night. Appellant believed McCarty intended to harm him, he could have been killed himself, and he regretted what had happened. The court noted that appellant’s only prior convictions were for a misdemeanor battery in 1994, and a felony negligent discharge of a firearm in 1998. The court determined that appellant was ineligible for probation unless the court could find that this was “an unusual case warranting such a grant.”
The court repeatedly rejected appellant’s claim of imperfect self-defense and defense of others. Though it agreed McCarty initiated the altercation, the court indicated its belief that appellant exceeded the limits on the amount of force a homeowner can exert in the circumstances; because at the time multiple shots were fired by appellant, McCarty did not pose an imminent threat to him. The court indicated that the statutory presumption against probation was not overcome, but that even if it were, it would deny probation on the basis of appellant’s prior record of criminal conduct and the circumstances and seriousness of the present crime. (See Cal. Rules of Court, rule 4.414(a)(1) and (b)(1).) The court noted, among other things, that “[t]he manner in which the crime was carried out does demonstrate some planning and criminal sophistication on the part of the defendant when you look at it from the standpoint of him being in possession of marijuana for the purpose of sale and also in possession of a firearm arguably to provide him with protection while engaging in drug sales. In addition, Mr. Morris stated that the methamphetamine he purchased from the defendant on that day was a short time after the shooting occurred. And that’s something the Court looks at in terms of, you know, remorse. Somebody has just been shot by the defendant about six times or more, and, you know, before an hour or so passes, he’s selling methamphetamine. [¶] In addition, the defendant was an ex-felon, and he’s prohibited from possessing a firearm but he did possess a firearm on this occasion.” Considering, in addition, that appellant suffered a prior misdemeanor conviction for a crime of violence and a prior felony conviction for discharge of a firearm, the court found that “[t]he likelihood [appellant] would be a danger to others if not imprisoned is substantial.”
After providing the district attorney and defense counsel ample time to present their conflicting views of appellant’s eligibility for probation and the aggravating and mitigating circumstances, the court imposed the upper term earlier described.
DISCUSSION
Where, as here, an appellant has pled guilty to his or her offenses, the scope of reviewable issues is restricted to matters based on constitutional, jurisdictional, or other grounds going to the legality of the proceedings leading to the plea; guilt or innocence are not included. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896)
The trial court’s legal determination that appellant was statutorily ineligible for probation was not erroneous. The trial court concluded appellant was ineligible for probation under section 12022.53, subdivision (g), which bars grants of probation to persons who come within the terms of section 12022.53, because he pled guilty to an offense, mayhem, which is a qualifying felony under section 12022.53, subdivision (a)(2), and admitted that he personally used a firearm in the commission of that offense. In arguing that appellant was eligible for probation, defense counsel relied on section 12022.53, subdivision (j), which states, as material, that “[f]or the penalties in this section to apply, the existence of any fact required under subdivision (b), (c), or (d) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact....” (Italics added.)
In his sentencing memorandum to the court, defense counsel argued that though appellant pleaded guilty to mayhem and admitted the use of a firearm within the meaning of section 12022.5, subdivision (a), he “did not admit in open court any special allegations pertaining to Penal Code section 12022.53; therefore, [section 12022.53, subdivision (g)] does not apply and Defendant is eligible for probation.” In other words, defense counsel maintained that appellant’s admission of personal use under section 12022.5, subdivision (a)-which provides for an additional consecutive term of imprisonment for 3, 4, or 10 years for a person who uses a firearm in the commission of a felony-cannot be deemed an admission of personal use for purposes of section 12022.53, subdivision (g), which prohibits a grant of probation for any person who comes within the provisions of section 12022.53.
A somewhat different but nevertheless relevant argument was made and rejected in People v. McKissick (1984) 151 Cal.App.3d 439. In that case it was alleged, pursuant to section 12022.5, that the defendant used a firearm during the commission of a charged murder. After the defendant was convicted, the trial court denied probation on the basis of section 1203.06, which prohibits granting probation to one who uses a firearm in committing murder, even though the information did not cite section 1203.06. In affirming this determination, the Court of Appeal held that although section 1203.06, subdivision (b)(1), requires that any fact making a person ineligible for probation under subdivision (a)(1) of the statute be alleged in the accusatory pleading, the statute does not mandate reference to the code section, but merely to the relevant fact. It also held that the fact that the information made specific reference to section 12022.5 did not alter that result.
In the present case, the charging document did cite section 12022.53 in connection with the charged mayhem (and also section 12022.5). The fact that section 12022.53 was not referred to in open court at the time appellant admitted the firearm use alleged in connection with the charged mayhem is as inconsequential as the failure of the information in McKissick to cite section 1203.06; because the complaint provided appellant adequate notice of the application of section 12022.53, subdivision (g).
Furthermore, given the court’s explanation for sentencing appellant to the upper term, it is inconceivable it would have granted appellant probation on the ground that this is an “unusual case” in which “the interests of justice would best be served if the person is granted probation.” (§ 1203, subd. (e).) The court’s determination that this is not such an “unusual case” was clearly within the broad discretion of a sentencing court.
The admonitions given appellant at the time he entered his plea fully conformed with Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122, and his waiver of constitutional rights was voluntary and knowing.
The record provides a factual basis for the plea.
Despite the October 24, 2008 finding that appellant was incompetent, and his commitment to Napa State Hospital, the record establishes a basis for the trial court’s July 2, 2009 approval of the certificate of mental competency submitted by the director of that hospital, and the reinstatement of criminal proceedings on that date.
Nothing in the record suggests appellant was mentally incompetent at the time he entered his plea, and he was at all times represented by competent counsel who protected his rights and interests.
The sentence imposed is authorized by law.
Our independent review having revealed no arguable issues that require further briefing, the judgment of conviction and sentence are affirmed.
We concur: Haerle, J. Lambden, J.