Opinion
A169258
04-24-2024
THE PEOPLE, Plaintiff and Respondent, v. CLAUDE EDWARD PLUMMER, Defendant and Appellant.
NOT TO BE PUBLISHED
(Lake County Super. Ct. No. CR957440)
Banke, Acting P. J.
Defendant Claude Edward Plummer pleaded no contest to one count of making a criminal threat (Pen. Code, § 422, subd. (a)) and one count of stalking (§ 646.9, subd. (b)). The trial court sentenced him to three years eight months, and issued a 10-year stay away order. Defendant's appointed appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, raising no issues and requesting this court review the record and determine whether any arguable issue exists on appeal. We affirm.
All further statutory references are to the Penal Code.
Background
After the Lake County District Attorney filed a 10-count information, defendant entered a no contest plea as to one count of felony making criminal threats to the victim A.G. (§ 422, subd. (a)-count 2) and felony stalking (§ 646.9, subd. (b)-count 4) in exchange for a sentencing lid of four years eight months. At the change of plea hearing, the court found there was a factual basis for the plea, that the plea was freely and voluntarily entered, and granted the People's motion to dismiss the remaining eight counts.
Section 422, subdivision (a) provides, "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."
Section 646.9 subdivision (b) provides, "Any person who violates subdivision (a) when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior described in subdivision (a) against the same party, shall be punished by imprisonment in the state prison for two, three, or four years." Subdivision (a), in turn, provides, "Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking...." (Id., subd. (a).)
The factual basis stated, "On or about September 9th, 2019, within the County of Lake, [defendant] arrived at the home of the named victim in the information with the initials of A.G....A.G. filmed [defendant] telling her-he was trying to see his child. And while doing so, he threatens A.G. saying, 'I'm going to kill you, bitch.' He breaks the window coming into the home. [¶] On 8/25 of 2019, [defendant] was served with a family law nocontact order to A.G. [¶] He violated that order after making credible threats....He left a message on her answering machine . . . the date would have been September 17th, 2019. There was a voicemail from [defendant]. The voice was identified by A.G. making credible threats to her saying, 'I'm going to shoot you. I'm popping your head. I'm slitting your throat.' [¶] On August 12, 2021, more calls were made by [defendant] placing her in fear of her safety."
At the sentencing hearing, the trial court noted it had received the presentence report and a supplemental report, and also admitted into evidence voicemail recordings from September 4 and 17, 2019, of defendant's "behavior towards the victim," as well as two certified rap sheets. The court also heard from the victim, defendant, and counsel.
Before pronouncing sentence, the trial court sought clarification on the two counts and whether they occurred "at the same time, the same day, as part of the same conduct." After hearing from counsel, the trial court determined the offenses did not occur at the same time, noting the criminal threat behavior charged in count 2 occurred on September 9. And, as the prosecutor asserted, the behavior in the two voicemail recordings from September 4 and 17, which happened after defendant was served with a family law no-contact order in August 2019, were "part of the stalking" count.
In the September 4 recording, defendant is heard saying," '[A.G.], letting you know your daughter has died.' "
In the September 17 recording, defendant is heard saying," 'I'm slitting your throat, I'm popping your head.'" Neither recording is a part of the record on appeal.
The trial court then sentenced defendant to three years eight months- consisting of a three-year midterm for count 4 and a consecutive eight-month term for count 2-with credit for 517 days. The court also issued a 10-year stay away order for the victim.
Discussion
Defendant, represented by counsel, freely and voluntarily, pleaded no contest to felony stalking and felony making criminal threats. Pursuant to the plea agreement, he accepted numerous terms and conditions, including a sentencing lid of four years eight months and a 10-year victim stay-away term.
A defendant who appeals following a no contest plea without a certificate of probable cause may only challenge the denial of a motion to suppress or issues regarding proceedings held subsequent to the plea that do not affect the plea's validity. (§ 1237.5; Cal. Rules of Court, rule 8.304(b); People v. Johnson (2009) 47 Cal.4th 668, 676-677.) Defendant requested but was denied a certificate of probable cause. Thus, our review is limited to matters occurring after entry of the plea. (Ibid.)
Appellant's court-appointed counsel notified defendant of his right to file a supplemental brief, and defendant has not done so. However, we note in his request for a certificate for probable cause, defendant states, "On October 23rd 2023 I pled to a 422[,] 646.9(b). They both happen on [the] same day Sept. 9th 2019. But the judge sentenced me to 3 yrs 8 months[,] 3 yrs for 646.9(b) and 8 months on 422(a). That was on the same day and 8 months should have been ran with 3 yrs. Thank you[,] if I get a ruling, I don't want to come back to this county. I am heading to CDC this week." In denying his request, the trial court noted "To the extent this certificate is required on the issue stated, count 2 and count 4 as pled to by defendant occurred on different dates. [¶] 8-24-19 + 9-6-19."
The trial court appears to have made a clerical error by listing September 6, 2019, and not September 9 as alleged in the information and as was discussed at the sentencing hearing for count 2. The counts were alleged as follows: Count 2 alleged "a violation of Section 422(a) of the California Penal Code, in that said defendant on or about the 9th day of September, 2019, . . . did willfully and unlawfully threaten to commit a crime which would result in death and great bodily injury to A.G., with the specific intent that the statement be taken as a threat." (Boldface omitted.) Count 4 alleged "a violation of Section 646.9(b) of the California Penal Code, in that said defendant on or about the 24th day of August, 2019 to the 17th day of September, 2019, . . . did maliciously and repeatedly follow and harass A.G., and made a credible threat with the intent that she be placed in reasonable fear for her safety and the safety of her immediate family." (Boldface omitted.)
To the extent defendant appears to be making a section 654 argument, the trial court addressed this issue at the sentencing hearing, taking care to make sure the two counts involved different conduct on different dates thereby making section 654 inapplicable. Additionally, the trial court pointed out, "The nature and the quality of [the] acts here are much different." Here, defendant's conduct involved "a number of acts over a sustained period of time, time in between giving pause for reflection and, you know, to get back to normal and not unusual behavior." The court concluded, "I cannot find . . . [that] these counts, these charges, the stalking and the criminal threat, was committed at the same time or in such a proximate time as to be considered the same offense. [¶] By their nature, they're different offenses....[¶] . . . [T]hey're independent criminal acts. They were separated by time. And it's hard to say that they even had the same purpose." (See People v. Andra (2007) 156 Cal.App.4th 638, 640 [" 'Under section 654, "a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]" [Citations.] This is particularly so where the offenses are temporarily separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one....' "].)
Having independently reviewed the record, we have found no arguable issues. (People v. Kelly (2006) 40 Cal.4th 106, 124.)
Disposition
The judgment is affirmed.
We concur: Langhorne Wilson, J. Castro, J. [*]
[*]Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.