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People v. Averhart

Court of Appeal of California
Sep 8, 2008
No. D051283 (Cal. Ct. App. Sep. 8, 2008)

Opinion

D051283

9-8-2008

THE PEOPLE, Plaintiff and Respondent, v. WES DAVID AVERHART, Defendant and Appellant.

Not to be Published


Wes David Averhart entered a negotiated guilty plea to voluntary manslaughter (Pen. Code, § 192, subd. (a)) and admitted he committed the offense in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1) and personally used a firearm within the meaning of section 12022.5, subdivision (a)(1). Under the plea bargain, which called for a stipulated sentence of 31 years in prison, the prosecution agreed to dismiss the balance of the information, which included four counts of assault with a firearm, each of which included gang and personal firearm use allegations, and one count of conspiracy.

Statutory references are to the Penal Code.

The abstract of judgment incorrectly refers to this count as involuntary manslaughter. We order the trial court to correct this mistake and file an amended abstract of judgment with the California Department of Corrections and Rehabilitation.

After denying Averharts motion to withdraw his guilty plea, the trial court sentenced him to 31 years in prison — the upper term of 11 years for voluntary manslaughter and two consecutive 10-year enhancements for the gang and personal firearm allegations. The court granted Averharts request for a certificate of probable cause.

Averhart appeals, contending the sentence violated the principles set forth in People v. French (2008) 43 Cal.4th 36 (French).

FACTS

Averhart was a member of the Gangster Disciples gang.

On the afternoon of August 17, 2003, members of the Gangster Disciples gang fought with members of the Deep Valley Crips gang at Brengle Terrace Park in Vista, leaving one person dead and four others — including a mother and her three-year-old son who were on a picnic in the park — wounded. The fight had been prearranged to "settle a score" and resolve rising tensions between the two gangs. The arrangement called for three females and three males from each gang to fight; no weapons were supposed to be brought to the park for the fight. Averhart had arranged the confrontation.

That morning Averhart and a few of his fellow gang members met in his apartment and armed themselves. Averhart had a . 357 chrome revolver, codefendant Karl Robinson had a silver revolver, and codefendant Curtis Stone had a shotgun.

Before leaving for Brengle Terrace Park, Averhart addressed 20 members or associates of the Gangster Disciples gang who were gathered outside his apartment. Averhart said that no one was supposed to "get jumped," but some gang members were armed and prepared to intervene if any Gangster Disciples gang members were jumped. The group left in five vehicles to go to the park.

When the Gangster Disciples gang members arrived at the park, they were outnumbered by Death Valley Crips gang members by a ratio of three to one.

The prearranged fight between the female members of each gang started first, but was broken up by a park ranger. The two gangs then moved to a different area, and Averhart and a representative of the Death Valley Crips gang started to select male members to fight.

Averharts brother, Trevell Averhart, was one of those selected to fight. At first, Trevell Averhart fought Carlos Brown, a Death Valley Crips member, but then Keric Mitchell started fighting Trevell Averhart. Mitchell was winning the fight. Wes Averhart began yelling, "Get off my brother," and then started shooting his revolver in a wild manner. Mitchell was struck in the chest and the lower left back; he died as a result of the gunshot wounds. A projectile from Mitchells chest wound was from Averharts revolver; tests on the projectile from Mitchells back wound were inclusive. Four other individuals, including a mother and her three-year-old son, both of whom had no connection with either gang, were wounded. Three of these four individuals suffered "through and through" wounds, and the projectiles were not recovered. The bullet recovered from one shooting victim was not fired from Wes Averharts revolver.

DISCUSSION

This appeal originally was filed without any argument for reversal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Averharts counsel referred to as a possible, but not arguable, issue: whether the trial court erred by denying Averharts motion to withdraw his guilty plea. We granted Averhart permission to file a brief on his own behalf, but he did not respond.
We reviewed the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738, including the possible issue referred to by appellate counsel and requested further briefing on the question of whether the recent Supreme Court decision in French, supra, 43 Cal.4th 36, affected the legality of Averharts sentence. In that briefing, Averharts counsel argues that French applies and the courts imposition of an upper term was illegal. The Attorney General disagrees.

Averhart contends the imposition of the upper term for the voluntary manslaughter count violated his Sixth Amendment right to a jury trial under the principles announced by our Supreme Court in French, supra, 43 Cal.4th 36. The contention is without merit.

French addressed the application of Cunningham v. California (2007) 549 U.S. 270 (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 to cases in which the defendant pleaded guilty or no contest, and the trial court sentenced the defendant to an aggravated term. In French, the defendant was charged with 12 counts of lewd and lascivious conduct with a child under the age of 14 years, based on three victims, with an enhancement for committing the offenses against more than one victim, and faced a maximum possible sentence of 180 years to life. (French, supra, 43 Cal.4th at p. 42.) The defendant pleaded no contest to six counts, under an agreement in which he would receive a sentence of no more than 18 years and dismissal of the remaining counts and the enhancement. (Ibid., emphasis added.) At the sentencing hearing, the court imposed the upper term for one count, with consecutive subordinate midterms on the other five counts, for a total of 18 years. (Id. at p. 43.) The sentencing court stated it selected the upper term because the "`[d]efendant took advantage of a position of trust and confidence to commit the crime." (Ibid.)

Our Supreme Court reversed and remanded for resentencing, holding, among other things, the defendant did not waive his Sixth Amendment right to a jury trial on aggravating circumstances nor admit facts that established an aggravating circumstance by pleading no contest under a plea agreement with a sentencing lid. (French, supra, 43 Cal.4th at p. 41.) Further, the high court held the defendant did not forfeit his Cunningham/Blakely claim by failing to raise it in the trial court because, under the circumstances of the case, an express waiver of a jury trial on aggravating circumstances was required and no such waiver occurred. (Ibid.)

Although not at issue here, we note that the Supreme Court also held that a defendant is not required to obtain a certificate of probable cause to raise this type of Cunningham/Blakely issue because (1) the claim implicates the defendants sentence only and is not a challenge to the plea agreement, and (2) where the appropriate standard of review is whether the constitutional error was harmless beyond a reasonable doubt. (French, supra, 43 Cal.4th at p. 41.)

This case is distinguishable from French in a significant manner. The plea bargain in this case called for a specific sentence that included the aggravated term—that is, Averhart stipulated or agreed to imposition of the upper term. In other words, the agreement did not call for a sentencing range as did the plea agreement in French. In French, the plea bargain called for a sentence of not more than 18 years—a sentencing lid of 18 years—which effectively allowed the defendant to argue that he should obtain less than the maximum term due to the absence of aggravating factors. (French, supra, 43 Cal.4th at p. 49.) "In the present case, defendant did not agree that a specified sentence would be imposed; his plea agreement contemplated that the trial court would have discretion to impose any appropriate sentence up to the maximum of 18 years imprisonment." (Ibid.)

"[W]e hold that defendant, by entering into a plea agreement that included the upper term as the maximum sentence, did not implicitly admit that his conduct could support that term. . . . A defendant who enters into an agreement to plead guilty or no contest, with a sentence to be imposed within a specified maximum, reasonably expects to have the opportunity to litigate any matters related the trial courts choice of sentence—including the existence of aggravating and mitigating circumstances—at the sentencing hearing." (Id. at pp. 48-49.)

Here, in contrast, Averhart entered into a plea agreement with a specific sentence, which included the aggravated term. The Supreme Court observed that such a plea agreement "constitutes an implicit waiver of [the defendants] right to contend that the sentence imposed" is unlawful. (French, supra, 43 Cal.4th at p. 49.)

French is inapposite. Averharts challenge to the imposition of the upper term sentence fails.

DISPOSITION

The trial court is ordered to amend the abstract of judgment to reflect that Averhart pleaded guilty to voluntary manslaughter and forward the amended abstract of judgment to the California Department of Corrections and Rehabilitation. (See fn. 2, ante.)

As so modified, the judgment is affirmed.

We concur:

BENKE, J.

McDONALD, J.


Summaries of

People v. Averhart

Court of Appeal of California
Sep 8, 2008
No. D051283 (Cal. Ct. App. Sep. 8, 2008)
Case details for

People v. Averhart

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. WES DAVID AVERHART, Defendant and…

Court:Court of Appeal of California

Date published: Sep 8, 2008

Citations

No. D051283 (Cal. Ct. App. Sep. 8, 2008)