Opinion
B225341
02-08-2012
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN CANNON et al., Defendants and Appellants.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant Jonathan Cannon. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant Chelminski Walker. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster, and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA350680)
APPEAL from judgments of the Superior Court of Los Angeles County, Stephen A. Marcus, Judge. Affirmed.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant Jonathan Cannon.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant Chelminski Walker.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster, and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
PROCEDURAL SUMMARY
Defendants Jonathan Cannon and Chelminski Walker were jointly charged with three counts of second degree robbery (Penal Code, § 211; all further code citations are to the Penal Code), and Cannon also was charged with a fourth count under that statute. The charges included allegations of weapon use and prior convictions for serious or violent felonies. Cannon's case was resolved in a plea bargain by which he pled guilty to two robbery counts, admitted personal firearm use in one of them, and admitted a strike prior conviction. Walker's case was tried to a jury, which returned guilty verdicts on two counts and a not guilty verdict on the third. The jury also found that the special allegations (of firearm use and prior convictions) were true. Each defendant filed a timely appeal.
DISCUSSION
Jonathan Cannon
Appointed appellate counsel for Cannon filed a brief based on People v. Wende (1979) 25 Cal.3d 436, stating that counsel had thoroughly reviewed the record in the case, implicitly finding no cognizable issue on appeal, and asking that this court conduct an independent review of the record to determine if there is any basis for reversal. We have done so, and find no such issue. Cannon was invited to file a letter with the court raising any issues he wishes the court to review. He has done so by a letter dated June 1, 2010, which we have reviewed.
In his letter, Cannon argues that he was "forced to plead guilty" to two counts of robbery. Other than to recount claimed errors by his appointed trial counsel, Cannon does not discuss how he was "forced" to enter the guilty pleas. He does argue that his attorney neglected to present a video tape of the "actual robbery suspects", and claims that this tape would have proven his innocence. He also claims that his trial counsel failed to send a private investigator to speak to victims and witnesses of the crimes, and that counsel also failed to file a motion to suppress evidence or a discovery motion "which would have helped the defendant's case." Cannon also claims that the prosecutor withheld evidence from his attorney for eight months, and that this evidence could have been presented at the preliminary hearing "and proven the defendant's innocence". He claims that the evidence withheld was only produced after the case was set for trial. The trial court denied Cannon's request for a certificate of probable cause (§ 1237.5).
The problem with these claims is that there is no showing of ineffective assistance of counsel or prejudice to the defendant. Thus, there is no showing of what victims and other witnesses would have told an investigator that might have aided defendant at trial. And assuming the prosecutor was tardy in disclosing evidence to defense counsel, there is nothing to show that this evidence was favorable to Cannon or that whatever was disclosed was not used, or at least considered for use, at trial.
Consequently, on this record, we find no basis for reversal or modification of the judgment of the trial court. Accordingly, we affirm that judgment.
Chelminski Walker
Walker raises a single issue on review: that it was improper to sentence him as a "three striker", i.e., a person who has suffered two previous serious or violent felonies, which led to a sentence of life imprisonment. He argues he should have been sentenced as a "two striker", pursuant to which he would have been sentenced to a definite term of years consisting of double the sentence for the present crimes. (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) He bases his argument on the claim that both of his prior serious felony convictions arose out of the same facts, so that only one could be used as a prior strike or, if it was possible to use both, one should have been stricken pursuant to section 1385.
We begin our discussion of Walker's claim with an examination of the prior felony convictions. They were suffered in 1998 and arose out of his convictions by plea to one count of residential burglary (§ 459) and one count of assault with intent to commit rape (§ 220). Both sides rely on police reports with respect to the underlying facts for these crimes. The reports are in the record on appeal. We take our understanding of the facts from those documents.
The crimes were committed at a residential apartment. The victim, and sole occupant of the apartment when the crimes occurred, was Rita Mercado. She recounted that she was just inside her apartment, and had been trimming a small tree with a pair of shears. The wooden front door was open, but a security screen was closed and locked. She opened the security door enough to discard some tree clippings on the ground next to the door stoop. At that point Walker suddenly stepped around the security door, entered the apartment, and pushed Ms. Mercado backwards, causing her to stumble. She tried to run to her bedroom where she planned to lock herself inside, but Walker caught her and held her in a face-to-face hug, then knocked her to the floor of the living room, some 10-12 feet inside the front door. Ms. Mercado struggled and was able to regain her footing. As she was struggling Walker kept saying, "please . . . please . . . go to the room." She tried to break away but Walker continued to hold on to her, and began to pull her towards the bedroom. He asked Ms. Mercado to get him some water, but she refused. Walker entered the bedroom, still dragging Ms. Mercado, who braced herself by putting her back against the door jamb and holding her right foot up. She injured the toe of her right foot by stubbing it against the door jamb. She then struck Walker with the handle of the shears she had been holding. This caused Walker to release her, and she ran out the front door and sought aid from a neighbor. Police were called and soon responded; Walker was identified and captured.
In custody, Walker was given his rights under Miranda (1966) 384 U.S. 436 and agreed to answer questions by the interrogating officer. His story was that he was a door-to-door magazine salesperson and was working the neighborhood when he came to Ms. Mercado's apartment. She was a Spanish speaker and did not speak English well; Walker spoke little Spanish. She indicated that he could enter her apartment. He tried to explain to Ms. Mercado why he was there (to sell magazines) and she indicated that she was not interested. She got a glass of water for him. Then Walker looked at his watch, saw that it was time to leave to join the sales crew, and left. He thought his haste in doing so might have alarmed Ms. Mercado, who rushed out the door.
Later in the questioning Walker changed his story. He admitted that he placed his hands on Ms. Mercado, but only grabbed her wrists and did not hit her. He then "started wrestling with her", but changed that story to say that he only wrestled her by the wrists. Asked why he wrestled her, Walker said he got mad and was frustrated because Ms. Mercado did not want to buy anything and that he had not made any sales lately. He said he then began pulling Ms. Mercado toward the laundry room, "because I saw a bed back there." He planned to "get with her." Asked what he meant by that, he said to "jump on her," which he explained, meant to "have sex". He was frustrated and added, "I guess I was feeling horny sir."
The record before us does not set out the first degree burglary pleading with which Walker was charged. We shall assume for purposes of this review that the predicate felony for the burglary was rape or assault with attempt to commit rape. Both residential burglary, rape, and assault with intent to commit rape are serious felonies under the "Three Strikes" law. (§§ 667 subd. (d)(1), 1192.7 subds. (c)(3), (10), (18) & 1170.1.)
Based on that assumption, it does appear that both the burglary and the assault were part of the same "act" for purposes of the statute prohibiting multiple punishment. (§ 654.) But Three Strikes sentencing is different, as we next discuss.
Walker bases his claim that only one of the prior serious felony convictions may be used in imposing Three Strikes punishment for the present crimes principally on language in People v. Burgos (2004) 117 Cal.App.4th 1209, 1216 (Burgos). The prior serious felony convictions in that case were attempted robbery and attempted carjacking, also arising out of the same "act". The court characterized the appellant's argument as being that "the trial court abused its discretion in refusing to strike one of his two prior strike convictions, because the two prior strike convictions arose from the same act," a contention with which the appellate court agreed. (Id., at p. 1211.) But the court's holding was that failure to strike one of the convictions "that arose from a single act constitutes an abuse of discretion" (Id., at p. 1214), explaining that "appellant's two prior convictions, attempted carjacking and attempted robbery, were, in the language of [People v.] Benson [(1998) 18 Cal.4th 24], 'so closely connected,' having arisen from the same single act, that failure to strike one of them must be deemed an abuse of discretion." (Id., at p. 1216.) While the point may be disputed, we believe the better reading of Burgos is that where two prior strike felonies arose out of the same act that is a circumstance that informs the trial court's exercise of discretion in deciding whether to strike one of them for purposes of sentencing under section 1385, not that it always is an abuse of discretion not to do so.
This is the result reached in People v. Scott (2009) 179 Cal.App.4th 920, 930, which concludes that the "same act" situation is a factor to be taken into consideration by the trial court in exercising its discretion under section 1385, but does not, by itself, command a decision one way or the other. This reading also is consonant with the Supreme Court's decisions in People v. Carmony (2004) 33 Cal.4th 367, 377 [Three Strikes sentencing scheme, unlike the single act limitation of section 654, lays down requirement for every case unless trial court exercises discretion under section 1385 to strike prior serious or violent felony conviction for purposes of sentencing], People v. Benson, supra, 18 Cal.4th at p. 35 [defendant received benefit of section 654 when originally sentenced and only faced prolonged incarceration when he chose to reoffend, by which time he was on notice that he would be treated as recidivist], and People v. Williams (1998) 17 Cal.4th 148, 161 [on motion to strike prior strike conviction for purposes of sentencing under Three Strikes law, trial court is to consider whether "in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies"].
We conclude the trial court was not required to strike one of the serious felony prior convictions for purposes of Three Strikes sentencing. We turn to whether its failure to do so in this case was an abuse of discretion.
The trial court was fully aware of its discretion, and provided a detailed explanation why it chose not to strike one of the serious felony prior convictions. It emphasized Walker's criminal history. He "virtually had no crime-free time"; he was sentenced for evading shortly after being released from prison, and had just been released from imprisonment for evading officers when, a few weeks later, he committed the present armed robberies. The court found "no crime-free time whatsoever. It's been one continuous criminal conduct" by defendant. And the present crimes are serious offenses, not relatively minor felonies. The transcripts show that Walker talks about crime as though it is just a common, ordinary thing that everyone does, and seems to take pride in being knowledgeable about crime. The court stated that Walker grew up with a "different background", was involved with a gang, and was very personable and nice, but that he is a danger to society. The court recognized that the sentence imposed (an indefinite life term) is "draconian" and it will be very difficult for Walker to be paroled, but applying the discretion to strike recognized in People v. Superior Court (Romero)(1996) 13 Cal.4th 497, "[i]t is simply not there. He has committed one crime after the other . . . ." His only explanation for his activity is that "he wanted to get . . . things for Christmas and things for his girlfriend and so forth. That's not a sufficient justification. It just isn't."
On this record, and with this explanation by the trial court, we cannot say the trial court abused its discretion in not striking a strike.
DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J. We concur:
WILLHITE, J.
MANELLA, J.