Opinion
F051068
5-23-2007
THE PEOPLE, Plaintiff and Respondent, v. CONNIE LYNN EVANS, Defendant and Appellant.
William Davies, 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, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Harris, Acting P. J., Cornell, J., and Kane, J.
On June 7, 2005, appellant, Connie Lynn Evans, was charged in a criminal complaint with first degree murder (Pen. Code, § 187, subd. (a)) and personally and intentionally discharging a firearm resulting in death (Pen. Code, § 12022.53, subd. (d)). Appellant was arraigned on June 14, 2005. On August 30, 2005, criminal proceedings were suspended pursuant to section 1368. A psychologist examined appellant and found her incompetent to stand trial. On September 23, 2005, the court reviewed the report of the psychologist and found appellant not presently competent to stand trial.
All statutory references are to the Penal Code unless otherwise indicated.
When first evaluated, the psychologist found that appellant was psychotic and unable to participate in her own psychological evaluation.
Appellant was committed to Patton State Hospital. On March 29, 2006, the court received a report from two physicians and a staff psychologist at the hospital indicating that appellant was now competent to stand trial. On May 12, 2006, the court conducted a hearing and found appellant presently competent to stand trial.
An interdisciplinary treatment team at Patton State Hospital found that the medication given to appellant was beneficial and, if appellant continued taking her medications, she would remain competent to stand trial
On May 24, 2006, the prosecutor moved to amend the complaint to allege that appellant committed voluntary manslaughter within the meaning of section 192 and a section 12022.5 gun use enhancement. The parties entered into a plea agreement whereby appellant would admit the complaint as amended and received a stipulated prison term of 21 years.
The original allegations were dismissed.
The court advised appellant of the consequences of her plea, including the fact that she faced a maximum prison term of 21 years for these offenses and that the allegation she admitted was a serious felony within the meaning of the three strikes law. (§ 667.) Appellant was informed that her custody credits would be limited so that she would serve 85 percent of her prison term. Appellant told the court that she had enough time to consult with her attorney and was entering the plea freely and voluntarily. The court advised appellant of her constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. The parties stipulated there was a factual basis for appellants plea. Appellant admitted committing voluntary manslaughter and using a gun within the meaning of the gun use enhancement.
Just after 6:00 p.m. on May 29, 2005, emergency personnel from the California City Fire Department responded to a report of shots fired at a residence. Department personnel found Shawanda Lewis lying near the front door, bleeding from her head. Lewis, who had been shot, was dead. Appellant was seen leaving the residence and driving away. Later the same day, officers received a telephone call from appellant, who confessed to the offense.
On June 22, 2006, the court denied probation and sentenced appellant to prison for the upper term of 11 years for voluntary manslaughter and a consecutive upper term of 10 years for the gun use enhancement, for a total prison term of 21 years. The court imposed a restitution fine and awarded appellant her applicable custody credits. Appellant obtained a certificate of probable cause and filed a timely notice of appeal.
Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel, indicating that appellant was advised that she could file her own brief with this court. On December 19, 2006, we invited appellant to submit a letter stating any grounds on appeal she wished this court to consider. To date she has not done so.
The most important legal question initially confronting the trial court was whether appellant was competent to stand trial. A person cannot be tried or adjudged to punishment while mentally incompetent. (§ 1367, subd. (a).) A defendant is mentally incompetent if, as a result of a mental disorder or developmental disability, he or she is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (Ibid.; People v. Marks (2003) 31 Cal.4th 197, 215; People v. Dunkle (2005) 36 Cal.4th 861, 885 (Dunkle); People v. Lawley (2002) 27 Cal.4th 102, 131 (Lawley).) "[T]he defendant must have `"a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and ... a rational as well as a factual understanding of the proceedings against him." [Citations.] The focus of the inquiry is the defendants mental capacity to understand the nature and purpose of the proceedings against him or her. [Citations.] The defendants `"technical legal knowledge" is irrelevant. [Citations.]" (People v. Blair (2005) 36 Cal.4th 686, 711.)
A defendants trial while incompetent violates state law and federal due process guarantees. (Pate v. Robinson (1966) 383 U.S. 375, 385; People v. Pennington (1967) 66 Cal.2d 508, 516-517; Dunkle, supra, 36 Cal.4th at p. 885.) "When a competency hearing has already been held and the defendant has been found competent to stand trial ..., a trial court need not suspend proceedings to conduct a second competency hearing unless it `is presented with a substantial change of circumstances or with new evidence casting a serious doubt on the validity of that finding. [Citations.]" (People v. Jones (1991) 53 Cal.3d 1115, 1153; People v. Kelly (1992) 1 Cal.4th 495, 542; Lawley, supra, 27 Cal.4th at p. 136.)
The trial court conducted a hearing on August 30, 2005, finding appellant incompetent to stand trial. Appellant was sent to Patton State Hospital until two physicians and a psychologist from that institution found her competent to stand trial in late March 2006. On May 12, 2006, the court conducted a new hearing at which it found appellant competent to stand trial. The parties submitted the matter on the doctors report from Patton State Hospital. There was no evidence suggesting appellant was incompetent. Appellant presented no contrary evidence concerning her competency. We find no error in the trial courts findings concerning appellants competency at any stage of the proceedings.
Plea bargaining is a judicially and legislatively recognized procedure that provides reciprocal benefits to the People and the defendant. (People v. Masloski (2001) 25 Cal.4th 1212, 1216; People v. Orin (1975) 13 Cal.3d 937, 942; § 1192.5.) When a defendant agrees to the maximum sentence that may be imposed pursuant to a plea agreement, the defendant necessarily admits his or her conduct is sufficient to expose him or her to that punishment and reserves only the exercise of the trial courts sentencing discretion in determining whether to impose that sentence. (See Advisory Com. com., Cal. Rules of Court, rule 4.412(b) ["a defendant who, with the advice of counsel, expresses agreement to a specified prison term normally is acknowledging that the term is appropriate for his or her total course of conduct"].)
Appellant faced a sentence for first degree murder of 25 years to life plus a consecutive term of 25 years to life for the original gun use enhancement charged pursuant to section 12022.53, subdivision (d).
A judge may not increase a defendants sentence beyond the statutory maximum based upon facts not found by a jury or admitted by a defendant. (Blakely v. Washington (2004) 542 U.S. 296, 302 (Blakely).) The statutory maximum "is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Ibid.) That is the case here. In open court, appellant agreed she would be sentenced to a stipulated term of 21 years in state prison as a result of her plea, and in fact, she ultimately received that sentence. Appellants plea in effect admitted the existence of facts necessary to impose that upper term on the offenses charged.
When a defendant enters a plea of guilty or no contest, he or she is admitting the sufficiency of the evidence for the offense. Issues going to guilt or innocence are removed from consideration upon entry of the plea. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) Our Supreme Court observed long ago that when a defendant waives the right to a jury trial, he or she is deemed to have consented to a trial of all the issues in the case before the court sitting without a jury. (People v. Berutko (1969) 71 Cal.2d 84, 94.) It logically follows that a defendant waiving a right to a jury trial as a precursor to a no contest plea and in exchange for a specified upper term sentence has waived the right to a jury trial on all issues. A sentence within the maximum allowed by the facts appellant admitted does not violate Blakely. (U.S. v. Lucca (8th Cir. 2004) 377 F.3d 927, 934; U.S. v. Saldivar-Trujillo (6th Cir. 2004) 380 F.3d 274, 279.)
We therefore find that the United States Supreme Courts recent decision in Cunningham v. California (2007) 549 U.S. __ is inapplicable to appellants sentence. In light of appellants waiver of a right to a jury trial and her consent to the precise sentence imposed, the constitutionality of her upper term sentence under Cunningham and Blakely is not an issue in the case. Generally, where a defendant has pled guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that sentence as long as the court did not lack fundamental jurisdiction. (See People v. Hester (2000) 22 Cal.4th 290, 295.)
We further note that although appellant secured a certificate of probable cause, there is nothing in the current record to suggest that she had any ground to withdraw her plea or to challenge the validity of her plea.
The trial court carefully advised appellant of the consequences of her plea and her constitutional rights. The parties stipulated to a factual basis for appellants plea, as well as to her sentence. Appellant received the stipulated sentence. We find no error in the trial courts advisement of rights, in appellants waiver of rights and her admission of the amended allegations, or in the trial courts imposition of sentence.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual arguments.
DISPOSITION
The judgment is affirmed.