Opinion
B188757
12-12-2006
THE PEOPLE, Plaintiff and Respondent, v. BILLY R. HEMPHILL, Defendant and Appellant.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Paul M. Roadarmel, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
After defendant and appellant Billy Hemphill withdrew his plea, a jury found him guilty of two counts of robbery. The trial court thereafter sentenced Hemphill to a term longer than the one to which he would have been subject had he not withdrawn his plea. On appeal, Hemphill contends that the court improperly punished him for exercising his right to a jury trial and that the court improperly stayed, instead of striking, his prior prison terms. We agree that the court improperly stayed his prior prison terms, and therefore the matter must be remanded for that reason. But we otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background .
On December 18, 2004, Travis Smith and Andrew Clisson were working in the late evening at EB Games. Hemphill and another man walked into the store. Smith noticed that Hemphill had a tattoo on the left side of his neck. While Smith was reaching for a game, Hemphill stuck an object into Smiths back and said, " `I have a gun, and Ill fucking kill you. " Smith did not actually see a gun. Hemphill pushed Smith into a storage room and made him lie down. Hemphill repeated, " `Ill kill you. " Meanwhile, Clisson and the other man had walked into the back room. The man pulled out a knife, put Clisson in the restroom, and took Clissons cell phone. About $3,000-$5,000 was taken from the store.
Smith and Clisson identified Hemphill at a lineup. Hemphills fingerprints were also found at the store.
II. Procedural background .
A. Hemphill pleads guilty, but thereafter withdraws his plea.
On September 21, 2005, the trial court held a pretrial hearing. At the outset, the court noted that Hemphill was facing "50-plus years to life in prison on a Three-Strikes matter . . . ." The court continued, "And the defendant asked the court for an indicated in regards to an open plea because on this matter the People have indicated repeatedly to this court that they are opposed to any type of plea bargain, and they in fact wont make any statement in regards to a determinate sentencing. So I asked the defense counsel to come back to the court with a proposal of some type indicating that its going to . . . have to be in excess of . . . 25. [¶] The defendant is a 39-year old man who has been to prison several times before, and for a lengthy period of time. [¶] The proposal has come to the court of an open plea of some 26 years in state prison. I have indicated to counsel that I am agreeable with that. . . ." The court then said it would put the matter over for sentencing to give the prosecutor a full opportunity to object.
Hemphill then pled no contest to two counts of robbery and he admitted a firearm allegation under Penal Code section 12022, subdivision (a). He also admitted that he had suffered prior felony convictions within the meaning of the Three Strikes law, that he suffered six prior convictions under section 667, subdivision (a), and that he had served three prior prison terms under section 667.5, subdivision (b). The trial court then set the matter over for sentencing.
All further undesignated statutory references are to the Penal Code.
Hemphill, however, moved to withdraw his plea. At the hearing on that motion, Hemphills defense counsel said that his client "felt rushed [and that he] did not have enough time to reflect[,] and now, upon further consideration and in speaking with his family . . . he realized he did the wrong thing and wishes to withdraw his plea." The prosecutor submitted, stating the People were happy with "whatever decision the court makes." The court noted that it had heard no legal basis to set aside the plea. It nonetheless said, "[T]hese are very weighty matters. Im sure you have been thinking about this since day one. . . . I dont think you should enter into this plea lightly. I dont think you ought to withdraw from this plea lightly. I hope you have had enough time to think about this now. [¶] The People are not objecting. I am inclined to set this aside, even though there is no legal grounds. They want to go to trial. They want you convicted and going for an indeterminate sentence, 50 years plus to life that you are facing. Even if they lost one or two counts, you are still facing 25 years to life. Thats indeterminate. That means it depends on the whim of the Governor who happens to be sitting at that time. In 20 years from now, you will be coming up, eligible for a possibility of parole. That doesnt mean you are going to get it. On a determinate sentencing you will get it. You can calculate the exact date. Its going to be a long time from now. But on that date, you will be set free. [¶] On an indeterminate sentencing, its anyones guess. Again, it depends who the Governor is. Governor Gray Davis was much tougher than Schwarzeneggar [sic] was. Wilson was tougher than someone else. It all depends on who is Governor in 20 years from now. Thats a big chance. I mean, no one knows. [¶] What do you want to do, sir?"
Hemphill replied that he wanted to go to trial. The court set the case for trial.
B. A jury convicts Hemphill of two counts of robbery, and he is sentenced.
Trial was by jury. The jury found Hemphill guilty of two counts of second degree robbery (§ 211), but found a firearm allegation under section 12022, subdivision (a), not true. At a subsequent court trial, the court found true allegations of prior convictions.
At the sentencing hearing on January 23, 2006, Hemphills defense counsel asked the court to strike at least three of his prior convictions and to offer the original disposition under the plea agreement of 26 years. She argued that no new facts came out during trial, and none of the victims were injured. Alternatively, she asked the court to run the sentences on the two counts concurrently.
The court said, "The question the court has before it is whether or not to use discretion under the Romero case. This is a case where, because of an early disposition, the court did undercut the District Attorney in this case and offered the defendant some 26 years in state prison. For the life of me I dont know why this defendant wanted to set that aside. But the court granted that motion and mainly because the People didnt have any opposition to it. There were no legal grounds to do it, but the defendant wanted it. The People wanted it. So the court set it aside. [¶] Its a different situation the courts facing today. What Im facing today is whether or not to use discretion on my own, and theres really no reason. In the 1980s the defendant was sentenced to state prison for some seven years. In the 1990s the defendant was sentenced to state prison for some 15 years. Now, here we are in 2006, and the defendants facing some—its actually 50 years plus — [¶] . . . [¶] — in state prison for these offenses. And again, theres nothing on here — theres no[t] even remorse from the defendant. Theres nothing to indicate any reason whatsoever to use any discretion in this case. There are gaps, and it has been a long time. But because of those very lengthy sentences he served, most of the gap is accounted for [ ] his serving in state prison. I also note there were parole violations on each one of them, and he served additional time on those sentences. So again, theres really no reason whatsoever for this court to use discretion under the Romero case."
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The trial court therefore sentenced Hemphill to two consecutive 25-years-to-life terms. The court also imposed two five-year terms under section 667, subdivision (a). The court stayed sentences on the section 667.5, subdivision (b), allegations.
DISCUSSION
I. The record does not show that Hemphill was punished for withdrawing his plea .
Hemphill contends that the trial court, in sentencing him to two 25-years-to-life sentences plus a term of 10 years, rather than 26 years as offered under the plea agreement, punished him for withdrawing his plea. The record does not support that contention.
It is a violation of due process to punish a person for exercising their constitutional rights. (In re Lewallen (1979) 23 Cal.3d 274, 278.) The right to a jury trial is a constitutional right. (People v. Collins (2001) 26 Cal.4th 297, 304.) Thus, an accuseds refusal to negotiate a plea "must not influence the sentence imposed by the court after trial." (In re Lewallen, supra, at p. 279.) Nonetheless, "a trial courts discretion in imposing sentence is in no way limited by the terms of any negotiated pleas or sentences offered the defendant by the prosecution. . . . Legitimate facts may come to the courts attention either through the personal observations of the judge during trial [citation], or through the presentence report by the probation department, to induce the court to impose a sentence in excess of any recommended by the prosecution." (Id. at p. 281, fn. omitted.)
In In re Lewallen, the defendant refused to accept a plea agreement. After being convicted of some charges and acquitted on others, the trial judge, at the sentencing hearing, "in response to defense counsels suggestion that placing defendant on informal probation would suffice, [] responded, `You mean whether or not theres a disposition or not after a jury trial? " (In re Lewallen, supra, 23 Cal.3d at p. 277.) Then, after sentencing, the trial judge stated, " `I think I want to emphasize theres no reason in having the District Attorney attempt to negotiate matters if after the defendant refuses a negotiation he gets the same sentence as if he had accepted the negotiation. It is just a waste of everybodys time, and whats he got to lose. And as far as Im concerned, if a defendant wants a jury trial and hes convicted, hes not going to be penalized with that, but on the other hand hes not going to have the consideration he would have had if there was a plea. " (Ibid.) The California Supreme Court held that these comments showed that the trial judge gave consideration to the defendants election to plead not guilty and that the defendant would be treated differently because he asserted his constitutional rights. (Id. at pp. 279-280.)
In contrast, the trial judges comment here—"For the life of me I dont know why this defendant wanted to set that aside"—does not show that he treated Hemphill differently because he withdrew his plea. Its simply a quizzical comment about a good deal that the defendant decided not to accept. Indeed, the trial judge made other comments showing that he based Hemphills sentence on legitimate factors. He properly noted that he was not bound by the plea offer, and that he was facing a "different situation" today in which he had to decide whether to exercise discretion. Based on Hemphills prior convictions, lengthy sentences, and lack of remorse, the court decided not to strike any strikes and to sentence defendant as it did.
Hemphill nonetheless argues that all of these factors were before the trial court when it offered Hemphill a determinate term of 26 years. Therefore, he reasons, nothing was different at the sentencing hearing and only a desire to punish Hemphill explains the harsher sentence. This reasoning ignores several points. First, the trial occurred. Although Hemphill dismisses the trial as revealing nothing new, he does so too lightly. It may be that the victims live testimony conveyed something to the court that the probation reports summary of their statements did not. Or perhaps there were other facts that came to light about the way in which defendant robbed the store that persuaded the court not to exercise its discretion to strike any strikes. Whatever it was, the trial certainly presented "legitimate facts" that could have properly influenced its sentencing decision.
The parties dispute whether the trial court had the probation report at the time it offered Hemphill the 26 years. The report states it was submitted on February 28, 2005, which was before the court made the plea offer. Also, the prosecutor referred to the report at the September 21 hearing where the offer was made and accepted. It therefore appears that the court did have the probation report at the September 21 hearing. In any event, for the purposes of this opinion, we will assume it did.
In any event, where, as here, the sentencing judge did not say anything reasonably giving rise to the inference that he was penalizing defendant for exercising his right to jury trial, the "mere fact, if it be a fact, that following trial defendant received a more severe sentence than he was offered during plea negotiations does not in itself support the inference that he was penalized for exercising his constitutional rights." (People v. Szeto (1981) 29 Cal.3d 20, 35.)
We therefore hold that Hemphill was not punished for exercising his constitutional right to a jury trial.
II. The prior prison terms must either be imposed or stricken .
The trial court stayed the one-year sentences on Hemphills three prior prison terms (§ 667.5, subd. (b)). But once "the prior prison term is found true within the meaning of section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken." (People v. Langston (2004) 33 Cal.4th 1237, 1241.) Therefore, the matter must be remanded so that the trial court can either impose or strike the prior prison terms.
DISPOSITION
The matter is remanded for resentencing as to the prior prison terms under section 667.5, subdivision (b). The judgment is otherwise affirmed.
We Concur:
KLEIN, P. J.
CROSKEY, J.