Opinion
C098379
04-29-2024
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ALLEN KENYON, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. Nos. 22F00915, 22F00895
Duarte, Acting P. J.
Appointed counsel for defendant Richard Allen Kenyon filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After independently examining the record, we find no arguable error that would result in a disposition more favorable to defendant and affirm.
BACKGROUND
Defendant and the victim (S.R.) had been in a decade-long romantic relationship. At the beginning of June 2022, defendant dropped S.R. off at a hospital with an ankle injury; she told the emergency room nurse that she was scared for her life, fearing that defendant, who was waiting outside, would kill her. S.R. said that while enroute to the hospital, defendant threw her cell phone out of the car, threw a full water bottle at her head, and then pulled out a firearm and pointed it at her head, threatening to kill her. Law enforcement officers who responded to the hospital were unable to contact defendant at the time.
Later that same month, Shasta County Sheriff's deputies were dispatched to a reported kidnapping. The same victim, S.R., reported that she had just escaped from her boyfriend (defendant) after he had assaulted and kidnapped her. Defendant had hit her multiple times in the face and head, threatened to beat her with a large stick, threatened to kill her if police arrived, and tried to prevent her from leaving until she was able to break free and enter a nearby store to ask for help. S.R. had injuries on her mouth and lips consistent with being hit. Defendant was arrested.
Based on the kidnapping incident, defendant was charged in Shasta County case No. 22F00895 (No. 895) with two counts of corporal injury to a spouse or cohabitant (Pen. Code, § 273.5, subd. (a); counts 1 &6), false imprisonment by violence (§ 236; count 2), kidnapping (§§ 207, subd. (a), 667.5, subd. (c), 1192.7, subd. (c); count 3), criminal threats (§ 422; count 4), and battery on a spouse, cohabitant or dating person (§ 243, subd. (e)(1); count 5). It was alleged that count 3 and count 4 qualified as serious felonies (§ 1192.7, subd. (c)) and that count 3 was also a violent felony (§ 667.5, subd. (c)). For counts 1 through 4 and count 6, the following aggravating circumstances were alleged: The offenses involved great violence (Cal. Rules of Court, rule 4.421(a)(1));that the victim was particularly vulnerable (rule 4.421(a)(3)); that defendant took advantage of a position of trust (rule 4.421(a)(11)); that defendant engaged in violent conduct that indicates a serious danger to society (rule 4.421(b)(1)); and that defendant had served a prior prison term or county jail term under Penal Code section 1170, subdivision (h) (rule 4.421(b)(3)).
Further undesignated statutory references are to the Penal Code.
Rule references are to the California Rules of Court.
Based on the hospital incident, defendant was charged in Shasta County case No. 22F00915 (No. 915) with two counts of being a felon in possession of a firearm (§ 29800, subd. (a); counts 1 &5), criminal threats (§ 422; count 2), assault with a firearm (§ 245, subd. (a)(2); count 3), battery on a spouse, cohabitant or dating person (§ 243, subd. (e)(1); count 4); unlawful possession of ammunition by a felon (§ 30305, subd. (a)(1); count 6), possession of tear gas by a felon (§ 22810, subd. (a); count 7), possession of a controlled substance while armed with a firearm (Health &Saf. Code, § 11370.1, subd. (a); count 8), and fleeing a pursuing peace officer's motor vehicle (Veh. Code, § 2800.1, subd. (a); count 9). Count 2 was alleged to be a serious felony. (§ 1192.7, subd. (c).)
In August 2022, defendant resolved both cases by plea for a stipulated term with a Cruz/Vargas waiver. Under the terms of the agreement, defendant pleaded no contest to count 3 (assault with a firearm) and an added count 10 (corporal injury on a spouse or cohabitant; § 273.5) in case No. 915, and he pleaded no contest to count 1 (corporal injury to a spouse or cohabitant) and count 4 (criminal threats) in case No. 895 with all remaining counts dismissed. If he complied with the terms of the Cruz/Vargas waiver, defendant would receive a stipulated four-year sentence and he would be permitted to withdraw his no contest pleas to the added count 10 in case No. 915 and count 4 in case No. 895; if he violated the Cruz/Vargas waiver he would not be permitted to withdraw his no contest pleas to those counts and could be sentenced to up to six years eight months in prison. Defendant acknowledged that he understood the terms of the plea deal, confirmed that he had had sufficient time to discuss the case, his rights, and the consequences of the plea with his counsel, and stated that he was not "under the influence . . . of anything at all that might impair [his] thinking." The parties stipulated to the police reports as the factual basis for defendant's pleas.
A "Cruz waiver" gives a trial court the power to "withdraw its approval of the defendant's plea and impose a sentence in excess of the bargained-for term" if the defendant willfully fails to appear for sentencing. (People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5.) The term "Vargas waiver" is derived from the case of People v. Vargas (1990) 223 Cal.App.3d 1107, where the defendant agreed in a plea bargain to be sentenced to a two-year term if he appeared for sentencing and a five-year term if he failed to appear for sentencing. The defendant failed to appear for sentencing and the court sentenced the defendant to a five-year term, which the appellate court deemed proper. (Id. at pp. 1113-1114.)
The trial court also dismissed a pending misdemeanor matter following defendant's no contest pleas.
After accepting defendant's pleas, the trial court released him on his own recognizance under the terms of the Cruz/Vargas waiver and ordered him to return two weeks later for sentencing. Defendant failed to appear at the scheduled sentencing hearing. A warrant was issued, and defendant was later arrested.
In October 2022, defendant made a Marsden motion to relieve his appointed counsel. The trial court granted the motion, relieved the public defender, and appointed conflict counsel, Mr. Izzi.
People v. Marsden (1970) 2 Cal.3d 118.
In January 2023, defense counsel Izzi filed a motion under section 1018 to allow defendant to withdraw his plea in case No. 915, which the trial court construed to apply to both cases. Defendant argued there was good cause for withdrawal because at the time of his plea he needed surgery for a hernia that he believed was life threatening. Defense counsel attached a copy of his investigator's memo detailing conversations the investigator had with the doctor who allegedly performed the hernia surgery on defendant, and the doctor's son, both of whom were family friends of defendant. The investigator noted, however, that while he was speaking on the phone with a person identifying himself as the doctor, the investigator received a text message from the person to whom he had spoken identifying himself as the doctor's son, stating that his father (the doctor) was on a plane and could not speak then, but would call the investigator later.
Under section 1018, at any time before judgment, a trial court may permit a defendant to withdraw a guilty plea for "good cause shown," which includes mistake, ignorance, or any other factor overcoming the exercise of free judgment such as inadvertence, fraud, or duress. (§ 1018; People v. Patterson (2017) 2 Cal.5th 885, 894; People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)
The People opposed the motion, arguing defendant never informed the trial court about his alleged hernias or the purported need for hernia surgery, that defendant was informed of and understood his rights and the consequences of his plea, and that he had specifically told the court that he was not under the influence of anything that might impair his thinking at the time he entered his plea. The prosecution also presented evidence that the doctor may have offered the victim money to get her to drop the charges against defendant.
On March 13, 2023, defendant made a Marsden motion to relieve defense counsel Izzi. After considering defendant's complaints and Mr. Izzi's responses in a closed hearing, the trial court denied the Marsden motion, finding no grounds existed to relieve counsel.
After denying the Marsden motion, the trial court considered defendant's motion to withdraw his plea. During the hearing defense counsel argued that defendant entered the plea with the Cruz/Vargas waiver under duress because he did not believe he could get the needed hernia surgery in jail. While he impliedly acknowledged that defendant had not informed the court about the medical issue during the change of plea hearing, counsel argued that a defendant may not always be honest when responding to the court's questions. The People asserted defendant could have received the hernia treatment while in jail and that the doctor's note was extremely suspect given the close family ties with defendant and his alleged attempt to pay the victim to drop the charges.
After considering the evidence and the parties' arguments, the trial court denied the motion to withdraw. The court found that defendant had not shown by clear and convincing evidence that he was under duress at the time he entered his plea.
The prosecutor informed the trial court that he would not seek a Cruz/Vargas waiver violation. He had no objection to the trial court imposing the stipulated four-year term and dismissing the two counts under the plea agreement as if defendant had not violated the Cruz/Vargas waiver.
On March 21, 2023, the trial court sentenced defendant according to the plea agreement. The court allowed defendant to withdraw his no contest pleas to count 4 (criminal threats) in case No. 895 and added count 10 (corporal injury) in case No. 915 and dismissed those counts. The court then imposed the midterm of three years for the corporal injury conviction (count 1) in case No. 895, and a consecutive term of one year (one-third the midterm) for the assault with a firearm conviction (count 3) in case No. 915. In each case, the court imposed a $300 restitution fine (§ 1202.4) and a $300 parole revocation restitution fine (§ 1202.45), which was stayed pending successful completion of parole, and reserved on direct victim restitution. The court awarded defendant 197 actual days of credit and 196 days of conduct credit for 393 days of total credit. Defendant timely appealed with a certificate of probable cause in both cases.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting that this court review the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
Having examined the record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
We concur Mesiwala, J., Wiseman, J. [*]
[*]Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.