Opinion
E039203
9-8-2008
THE PEOPLE, Plaintiff and Respondent, v. JEREMY SAMUELS, Defendant and Appellant.
Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr. and Robert M. Foster, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
A jury convicted defendant of escaping while felony charges were pending. (Pen. Code, § 4532, subd. (b)(1).) In bifurcated proceedings, the trial court found true allegations that defendant had suffered five strike convictions (§ 667, subds. (b)-(i)) and a prison prior. (§ 667.5, subd. (b).) He was sentenced to prison for 26 years to life and appeals, claiming his trial attorney was incompetent for failing to bring a Romero motion and this court should examine materials determined by the trial court to not be discoverable by either party. We reject his contentions and affirm the judgment.
All further references are to the Penal Code unless otherwise indicated.
People v. Romero (1996) 13 Cal.4th 497.
Defendant also petitioned for a writ of habeas corpus in case No. E041586. On October 30, 2006, we filed an order indicating we would consider the petition with the appeal, which we have done; however, we will dispose of the writ petition by separate order.
FACTS
On August 27, 2001, while he was awaiting sentencing in another case, defendant escaped from the West Valley Detention Center.
ISSUES AND DISCUSSION
1. Appeal
a. Post-Trial Incompetency of Trial Counsel
In his appeal, defendant contends that his trial attorney was incompetent for failing to bring a Romero motion as the latter apparently once stated he would. He asserts that there was a basis for the trial court to strike one or more of his five strikes because the current offense was neither violent nor serious and he cooperated with authorities in their investigation of the crime. The asserted cooperation occurred four days after the crime, when defendant, being questioned by a sergeant who was conducting an administrative investigation of the offense, told the sergeant that he had, in fact, escaped and how he did it. In exchange for this information, the sergeant either told defendant that his statements would not be used against him in this criminal trial or that he would not be prosecuted for this offense.
On the other side of the "Romero coin," the probation report states that this crime occurred while defendant was awaiting sentencing on another case, which sentence was eventually set at 18 years in prison. When sentenced in the current case, defendant was awaiting trial for aggravated assault, possession of a weapon by an inmate and battery with serious bodily injury, all also committed at West Valley Detention Center. Defendant was on parole when he committed this offense. His probation officer concluded that defendants prior record of criminal conduct showed a pattern of being regular or of increasing seriousness, that he had engaged in violent conduct, which indicated a serious danger to society and that his prior convictions were numerous or of increasing seriousness. The officer also concluded that defendants prior performance on parole was unsatisfactory, that he "represent[ed] a danger and great threat to society[,]" that he lacked remorse for his actions and acted impulsively. Defendant here has nothing to say about these conclusions and, certainly, they are supported by the record before us.
Given the foregoing, defendant cannot possibly carry his burden of showing that had his attorney made a Romero motion, there was a reasonable probability that it would have succeeded to the point that he would have received a sentence other than 25 years to life. (See Strickland v. Washington (1984) 466 U.S. 668, 688, 693-694.)
Moreover, defendant misconstrues the remarks of the trial court about the potential effect of his cooperation with law enforcement on his sentence. In determining whether the sergeant who interviewed defendant had promised not to use defendants statements against him in this trial, or, as defendant asserted, promised that defendant would be granted immunity from prosecution for this offense in exchange for his statements, the trial court said, " . . . [W]eve all had clients . . . that have, . . . for whatever reasons . . . confessed to crimes after being told that it was going to be used against them in a criminal case. I dont know what motivates people. [¶] It would just be speculative . . . to say that . . . maybe [defendant] felt that by cooperating[,] somehow down the line, because hes facing this 18-year sentence [in the other case], that that would earn him some brownie points or whatever with the confining officials wherever hes confined in the future." Rather than this being a statement by the trial court that defendants cooperation with authorities "might be considered the basis for later lenient treatment" in terms of having the court grant a Romero motion and dismiss enough of defendants strikes to take him out of the three strikes sentencing scheme, as defendant suggests, it was actually speculation by the trial court that defendant cooperated in the hopes of receiving better treatment from his jailers.
b. In Camera Hearing
Before trial began, the court below held a number of in camera hearings during which it examined documents submitted to it by the county counsel which comprised the administrative investigation into defendants escape from West Valley Detention Center. The court variously determined that some of these documents were discoverable by both parties, some were not, and others were already in the hands of the parties. The parties here have asked us to examine these documents and determine whether the court below ruled correctly. This court has attempted for almost two years to obtain these documents, but has been unsuccessful. Having read the transcript of the trial, however, and being aware of the overwhelming evidence that defendant committed this offense and that he confessed to an officer investigating it, we cannot imagine anything that might be in the administrative investigation records which was not turned over to the parties that could possibly exonerate defendant. However, the option remains open for him to pursue the matter by writ in the trial court.
Appellate counsel for defendant concedes as much in his declaration attached to defendants petition for a writ of habeas corpus.
In this regard, we quote from defendants pretrial counsel, in her declaration in support of his petition for writ of habeas corpus before this court, "Based on my factual and legal research, I concluded that the chances of the defendants acquittal [for escape] were remote. [Defendant] was arrested outside the jails outer fence while crawling toward a nearby drainage ditch. Several witnesses saw him there, including peace officers and non-sworn jail employees. He had no permission to be outside the jail and no legal justification such as necessity or duress." Defendants appellate counsel agrees, saying, "[Defendants trial attorney] stipulated to two of the elements of escape, that [defendant] was in custody for a felony, and that he had no permission to leave. . . . [A]ll the prosecutor had to prove was that [defendant] had left or attempted to leave the facility, i.e., that he was outside the fence. [¶] Several witnesses, unsworn jail employees and guards, saw him outside the fence, and he was arrested there. He had injuries consistent with the prosecutors theory of the means of his escape, and there was circumstantial physical evidence as well."
2. Petition for Writ of Habeas Corpus
Defendants pretrial counsel states that she negotiated a plea bargain for him with a supervisor in the prosecutors office who agreed to a nine-year sentence for the escape. The People do not dispute this, adding that this occurred on May 9, 2003 and the offer "was open until the onset of trial." Pretrial counsel says that the plea deal was mentioned in the presence of the judge who presided at the preliminary hearing, who, while not expressly approving the bargain, stated no objection to it. She states her belief that defendant rejected the bargain due to the influence of the attorney who was then representing him on the case for which he received an 18-year sentence and who was later retained by defendant for this case, in September 2003.
According to a copy of the purported change of plea form (which is missing the third page, that provides spaces for the signature of the defendant and the attorneys stating their approval of the bargain), defendant would plead guilty to escape by force or violence (with which he had not been charged), admit a prison prior and one of the alleged strikes.
This judge did not participate in any subsequent proceedings in this case until more than a year after the plea bargain was made and ended his involvement in the case more than a year before it went to trial. During the period following the offer and before trial began, six different judges presided at proceedings involving this case.
Defendant, in his declaration in support of his petition, confirms his pretrial attorneys belief and states that his trial attorney assured him he could "win" this case, therefore, he decided to reject the plea deal and go to trial. Specifically, defendant said that his trial attorney had told him that the prosecutor had "no case[,]" counsel could get it dismissed by a motion to dismiss and that delaying acceptance of the offer would result in a better offer. Trial counsel for defendant subsequently brought a motion to dismiss on the grounds that defendant had been promised immunity from prosecution in exchange for his confession to the crime, but the motion was denied.
In his petition, defendant presented the declaration of an experienced criminal defense attorney who stated that the trial judge, who came into the case in November 2004, would have been unlikely to have rejected the plea bargain. Another experienced criminal defense attorney stated that it would be highly unusual for a trial judge to refuse to approve a bargain approved by a supervising deputy district attorney.
In their response to defendants petition, the People assert that defendant would not have taken the deal and nothing shows the trial court would have approved it. They also assert that the fact that four months elapsed between the time the deal was offered to defendant and the time he retained his trial attorney demonstrates that the latter could not have influenced him about the former. Finally, they say because defendants trial counsel did not represent him during this four month period, he cannot be held accountable for anything defendant did during it. However, as defendant points out, the record in this case shows that his trial attorney consulted with him on May 21, 2003, and he was ordered to and did appear at hearings on May 28, July 10 and July 30, 2003 before appearing for the first time as retained counsel on September 5.
Defendants trial counsel failed/refused to participate in the preparation of any of the documents concerning defendants writ petition.
It appears to this court that defendant (here, the petitioner) has established a prima facie case for relief. As the matter involves issues of fact and further inquiry into the decisions and actions of trial counsel, it is appropriate that it be heard by the Superior Court.
DISPOSITION
The judgment is affirmed.
We concur:
HOLLENHORST, J.
GAUT, J.