From Casetext: Smarter Legal Research

People v. Stinnett

California Court of Appeals, Fifth District
Mar 5, 2008
No. F052845 (Cal. Ct. App. Mar. 5, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. DANIEL DALE STINNETT, Defendant and Appellant. F052845 California Court of Appeal, Fifth District March 5, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Kings County No. 06CM1865. Peter M. Schultz, Judge.

Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

OPINION

THE COURT

Before Vartabedian, Acting P.J., Harris, J., and Cornell, J.

INTRODUCTION

Appellant, Daniel Dale Stinnett, was charged in an information filed June 28, 2006, with attempted murder (Pen. Code, §§ 664 & 187, subd. (a), count one), robbery in an inhabited dwelling acting in concert (§§ 211 & 213, subd. (a)(1)(A), count two), burglary (§ 459, count three), and active participation in a street gang (§ 186.22, subd. (a), count four). The information alleged as to counts one, two, and three that appellant personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)), was personally armed with a firearm (§ 12022, subd. (a)(1)), personally used a firearm in the commission of his offenses (§ 12022.5, subd. (a)(1)) and committed his offenses in furtherance of a criminal street gang (§ 186.22, subd. (b)(4)).

Unless otherwise specified, all further statutory references are to the Penal Code.

On June 14, 2006, appellant waived his right to a preliminary hearing.

On February 27, 2007, appellant entered into a plea agreement. Appellant agreed to plead guilty to counts three and four and to admit the section 12022.5, subdivision (a)(1) and section 12022.7, subdivision (a) allegations. Under the agreement, appellant’s sentence would be either 11 years 8 months in prison or 13 years in prison. The sentence would be contingent on facts from the probation officer’s report or a statement in mitigation. Under the agreement, appellant was giving up his “right to a jury trial on the issue of aggravating circumstances justifying the upper term.” Appellant expressly waived his right to a jury trial on the trial court’s application of aggravating circumstances in applying the upper term to his burglary conviction.

The court reviewed the consequences of the plea with appellant and his codefendants, including the fact that no defendant would receive probation. The court advised appellant of, and appellant waived, his constitutional rights pursuant to Boykin/Tahl. Appellant pled guilty to counts three and four and admitted the sections 12022.5 and 12022.7 enhancements.

Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl).

On March 27, 2007, the trial court sentence appellant to the upper term of six years on count three, a concurrent term of two years on count four, a consecutive term of three years for the great bodily injury enhancement, and a consecutive term of four years for the gun use enhancement. Appellant’s total prison term is 13 years. Appellant was awarded applicable custody credits, ordered to pay a restitution fine and victim restitution of $6,474.71.

Appellant’s 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 he could file his own brief with this court. By letter on September 10, 2007, we invited appellant to submit additional briefing. To date, he has not done so.

Appellant’s counsel represents in the opening brief that appellant has requested this court to examine an issue.

FACTS

At 2:30 a.m. on February 14, 2006, Hanford Police Officer Pontecorvo was dispatched to investigate a shooting in Hanford. Pontecorvo met the victim, Trenton Wells, at Hanford Community Medical Center. Wells told Pontecorvo he was awakened when his bedroom door was kicked in. Wells believed three or four people began hitting him. One attacker struck Wells in the head with a gun. Wells began to fight back because he believed the assailants were trying to kill him.

Wells was able to exit his room into the living room, where the fight continued. The assailants were trying to tie Wells with tape. Wells attempted to exit the front door, but more than one assailant continued to fight with Wells. Wells was able to unlock the front door, but could not open it. Wells was then shot. The fight continued into a roommate’s bedroom. Wells opened a sliding door and went into the backyard. The assailants did not follow him. After 10 minutes, Wells went back into his residence and called his parents to take him to the hospital. Another officer told Pontecorvo Wells had been shot three times, twice in the right arm and once in the left shoulder.

Wells described the gun as eight to nine inches long and looked like .45 caliber. As the assailants were attacking Wells, they demanded to know where he kept his money. Wells told them he had no money. Wells heard two more gunshots and thought one of the assailants had been shot. Wells heard a suspect say he thought the safety to the gun was on. Another suspect said, “Let’s kill the mother fucker.” Wells remembered the assailants wore white shoes.

Officer Jimenez was dispatched to Central Valley General Hospital to investigate a report of a gunshot victim. Other investigators had questioned codefendant Isaac Garcia. They told Jimenez appellant was shot by gang members. Appellant, who was still at the hospital, confirmed Garcia’s story but could not remember details because he claimed he was drunk and has blackouts when he drinks.

While Jimenez was at the hospital, he received a call from Pontecorvo asking him the color of the shoes of a codefendant. Jimenez told him the shoes were white. Investigators obtained search warrants on appellant’s residence. As they were being served, appellant tried to escape by exiting out a window. Appellant was arrested.

Wells wanted restitution for his medical expenses. Wells explained he was fighting for his life when the defendants broke into his home. Wells knew he lost a lot of blood and would die if he did not get out of his home. Had the gunshot to his shoulder been one more inch to the left of his neck, Wells would have been paralyzed. Wells was in physical therapy for nearly a year and his hand is weak from nerve damage.

DISCUSSION

We initially note that appellant failed to obtain a certificate of probable cause from the trial court’s initial pronouncement of judgment. We therefore cannot review any potential infirmities concerning the validity of the underlying no contest plea. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.)

A guilty plea is, for most purposes, the legal equivalent of a jury’s guilty verdict. (People v. Valladoli (1996) 13 Cal.4th 590, 601.) A guilty plea serves as a stipulation that the People need not introduce proof to support the accusation. The plea ipso facto supplies both evidence and verdict and is deemed to constitute an admission of every element of the charged offense. (People v. Alfaro (1986) 42 Cal.3d 627, 636 [overruled on another ground in People v. Guerrero (1988) 44 Cal.3d 343]; People v. Chadd (1981) 28 Cal.3d 739, 748.)

Appellant’s counsel attached a sentence at page four of the opening brief stating that “[a]ppellant personally requests” that this court address the issue of whether Cunningham v. California (2007), 549 U.S. __, [127 S.Ct. 856] “requires reduction of the upper term or any enhancement applied to his sentence.” Prior to changing his plea, the trial court expressly advised appellant that he was waiving the right to a jury trial on any fact which might be used to impose an upper term sentence. Appellant expressly waived his right to a jury trial in open court after receiving the trial court’s advisement.

As with other constitutional rights such as his Boykin/Tahl rights, appellant could waive a constitutional right to a jury trial on the truth of any fact applied by the trial court to impose the upper term on count three. (See People v. Collins (2001) 26 Cal.4th 297, 307-308 [certain constitutional rights must be personally waived by the defendant]; People v. Anderson (1991) 1 Cal.App.4th 318, 323-325 [waiver of fundamental right should be express and appear on record].) Because the trial court explained to appellant his constitutional right to a jury finding on the truth of facts which could be used to impose an upper term and obtained a personal waiver of that right from appellant, the court did not commit Cunningham error in sentencing appellant to the upper term on count three.

We further note that the probation officer found only one mitigating factor, that appellant admitted wrongdoing at a relatively early stage. The probation officer noted several aggravating factors: the crime involved great violence; the victim suffered great bodily harm; there were acts indicating a high degree of cruelty, viciousness, or callousness; the victim was particularly vulnerable; the appellant was convicted of other crimes for which consecutive sentences were being imposed but for which appellant was serving a concurrent sentence; the perpetration of the crime showed planning, sophistication, or professionalism; the appellant engaged in dangerous conduct indicating a serious danger to society; appellant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness; appellant was on probation when he committed the instant offenses; and appellant’s prior performance on probation or parole was unsatisfactory. The probation officer recommended appellant be sentenced to a prison term of 13 years. Appellant did not object to a single one of these aggravating factors at sentencing or to the probation officer’s recommendation that he receive a prison term of 13 years.

Appellant had a misdemeanor battery and a possession of marijuana for sale adjudications in 1998 as a juvenile. As an adult, appellant had convictions in 2001 for resisting arrest and carrying a concealed weapon in a vehicle, a misdemeanor; misdemeanor convictions in 2003 for fighting in public and making terrorist threats; a drunk driving conviction in 2005; felony convictions in 2006 for burglary, participation in a criminal street gang, personally using a firearm, and causing great bodily injury. Appellant’s criminal history is an aggravating factor for which a factual finding by a jury is not necessary. (See People v. Black (2007) 41 Cal.4th 799, 818-820.)

Appellant’s sentence for the section 12022.5, subdivision (a) enhancement was four years, the midterm for that enhancement. The sentence for the great bodily injury enhancement in section 12022.7, subdivision (b) is a straight term of three years. The trial court did not commit Cunningham error in the imposition of enhancements to appellant’s sentence.

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Stinnett

California Court of Appeals, Fifth District
Mar 5, 2008
No. F052845 (Cal. Ct. App. Mar. 5, 2008)
Case details for

People v. Stinnett

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DANIEL DALE STINNETT, Defendant…

Court:California Court of Appeals, Fifth District

Date published: Mar 5, 2008

Citations

No. F052845 (Cal. Ct. App. Mar. 5, 2008)