Opinion
D070406
05-22-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL HONG SYLVESTER, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD253406) APPEAL from an order of the Superior Court of San Diego County, Melinda Lasater, Judge. Affirmed. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Michael Hong Sylvester was charged with eight counts in a third amended consolidated information and a jury convicted him of the following: two counts of inflicting injury to a member of a dating relationship (counts 3 & 7) (Pen. Code, § 273.5, subd. (a)); two counts of assault by means of force likely to produce great bodily injury (counts 4 & 8) (§ 245, subd. (a)(4)); and one count of making a criminal threat (count 6) (§ 422). As to counts 7 and 8, the jury found Sylvester committed the offenses while he was released from custody on bail pending final judgment on an earlier felony offense (§ 12022.1, subd. (b)), and he personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). The jury was unable to reach a verdict on the remaining three counts (counts 1, 2 & 5). The court declared a mistrial on those counts and granted the prosecution's motion to dismiss them and to strike deadly weapon allegations under count 6. The court found Sylvester had a prior serious felony conviction (§ 667, subd. (a)(1) and a prior strike conviction (§ 667, subds. (b)-(i)). After denying Sylvester's motion for a new trial and motion to dismiss his prior strike conviction allegation, the court sentenced Sylvester to 19 years in prison.
All further statutory references are to the Penal Code unless otherwise specified.
This is Sylvester's second appeal in this case. On January 19, 2016, this court filed an unpublished opinion (People v. Sylvester (Jan. 19, 2016, D067157)) that remanded the case to the trial court to reconsider its decision to allow the prosecution to file a third amended information alleging a prior conviction in Florida after the jury had begun deliberations. After reconsidering the matter, the trial court again allowed the prosecution to file the third amended information. Sylvester contends the court abused its discretion in allowing the prosecution to file the third amended information. We affirm.
BACKGROUND
The facts underlying Sylvester's convictions are set forth in this court's prior opinion and it is unnecessary to repeat them here. We summarize the relevant procedural facts from the prior opinion.
At the preliminary hearing in May 2014, the prosecutor told the court that he had information regarding Sylvester's criminal history from Florida and that Sylvester "has been involved in such crimes as robbery, battery, and the list goes on."
On July 7, 2014, the parties appeared before Judge Lewis after Sylvester had signed a change of plea form to plead guilty to two counts with a stipulated prison term of eight years. The prosecutor told the court there was potentially an issue he needed to discuss with defense counsel regarding a prior conviction Sylvester had suffered when he was a juvenile in Florida, but "[o]ther than that, he is willing to plead guilty to what the offer was without the consideration of that prior." However, after a break in the proceedings, defense counsel informed Judge Lewis that Sylvester had changed his mind about pleading guilty and wanted to hire private counsel.
Judge Lewis held a Marsden hearing and denied Sylvester's request to change counsel. The prosecutor then informed the court that the plea offer Sylvester rejected was withdrawn and the prosecution would continue to investigate the possibility of alleging Sylvester's prior Florida conviction.
People v. Marsden (1970) 2 Cal.3d 118.
The next day (July 8, 2014) the prosecutor filed a trial brief in which he stated the prosecution had put Sylvester and his counsel "on notice that the People will move to amend the current charging document if and when the People receive documentary confirmation of [Sylvester's] adult conviction in the state of Florida." The trial brief stated that the conviction likely qualified as a prior serious felony conviction and a prior strike conviction under California law, and that the prosecution would make that determination when they received the relevant court-certified documentation from Florida.
Trial commenced before Judge Lasater on July 8, 2014. On July 14, the prosecution filed the third amended consolidated information, which added the prior serious felony and prior strike conviction allegations arising from Sylvester's March 2009 conviction in Florida. After the jury began deliberations, counsel and the court addressed Sylvester's objection to the third amended information.
Sylvester's counsel argued that Sylvester was not on notice during plea negotiations of the possibility that the prior Florida conviction would be used against him as a strike conviction in California and result in "an entirely different maximum outcome or a significantly higher outcome." The prosecutor responded that he had apprised defense counsel of his attempts to obtain necessary information about Sylvester's prior conviction from Florida during plea negotiations and that on July 3, 2014, the prosecution and defense had reached a "final agreement" that if Sylvester signed a change of plea form pleading guilty to two counts with an out-on-bail enhancement and great bodily injury enhancement, the prosecution would stipulate to a prison term of eight years and would not pursue obtaining documentation on Sylvester's prior Florida conviction.
On July 7, 2014, the prosecutor indicated that Judge Lewis had informed Sylvester about the possible prior conviction allegation and that defense counsel and Sylvester "had a conversation out loud about the prior conviction." Sylvester's counsel responded that he did not "remember Judge Lewis necessarily saying that there was going to be an amendment," but rather saying "something along the lines of: Do you understand what he's saying[?]" The court allowed the prosecution to file the third amended information.
As noted, in his prior appeal, Sylvester challenged the order allowing the People to file the third amended information alleging his prior conviction in Florida and this court remanded the case to the trial court (Judge Lasater) to reconsider the decision to allow the third amended information. The matter was remanded because the record indicated that Sylvester may not have been on notice of the maximum sentence he potentially faced by going forward with the trial when he decided to reject the prosecution's plea offer, and that the court was not accurately informed about the notice Sylvester had received of the prosecution's intended use of his prior conviction when it exercised its discretion to allow the third amended information.
Proceedings After Remand
The court conducted hearings on May 13 and 20, 2016, to reconsider its decision to allow the prosecution to file the third amended information. The prosecutor and defense counsel filed declarations recounting their recollections of the proceedings leading to the filing of the third amended information, but those declarations are not in the record on appeal. May 13, 2016 hearing
When the prosecutor stated that he wanted to "contest a couple of the points" defense counsel made in his declaration, the court stated, "I think the solution is just to argue it based upon the affidavits." The ensuing discussion between the court and counsel provided the court a more accurate and complete view of the circumstances surrounding Sylvester's rejection of the prosecution's plea offer and the prosecution's decision to file the third amended information than the court had when it initially allowed the third amended information to stand.
The prosecutor informed the court that on July 2, 2014, he sent defense counsel a letter and discovery consisting of "numerous police reports regarding [Sylvester's] prior criminal behavior in Florida[,]" including documentation of the offense and conviction that the prosecution ultimately alleged in the third amended information. The prosecutor explained that because the Florida felony battery statute under which Sylvester was convicted could result in a conviction under different theories that may or may not qualify as a strike in California, he did not want to allege a strike prior conviction until he had the facts underlying Sylvester's conviction.
The next day, July 3, the prosecutor and defense counsel negotiated the plea deal and Sylvester signed the change of plea form. The prosecutor represented that defense counsel was in possession of the Florida code section before he met with Sylvester on July 3 and filled out the form. The prosecutor stated, "When we went to court on Monday, July 7th, the intention was to have [Sylvester] enter the change of plea on the record that he had already signed . . . the previous Thursday." However, Sylvester changed his mind and rejected the plea deal. The prosecutor recalled overhearing Sylvester say the word "strike" during an unreported conversation with his counsel, but the court ruled that Sylvester's statement was protected by attorney-client privilege and inadmissible.
Defense counsel acknowledged there had been discussion with the court about Sylvester's felony conviction in Florida at the preliminary hearing and that "there was reference to a felony battery out of Florida" in the pretrial services report. However, because there was no reference to a specific code section, he was unable to research whether the Florida conviction would qualify as a California strike. Defense counsel said the paperwork he received on July 2 included juvenile reports and a case number regarding the felony battery, but no code section. He did not recall getting the code section on July 2, 2014 or "being able to do any kind of research regarding the prior conviction up and until after the trial had already started in this case, so as a result, prior to the actual trial, I was not able to talk to Mr. Sylvester specifically about, this is the code section; these are the elements; this is how it could . . . potentially be a strike prior; this is how potentially you could be facing significantly harsher punishment."
Defense counsel "expected that if [the prosecutor] was going to file it as a strike prior, he was going to provide me with the raps, so I could look that up, and that was never done, so the assumption would be . . . he doesn't have the strike prior, and that's why he's not giving me the information." Counsel's "position all along" had been that he "did not have the opportunity to do the research necessary to inform Mr. Sylvester about what the ramifications of that Florida prior were."
Noting that defense counsel had been "aware that there was a potential prior" and that the prosecution was "talking about amending to allege the prior from a foreign jurisdiction," the court asked counsel to address the fact that "the only way . . . that prior would/could be alleged would be as a strike prior . . . ." Counsel responded, "I agree that's the only way it could have been alleged, but it wasn't alleged until after the closing argument in the case. I think that is the issue." The court later asked defense counsel, "Wouldn't you agree that you are under an obligation when you know that there is the potential for a strike prior to be alleged to inform your client of that as an attorney?" Counsel replied, "Yes, I certainly agree with that." The court added, "And also that if a strike prior is alleged, it doubles the base term." Counsel replied, "I would agree with that as well." The court continued the hearing to review various documents mentioned by the attorneys, including the pretrial services report referenced in the preliminary hearing transcript. May 20, 2016 hearing
At the continued hearing on May 20, 2016 (May 20 hearing), the court recounted the information and evidence it had considered in deciding whether to allow the third amended information. The court noted that a pretrial services report dated February 7, 2014, referenced a felony battery conviction in Florida, and that the court and defense counsel both acknowledged the Florida battery conviction at the preliminary hearing on May 11, 2014, and at the trial readiness hearing on June 17, 2014. The court further noted: "On June 30th there's a letter documenting the conversation that had occurred that day[;] it was a letter from [the prosecutor] to [defense counsel]. The letter says specifically we also discussed your client's criminal history in Florida if and when I received information about your client's robbery case in Florida, I will provide it to you. I am awaiting documentation related to that case."
The court added: "As an aside, we know that that case in Florida started off as a robbery. It ended up as the felony battery conviction, but the idea of a robbery, again, connotes the potential for a strike."
The court (Judge Lasater) then noted that at the beginning of the July 7, 2014 hearing before Judge Lewis at which counsel were expecting Sylvester to enter a plea pursuant to the signed change of plea form, the prosecutor stated: "There is an issue potentially with a prior conviction the People are still not fully aware of. I believe the defendant was a juvenile in Florida. That's an issue [defense counsel] and I will need to discuss. Other than that, he is willing to plead guilty to what the offer was without the consideration of that prior." Judge Lasater at the May 20 hearing reasoned: "So even though Mr. [Sylvester] may not have understood exactly—taken by itself what was being said by [the prosecutor], it's clear that the discussion involved a prior that could potentially be charged as a strike."
Judge Lasater also reviewed a transcript of the proceedings before her on July 8, 2014, the first day of trial. Based on her discussion with counsel regarding the Florida prior on July 8, 2014, Judge Lasater concluded it was "clear that the defense—and I'm using that as [a] global term at the moment[—]knew about the potential adding of a strike on July 3rd and so that . . . potential was clear at that particular point." Noting that defense counsel "is a skilled defense attorney" who "knows his obligations," the court stated:
"I think it is a very reasonable and compelling deduction that he discussed that with Mr. Sylvester [and] that on July 3rd . . . Mr. Sylvester understood there was a strike prior possibility, and therefore I think the defendant was well aware of the potential. I agree with [defense counsel] that the People did not have the statute. You had nothing to compare it with, but that that still was a possibility out there. I do not believe that at that point in time you had to be aware of the actual statute . . . that Mr. Sylvester . . . had been convicted of. [¶] I understand, you know, the desire to want to research it, to find out if it's a strike or not a strike, . . . but I believe that Mr. Sylvester knew of that potential for a strike prior to be alleged if and when the paperwork came in and if and when the statute was one that could be compared to one of the strike offenses in California."
The court concluded that defense counsel "advised Mr. Sylvester as he was required to do it. . . . There's nothing that I had seen that would indicate otherwise about the strike prior, and the potential impact of doubling the offense. [¶] Given the totality of the things that I've outlined and that includes the Marsden hearings, I believe . . . Mr. Sylvester's mindset was that he really wanted to go to trial, and I think he made a determination. [Defense counsel] made a determination that he was going to go to trial. That was consistent with everything that I had including the Marsden hearings." The court added: "There were other things that caused him to make that decision not to accept that offer at that particular point in time on July 7th, but he did it knowingly. He rejected it knowingly, intelligently."
The court made it clear that in allowing the prosecution to amend the information, it was finding that Sylvester did not need "to be [apprised] of the exact statute and that defense counsel [did not need] to have the opportunity to make an analysis of [that statute] before the plea . . . . I don't believe that is required. I think as cases progress, people make decisions based upon what they know at that particular time and what . . . the possibilities are, but I don't believe that knowing for sure that it was a strike or having your attorney telling you that it's a strike, knowing what code section it is, it's required."
The court further observed: "I think that competent and skilled counsel has a duty to tell a defendant that this is out there and that the People are pursuing that and that this could happen, and I believe [defense counsel] did that, and I think that's a reasonable deduction under the circumstances, and I'm making that as a finding of fact based upon everything I have . . . that defense counsel did inform Mr. Sylvester of the fact that there was a potential strike allegation due to his prior conviction in Florida. The People were pursuing it. The consequences of that would be doubling the base term and that Mr. Sylvester knew all of that as a possibility and still decided not to take that offer." (Italics added.) Based on those findings, the court reaffirmed its decision to allow the third amended information.
The court's minutes from the May 20, 2016 hearing state that Sylvester's "[s]entence remains unchanged."
DISCUSSION
Sylvester contends the trial court abused its discretion in determining that he made a knowing and intelligent decision to reject the prosecution's plea offer and allowing the prosecution to file the third amended information. We find no abuse of discretion because we conclude the court reasonably found that when Sylvester rejected the plea offer, he knew there was a possibility the Florida prior conviction would be alleged as a California strike and could result in a much harsher sentence than he would have received under the plea deal.
As noted in the prior opinion, section 969a provides: "Whenever it shall be discovered that a pending indictment or information does not charge all prior felonies of which the defendant has been convicted either in this State or elsewhere, said indictment or information may be forthwith amended to charge such prior conviction or convictions, and if such amendment is made it shall be made upon order of the court, and no action of the grand jury (in the case of an indictment) shall be necessary. Defendant shall promptly be rearraigned on such information or indictment as amended and be required to plead thereto. Section 969a permits the prosecution to amend an information to include prior felony conviction enhancement allegations even after the jury has reached a verdict. (People v. Valladoli (1996) 13 Cal.4th 590, 594, 609 (Valladoli).)
"Section 969a expressly gives discretion to our trial judges to permit or deny the amendment [citation], and we rely in such matters on the prudent exercise of that discretion to ensure the due process rights of criminal defendants are adequately protected. In exercising such discretion, courts should scrutinize (i) the reason for the late amendment, (ii) whether the defendant is surprised by the belated attempt to amend, (iii) whether the prosecution's initial failure to allege the prior convictions affected the defendant's decisions during plea bargaining, if any, (iv) whether other prior felony convictions had been charged originally, and (v) whether the jury has already been discharged [citation]. This list . . . is intended to be illustrative rather than exhaustive, and . . . the matter is best left to the discretion of our trial judges." (Valladoli, supra, 13 Cal.4th at pp. 607-608, fn. omitted.)
In reviewing the trial court's exercise of discretion for abuse, we are mindful that "[t]he abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711, fns. omitted.) "Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom." (People v. Ugalino (2009) 174 Cal.App.4th 1060, 1064.)
The key issues the court considered on remand were whether Sylvester was surprised by the belated attempt to amend the information and whether the prosecution's failure to allege the prior Florida conviction earlier affected Sylvester's decisions during plea bargaining. The court found that before Sylvester rejected the prosecution's plea offer, defense counsel had informed him that his prior conviction in Florida might qualify as a strike in California that would double the base term of his sentence and, therefore, Sylvester rejected the plea deal "knowingly[ and] intelligently."
Sylvester addresses the Valladoli factor of "the reason for the late amendment" (Valladoli, supra, 13 Cal.4th at p. 607) by noting the prosecutor was aware of Sylvester's prior Florida conviction at the preliminary hearing six months before trial and that the late amendment seemed to be related to a dispute between the Florida authorities and the district attorney's office. Sylvester asserts that this dispute was "something the District Attorney's office should have resolved well before trial." However, he does not expressly argue that the apparent dispute between the district attorney's office and the Florida authorities is a factor that weighs against allowing the prosecution to amend the information.
The court's finding was reasonable and sufficiently supported by the evidence. At the preliminary hearing in May 2014, the prosecutor told the court he had obtained information about Sylvester's prior criminal history from Florida, including Sylvester's involvement "in such crimes as robbery, battery, and the list goes on." On July 8, 2014, the first day of trial, defense counsel told the court he remembered first hearing about the prosecution's "intention to add [the Florida prior conviction] as a strike prior conviction" on the preceding Thursday, July 3.
In the remand proceedings, defense counsel acknowledged that at the preliminary hearing he "did point out that on the pretrial services report there was reference to a felony battery out of Florida." The court noted that both the court and defense counsel acknowledged the Florida felony battery conviction at the trial readiness hearing on June 17, 2014. The court referenced a declaration by defense counsel in which counsel stated that at the June 17 hearing, the prosecutor, in the court's words "brought out the alleged Florida prior indicating that he thought it may be a strike[,] and that was June 17th, 2014." The court also referenced the prosecutor's letter of June 30, 2014, to defense counsel in which the prosecutor noted that he and defense counsel had discussed Sylvester's criminal history in Florida and was awaiting documentation related to that case.
Defense counsel acknowledged that the paperwork he received from the prosecution on July 2 included juvenile reports and a case number regarding the felony battery, although it did not provide the relevant Florida code section. The prosecutor represented that Sylvester and his counsel "had in their possession at the very latest July 2nd the information regarding the conviction in Florida [and were aware of] my intent to amend the charging document if possible." The prosecutor added that although defense counsel did not have the "Florida rap sheet[,] . . . he had all of the information. . . . It was in his possession when he signed the change of plea form with his client. He and I had already discussed that."
When the parties appeared before Judge Lewis on July 7, 2014, for trial call with the intention of entering the change of plea Sylvester had signed, the prosecutor immediately told the court that he and defense counsel needed to discuss "an issue potentially with a [Florida] prior conviction," but that Sylvester was "willing to plead guilty to what the [plea] offer was without the consideration of that prior." In the remand proceedings, the prosecutor explained that Sylvester and counsel then went to superior court Department 31 to put the change of plea on the record. The prosecutor informed the court that "[i]n Department 31 defense counsel went into the holding cell, had a conversation with [Sylvester], exited, and informed [the prosecutor] that [Sylvester] did not want to enter the change of plea that he had signed on the previous Thursday [7/3], did not want to enter that on the record, and that he wanted to have his trial." Consequently, the parties returned to Judge Lewis's department.
Thus, the prosecutor mentioned Sylvester's prior Florida conviction to the court in connection with his plea offer just before Sylvester told his counsel in the holding cell that he wanted to reject the offer. This sequence of events supports a reasonable inference that counsel advised Sylvester in the holding cell of the risk that his prior conviction would be alleged as a prior strike conviction and of the sentencing consequences of a strike prior. As noted, the court asked defense counsel, "Wouldn't you agree that you are under an obligation when you know that there is the potential for a strike prior to be alleged to inform your client of that as an attorney?" Counsel replied, "Yes, I certainly agree with that." The court then asked counsel, "And also that if a strike prior is alleged, it doubles the base term." Counsel replied, "I would agree with that as well."
The court observed and defense counsel agreed that the only way the potential prior conviction from Florida could be alleged was as a strike prior. The court further observed that "if the idea of the prior has been hanging out there for an extended period of time," a competent attorney would have explained to the defendant that there was a potential for a strike prior to be alleged. The court stated to defense counsel: "[F]rankly, you are an extremely competent attorney, so I think it would be reasonable for the court to have a reasonably good faith belief that you would have explained to your client . . . that there was a potential for a prior to be alleged, you would know that it would have to be a strike prior to have any significance to have the discussion."
Thus, upon reconsidering all of the circumstances surrounding the prosecution's request to amend the information to allege the Florida prior conviction and Sylvester's rejection of the prosecution's plea offer, the court reasonably found that Sylvester rejected the plea offer with full knowledge that his Florida prior conviction could qualify as a California strike and substantially increase his sentence. Implicit in the court's finding are determinations that Sylvester was not surprised by the belated attempt to amend the information and that the prosecution's failure to allege the prior Florida conviction earlier did not affect Sylvester's decision to reject the prosecution's plea offer. Because substantial evidence, including the representations of counsel, supported the court's finding, we conclude the court did not abuse its discretion in allowing the People to amend the information to allege the prior strike conviction.
If there is evidence outside the record that would support a different conclusion, Sylvester's proper remedy is a petition for writ of habeas corpus. --------
DISPOSITION
The May 20, 2016 order reflecting the court's decision to allow the filing of the third amended information is affirmed.
HALLER, J. WE CONCUR: MCCONNELL, P. J. HUFFMAN, J.