Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Humboldt County Super. Ct. No. CRO71323
Kline, P.J.
Elliott Michael Walin appeals from conviction entered upon a plea of guilty. His court-appointed counsel has filed a brief raising no legal issues and asking this court to conduct an independent review pursuant to People v. Wende (1979) 25 Cal.3d 436. The trial court granted appellant a certificate of probable cause, and the appeal, which is timely, is authorized by Penal Code section 1237.5 and rule 8.304(b) of the California Rules of Court.
All statutory references are to the Penal Code unless otherwise indicated.
STATEMENT OF THE CASE
An information filed in Humboldt County Superior Court on April 12, 2007 charged appellant with eight counts: attempted murder (§§ 187, subd. (a), 664) with use of a gun (§§ 12022.5, subd. (a), 12022.53, subd. (b)–count 1); second degree robbery (§ 211) with the use of a gun (§§ 12022.5, subd. (a), 12022.53, subd. (b)–count 2); being a felon in possession of a gun on March 18, 2007 (§ 12021, subd. (a)–count 3); being a felon in possession of ammunition (§ 12136, subd. (b)–count 4); possessing a dangerous weapon (§ 12020, subd. (a)–count 5); assault with a firearm (§ 245, subd. (a)) with personal gun use (§ 12022.5, subd. (a)–count 6); being a felon in possession of a gun on March 14, 2007 (§ 12021, subd. (a)–count 7); and unlawful taking of a vehicle with a prior conviction for the same offense (Veh. Code, § 10851, subd. (e)) with personal use of a gun (§ 12022.5, subd. (a)–count 8).
The information also alleged that appellant had served two prior prison terms (§ 667.5, subd. (b)), one for unlawful taking of a vehicle in 2003, and the other for unlawful possession of ammunition in 2005.
After appellant rejected a prior sentencing offer from the prosecution, the parties agreed to a negotiated disposition. An additional prior prison term enhancement was added to the information, appellant waived his right to trial and entered a plea of guilty to counts 3 and 4 and admitted three prior prison terms, for a negotiated prison term of six years eight months, and the district attorney dismissed all other counts and special allegations. Appellant also stipulated that the preliminary hearing transcript provided a factual basis for the plea. Consistent with the agreement, the court sentenced appellant to the upper term of three years for count 3, a consecutive subordinate term of eight months for count 4, and a consecutive term of three years for the three prior prison terms. Appellant was given total credits of 117 days (79 days actually served plus 38 days of conduct credit).
FACTS
The facts are those shown by the transcript of the preliminary hearing. Humboldt County Deputy Sheriff Joseph Jager testified that at 6:30 in the morning on March 14, 2007 (all dates are in that year) he was called to 646 Zanone Road in Eureka to investigate a report of a stolen vehicle and shots fired. When he arrived, the resident of the property, Lloyd Morris, told him that on the night of March 13 or early morning hours of the following day, he was woken up by the sound of a truck being started on the property. When he went outside he saw appellant backing the truck, a white Toyota pickup, out of his driveway. Morris ran to the truck and broke the windshield with a baseball bat he had brought with him. When he attempted to open the passenger side door, appellant fired a shotgun at Morris, shattering the door window. Appellant then drove the truck away. Bradley Jacks, the owner of the truck who was awoken by the gunshot, told officer Jager that he had not given appellant permission to drive the truck. Later, Jager showed Morris a “six-pack” photo lineup and Morris immediately identified appellant.
On March 28, after obtaining appellant’s address from his parole agent, Rio Dell Police Officer Timothy Dias and other officers went to 123 Cedar Street, where appellant lived, and was given permission by the owner of the property to enter the property. In the backyard Officer Dias met Veronica Haselip, appellant’s wife or girlfriend, who lived with him in the “mother-in-law unit” at the rear of the property. After Dias told Haselip the officers were there to search for appellant, she permitted the officers to enter the living unit. Appellant was found in a bedroom hiding under a blanket. A sawed-off shotgun was found close by under a coat on the bed. Two shells for the gun were found in a pocket of the coat, and another was found in appellant’s pants pocket.
DISCUSSION
On April 12th, appellant moved for a protective order on the ground, stated in the motion, that the allegations against appellant “have attracted attention from local media outlets and that the District Attorney’s office is actively releasing information to the press.” The motion was accompanied by a copy of an April 4th article in The Eureka Reporter quoting Deputy District Attorney Arnold Klein describing the charges against appellant and the circumstances of his apprehension that we have earlier described. The deputy district attorney was also quoted as stating that certain evidence might indicate appellant had committed other vehicle thefts and noting that appellant “had just been recently paroled for grand theft auto” and “some people never learn.” At a brief hearing on the motion, Deputy District Attorney Klein stated that the article in The Eureka Reporter “merely reflects statements that I made that were [a] recital of facts made in open court based on People’s [exhibit No.] 1, a certified rap sheet.” He also argued that the public defender had not “made a clear and present showing that her client . . . will be denied a fair trial [as a result of] anything said in the future in this case.” Klein pointed out that prospective jurors would be questioned about any publicity about the case they may have heard about, and other instructions would also insure that they not consider anything other than the evidence presented in court. In her brief remarks, the deputy public defender insisted that all she was trying to stop was “the district attorney from shaping this particular case in the media.” She also complained about a statement of the district attorney to the effect that “the first step toward tyranny is to stifle the news media” was “an inflammatory comment toward me and the fact that I’m trying to protect my client’s right to a fair trial.”
The trial court expressed some dismay that Deputy District Attorney Klein had discussed appellant’s priors with the media, pointing out that a prosecutor should not provide information to the press if he or she “ ‘know[s] that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter,’ ” and noting that the issue of priors could be bifurcated, and that this is sometimes done due to the possibility some people may “think an individual charged with a crime is more likely to have committed a crime because of their prior history.” The court also observed that while “information regarding parole status or probation status . . . is a matter [of] public record . . ., [t]his is a small community,” and that “places even a greater burden on counsel to be circumspect in what they might say to the media because it’s well expected that members of the community are going to read the paper, they’re going to find out . . . about a case and perhaps come to judgment . . . before all of the facts are presented in open court in a fair fashion in which due process is accorded.”
Despite his concerns, the trial judge denied the motion, but did so in a commendably cautionary way, stating as follows: “I’m not inclined to grant a gag order at this time. I will deny that. [¶] But . . . I’ll deny it without prejudice. [¶] I suppose counsel can consider that a shot over the bow. Let’s leave it at that.” (Italics added.)
There are certainly circumstances in which a judge presiding over the trial of a criminal case must issue a protective order to control pretrial publicity to assure the accused a fair trial. (Sheppard v. Maxwell (1966) 384 U.S. 333; Hamilton v. Municipal Court (1969) 270 Cal.App.2d 797, 800-801) This is, however, clearly not such a case. It is not sufficient merely to show that a case generated publicity, as was done here; the defendant must also show prejudice (People v. Floyd (1970) 1 Cal.3d 694, 705-706), and showings of the prejudice necessary to justify a gag order are far more often held insufficient than adequate. (See especially People v. Manson (1976) 61 Cal.App.3d 102, 191-192; see also 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 365, pp. 529-531 and cases there cited.) Appellant would suffer prejudice only if it is reasonable to think his guilty plea may have been induced by genuine fear that pretrial publicity would result in a biased jury, depriving him of a fair trial. Such a belief is not reasonable. Given the extraordinary weight of the evidence of appellant’s guilt and the fact that the agreed upon sentence was significantly shorter than that to which appellant was exposed, it is inconceivable pretrial publicity had anything to do with appellant’s decision to enter a guilty plea.
In his written request for a certificate of probable cause, appellant stated that the sentence imposed included a consecutive three-year term based on a prior prison term enhancement. According to appellant, “as of January 07, the Supreme Court of Calif[ornia] says that ‘prison prior enhancements’ are unconstitutional! The S. Court of CA. also says that CA’s law enabl[ing] judges giving criminals increased prison sentences through so-called ‘enhancements[’] is and was illegal. That role is reserved for ‘juries’.” The case to which appellant refers, presumably People v. Black (2007) 41 Cal.4th 799, clearly does not help him. Clearly, “a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict,” and “the right to a jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction.” (People v. Sandoval (2007) 41 Cal.4th 825, 836-837.)
During the period of time his plea and sentence were negotiated, appellant was represented by able counsel. The court fully informed appellant of the consequences of his plea and the rights he would be giving up by his plea before it was entered, and the record satisfactorily shows appellant’s plea was fully informed and freely made.
There is no reason to question appellant’s mental competence to participate in the proceedings and enter his plea.
There was no sentencing error.
There are no legal issues that require further briefing.
The judgment and sentence imposed are affirmed.
We concur: Haerle, J., Lambden, J.