Opinion
A148715
03-01-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID WILKES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. 221026)
Appellant David Wilkes timely appeals from a final judgment of conviction following a revocation of probation and sentencing in the San Francisco City and County Superior Court. The appeal is authorized by Penal Code section 1237, subdivision (a). Appellant's court-appointed counsel has filed a brief raising no legal issues and asking this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel advised appellant of his right to file a supplemental brief in his own behalf and appellant has filed such a brief.
All statutory references are to the Penal Code unless otherwise indicated.
STATEMENT OF THE CASE
In November 2012, appellant was charged with felony violations of attempted second degree robbery (§§ 664/211) (count 1), assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)) (count 2), and misdemeanor vandalism (§ 594, subd. (b)(2)(A)) (count 3). The complaint also alleged appellant suffered two prior serious or violent felony "strike" convictions, for second degree robbery (§§ 667, subd. (d)(e), 1170.12, subd. (b)), two prior serious felony convictions (§ 667, subd. (a)(1)), and that he had served six prior prison terms. (§ 667.5 subd. (b).)
On October 3, 2013, appellant entered a guilty plea to count 2, assault with force likely to cause great bodily injury, in exchange for dismissal of all other charges and allegations. At sentencing on November 1, 2013, the court suspended imposition of sentence and placed appellant on three years of supervised adult probation with credit for time served.
After numerous probation violations, bench warrants, and reinstatements of probation during the next several years, appellant admitted his last probation violation on June 24, 2016. This time, his probation was revoked and he was sentenced to a four-year upper term with credit for 1,454 days, which essentially resulted in a "paper commitment," because 1,454 days is only a few days short of four years.
A supplemental probation report prepared in connection with the most recent motion to revoke probation indicates appellant admitted violating probation, and probation was reinstated, five times before the last motion was filed and granted. During that period, appellant's probation was modified seven times.
FACTS AND PROCEEDINGS BELOW
The underlying offense, attempted second degree robbery, was the attempted theft of a bicycle from its owner, who was standing next to the bike. When the owner resisted, appellant repeatedly punched him and threw an empty Coca-Cola bottle at him, hitting him on the elbow, and ran. Appellant was quickly apprehended and, when placed in the back of a patrol car, kicked out a window and shouted to passers-by for help.
On August 7, 2013, the trial court declared a doubt about appellant's competence to stand trial and his competency to represent himself. A court-appointed psychologist diagnosed appellant as suffering from paranoid schizophrenia and opined that he was at that time competent to stand trial but incompetent to represent himself.
The most recent probation violation occurred in February 2016. On February 16, appellant was taken to the Cherry Hill program, a detoxification facility, and informed that successful completion of that program was a prerequisite for him to re-enter the Wistar drug rehabilitation program that had been ordered by the court. Two days later, the Cherry Hill program notified the probation department that appellant left the program. On February 23, the department was informed that appellant had not contacted the Wistar program. A motion to revoke probation was filed by the probation department and appellant failed to appear at the revocation hearing scheduled for February 25, resulting in issuance of a bench warrant. Appellant was arrested on the bench warrant on March 23, 2016.
In recommending that probation be revoked and sentence imposed, the probation department noted that probation had been modified seven times and five warrants had been issued, indicating that appellant "is not suitable for probation supervision" and "has done very little to address his substance abuse and his mental health issues." Additionally, appellant "has incurred numerous arrests in San Francisco County, including trespassing, vandalizing hospital property, sexual battery and assault," and has also been arrested "for burglary and a mental health detention" in Berkeley. Finally, appellant "scored high on the STATIC-99R, the state authorized assessment tool used to measure risk of sexually reoffending," indicating "a risk to the community."
After appellant's probation was revoked, he was sentenced to 18 months in county jail, which term could be served in the Wistar residential treatment facility. However, at a hearing on May 13, 2016, representatives of the sheriff's department explained the reasons they objected to the portion of the order directing treatment of appellant at the Wistar program, which were that appellant (1) had previously absconded from the Wistar program, (2) had high risk scores on the objective risk assessment scale, (3) was subject to a sex offender registration requirement under section 290, and (4) had a criminal history involving violence.
During the court's inquiry of the representatives of the sheriff's department, appellant repeatedly interrupted the discussion by challenging the sheriff's department's involvement in the proceedings and the merits of its position, and ignored the court's repeated admonitions to desist or be removed from the courtroom. Undaunted, appellant insisted that his civil rights were being violated. Finally, just before the court ordered that appellant be removed from the courtroom, appellant stated that "I fear for my life from the sheriff's department" and "I'm asking for a Marsden motion on the record, and a Faretta motion."
After the sheriff's representatives left the courtroom, appellant's counsel, Christopher C. Hall, advised the court that there had been a breakdown in his relationship with appellant and asked the court to allow him to withdraw from the case "[r]ather than go through the time and expense on a Marsden." When the court indicated it would feel more comfortable allowing withdrawal "if I knew there was somebody prepared to step into your shoes so that he was represented by counsel," Hall recommended replacement with James Senal, who had represented appellant in the past and was familiar with his history. The matter was put over to May 20, to see whether Senal was available.
Senal appeared at the May 20 hearing and appellant, who no longer wished to file a Marsden or Faretta motion, indicated he was happy to be represented by him, stating: "I know Mr. Senal quite well. He was the original attorney on my case in 2013, so he's familiar with me."
Senal's first act on behalf of appellant was to move to withdraw his admission to a violation of probation on the ground that section 19.2 prohibits confinement of a defendant such as appellant in a county or city jail "for a period in excess of one year," and the 18-month jail sentence imposed on appellant was therefore unlawful.
At a hearing on June 24, 2016, the trial court acknowledged it had mistakenly imposed the unlawful sentence that had been agreed to by appellant when he was represented by Hall, and vacated that sentence. Because at the time appellant admitted violating probation, he relied on representations of the People and the court that the sentence later declared unlawful would be imposed, the court allowed the admission to be withdrawn.
At that point, Senal described for the record the "extensive discussions" that had taken place between him and the district attorney, which the court was apparently privy to, after Senal entered the case "about how we can resolve this matter." Senal stated that if appellant admitted a violation of probation the court would impose a four-year state prison sentence, reinstate 200 days of previously earned credit "that had been waived for all times and all purposes," which with present credits would give appellant credits of 727 days for time served, giving him total credits of 1,454 days. As counsel stated, "[t]hat puts Mr. Wilkes three days shy of the number of days he needs to actually serve on a four-year commitment. [¶] The court would revoke Wilkes's probation, sentence him to the aggravated term of four years, giving him the 527 days he had not waived, plus the 200 days which the court does not have to reinstate, but is willing to reinstate . . . based on Wilkes's admission." [¶] That would leave Wilkes three days to actually serve in the county jail on—well, in prison. But he would not actually be sent to prison in the next three days, this being Friday. [¶] On Monday, he would be eligible for release, and he has to go report to parole."
Later in the hearing, counsel acknowledged that a four-year commitment is the equivalent of 1,460 days—which is six days, not three days, more than the 1,454 days of credit appellant would receive—but appellant would be entitled "to half-time" while in the county jail, and for that reason, released on the Monday following the Friday hearing.
After the deputy district attorney stated that the People had "no objection," the court stated that it was "prepared to follow what the parties had agreed to . . . the net result of which would be that you would be released from custody on Monday" and placed on supervised parole.
The court then admonished appellant as to the rights he would be giving up by admitting he violated probation, established that appellant had discussed with his attorney the terms of the negotiated disposition, and any other questions he may have had, and that appellant made his admission freely and voluntarily. Counsel also stipulated to a factual basis for the admission referring to the facts set forth in the probation report. The court found that there was a factual basis, and that appellant "has been advised of his rights and has freely, knowingly, and intelligently given up those rights and admitted a [probation] violation, well knowing the consequences of the admission."
For those reasons, the court accepted the admission and revoked appellant's probation. The court also imposed a $200 probation revocation restitution fine and directed appellant to report to his parole officer within 24 hours of being released from custody.
DISCUSSION
Because there is no need for a formal admonition at the outset of a revocation proceeding that the defendant would be subject to a specific sentence, a court may receive an admission of a probation violation without providing the same warnings required before a guilty plea may properly be accepted. (People v. Clark (1996) 51 Cal.App.4th 575, 581-582; People v. Garcia (1977) 67 Cal.App.3d 134, 136.) Nevertheless, before admitting he violated probation, appellant was advised he would be subject to a specific sentence and did receive the same warnings required to be given before a court may accept a guilty or no contest plea. Therefore, appellant unquestionably had adequate notice, opportunity to be heard, and assistance of counsel prior to admitting he violated probation.
At all periods of time during which his admission was negotiated and received, and his sentence considered and imposed, appellant was represented by able counsel who zealously protected his rights and interests.
The record contains an adequate factual basis for the admission.
There is no reason to question appellant's present mental competence to knowingly participate in the proceedings, understand the admonitions he received from the court, and enter his admission.
As noted, defense counsel Senal represented appellant in the 2013 criminal proceeding at which he entered a plea of guilty to the underlying felony offense. Senal was therefore aware that the judge in that proceeding, and perhaps also Senal, had doubts about appellant's mental competence and appointed Dr. John Shields to evaluate appellant. Dr. Shields found appellant competent to stand trial but not competent to represent himself. The trial judge who presided over the revocation proceedings was also aware of the prior doubts that had been expressed about appellant's competence. It is significant that both defense counsel and the court, both of whom were alert to the past doubts about appellant's mental competence, must be deemed to have concluded that appellant was mentally competent to participate in the revocation proceedings. At one point in the May 20 hearing, Senal indicated that he had "concerns about . . . whether Wilkes is competent to represent himself," but when asked by the court "are you formally declaring a doubt as to his competency under [section] 1368?" Senal responded "No. I'm not." Nothing in this case that took place on the record or is referred to in the record leads us to doubt appellant's competence to understand and participate in the revocation proceedings and to voluntarily, knowingly, and intelligently admit violation of probation. --------
Finally, the sentence imposed is lawful.
Having considered the entire record, we conclude that there are no legal issues that require further briefing.
DISPOSITION
The judgment and sentence imposed are affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.