Opinion
A114498
12-11-2006
THE PEOPLE, Plaintiff and Respondent, v. TYRONE WILSON, Defendant and Appellant.
Tyrone Wilson appeals from a judgment entered upon his pleas of no contest to four counts of residential burglary. Appellant admitted these offenses were serious or violent felonies within the meaning of section 667.5, subd. (c)(21), and that he had suffered a prior felony conviction within the meaning of section 1170, subd. (c)(1). His court-appointed counsel has filed a brief raising no legal issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
PROCEEDINGS BELOW
On July 26, 2005, the San Mateo County District Attorney filed an information charging appellant with four counts of entering an inhabited building with the intent to commit larceny or any felony (Pen. Code, § 460, subd. (a) —counts 1-4) and one count of felony petty theft (§ 666—count 5) arising out of the offense alleged in count 4. The information additionally alleged a prior conviction that qualified as a strike (§ 1170.12, subd. (c)(1)) and subjected appellant to a five-year enhancement (§ 667, subd. (a)); that appellant had suffered five other prior felony convictions that each subjected him to one-year enhancements (§ 667.5, subd. (b)); and that, as a result of his prior convictions, appellant was ineligible for probation (§ 1203, subd. (e)(4)). On November 18, 2005, the district attorney filed an amended information alleging appellant was also ineligible for probation because the felony petty theft alleged in count 5 was committed while on parole from state prison (§ 1203.085).
All statutory references are to the Penal Code.
Appellants motion for substitution of counsel (People v. Marsden (1970) 2 Cal.3d 118) was apparently withdrawn on March 21, 2006 (all subsequent dates are in that year), and his subsequent motion for leave to represent himself (Faretta v. California (1975) 422 U.S. 806) was denied the following day.
The record is not entirely clear on this. Appellants Marsden motion was presented to Judge John W. Runde, the Criminal Presiding Judge, not to Judge Stephen M. Hall, who conducted all but the first of the five hearings of which the record contains transcripts. (The first hearing was conducted by Judge Mark R. Forcum.) At a hearing on March 22, Judge Hall stated his understanding that at the conclusion of the hearing before Judge Runde appellant indicated that instead of obtaining substitute counsel he wanted to represent himself.
At a hearing on March 27, after the court ruled that certain evidence proffered by the district attorney would be admissible at trial, appellant submitted an executed plea form changing his plea from not guilty to no contest. The trial judge admonished appellant as to the consequences of his new plea and appellant thereupon pled no contest to counts 1 through 4 and the attendant sentence enhancement allegations. After the court found that the pleas and admissions were freely and voluntarily given and accepted them, the district attorney moved to dismiss the remaining charge and allegations. Appellants plea, which was open to the court, exposed him to a maximum state prison sentence of 25 years. The sentence the court indicated it would impose was 17 years. The matter was referred to the probation department for preparation of the presentence report, which the department filed with the court on July 3.
At the sentencing hearing on June 30, appellant moved to continue sentencing on the ground that he wished "additional time to be able to complete his GED program and to complete the Choices program," and the court denied the motion. The court also denied appellants motion to strike a prior strike "in furtherance of justice" (§ 1385, subd. (a)) pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Imposing sentence, the court denied probation on count 1 and imposed the lower term on that count, doubling it pursuant to section 1170.12, subdivision (c)(1), for a total commitment of four years, which served as the base term. The court imposed one-third the middle term on count 2, and also doubled that term. On counts 3 and 4, the court also imposed one-third middle term doubled. The court also enhanced the sentence by five years pursuant to section 667, subdivision (a), for a total commitment of 17 years, which was the indicated sentence.
Appellant was ordered to pay a state restitution fund fine in the amount of $200, a fine pursuant to section 1202.45 was stayed pending successful completion of parole, and appellant was ordered to pay actual restitution to his four victims in an amount to be determined by the Government Claims Board. Finally, appellant was ordered to undergo genetic marker testing (§ 296) and awarded 471 days of credit for time served plus 70 days of good time/work time, for total credits of 541 days.
Timely notice of this appeal was filed on July 12.
FACTS
Appellant burglarized the homes of his four victims, all in the City of San Mateo, between November 2004 and March 2005. Three of the residences were occupied at the time of the burglary. The testimony of arresting officers at the preliminary hearings relates as follows. Elmer Alvarado, who lived on North Eldorado Street, said through an interpreter that he woke up at around 11:00 p.m. after hearing noises and found "a skinny, black, male wearing a black beanie cap and black clothes inside his living room." The man left and Alvarado followed. When Alvarado asked him what he was doing in the house, the man said he was trying to sell or soliciting the purchase of a bicycle and then tried to sell his bicycle to Alvarado. When Alvarado said he was going to call the police, the man fled the scene on the bicycle. Alvarado later noticed that a VCR and stereo were missing from his home. Alvarado identified appellant from a photo lineup.
On March 6, 2005, using an interpreter, Marco Garcia told a police officer called to the scene that at about 11:30 p.m. he was sitting in his living room when a man later identified as appellant walked in and "dropped a bunch of gardening tools on the couch" and asked for $50. Realizing that the tools were his and had been taken from his garage, Garcia "lunged" toward the stranger, who grabbed one of the tools, a "hammer drill," and ran out the front door. Garcia identified appellant from a "mug book" and later again in court.
Ilene Byrne was sleeping in the living room of her home on Claremont Street on December 17, 2004 when awakened by a stranger who said he was looking for the caretaker, one "Jose." Appellant left when Ms. Byrne said "get out," and she found nothing amiss after he departed.
The same night, Francisco Quezada saw appellant enter the rear unit of the house on South Idaho in which he lived, and later saw him come out of the apartment carrying a red portable stereo. When appellant realized he was being watched, he re-entered the apartment. Appellant fled on a bicycle. Quezadas neighbor found nothing missing when he returned to his home, but the radio had been moved from one room to another.
DISCUSSION
The scope of reviewable issues on appeal after a guilty or no contest plea is restricted to matters based on constitutional, jurisdictional, or other grounds going to the legality of the proceedings leading to the plea; guilt or innocence are not included. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896.)
The record indicates beyond doubt that appellant was fully informed by the court of the consequences of his change of plea and, with the assistance of competent counsel, entered it freely and voluntarily. The change of plea fully complied with Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122.
The record also shows that appellants Romero motion was properly denied. In ruling on whether to strike a prior strike, the trial court must consider "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161, citing Romero, supra, 13 Cal.4th at pp. 530-531.) The trial court was informed by the probation report that appellant, a 36-year-old unmarried father of one, "has an extensive history of prior criminal convictions for felony offenses including cocaine sales, robbery, grand theft from a person and false imprisonment." Between 1990 and 2002, he was committed to the Department of Corrections in five separate cases, and had been returned to custody for parole violations on "numerous occasions." According to the probation department, appellant "is a predator willing to take whatever he wants regardless of the consequences. He [admitted] that he targets Hispanic males because he knows they are likely to carry large amounts of cash. In the past he has ripped jewelry from the neck of a victim, taken the wallet of a victim who had been knocked to the ground and beaten his girlfriend as witnesses attempted to intervene." Given appellants history, it clearly would not be "in furtherance of justice" to strike a prior strike in order to render appellant eligible for probation. The Romero motion was properly denied.
Appellants Farretta motion was also properly denied. As the trial court pointed out at considerable length, appellant never asked to represent himself during any of the numerous pretrial hearings held in this case over a considerable period of time. Appellant only raised the issue when the case had been assigned out for trial, and accompanied his request with the admission that he was unprepared to go to trial and required a continuance in order to prepare his defense. The trial court denied appellants request to represent himself not only because of its apparent doubts as to appellants competence, but primarily because it "would cause an unjustifiable delay or result in an unwarranted obstruction of the [orderly] administration of justice." The ruling was proper. (People v. Windham (1977) 19 Cal.3d 121, 129; People v. Mayfield (1997) 14 Cal.4th 668, 798.)
Appellant was at all times represented by competent counsel who guarded his rights and interests.
The sentence imposed is authorized by law.
We concur:
Haerle, J.
Lambden, J.