Opinion
E073062
12-07-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH CHANDLER DAVALL, Defendant and Appellant.
Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Charles C. Ragland, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1202564) OPINION APPEAL from the Superior Court of Riverside County. Ortis Sterling III, Judge. Affirmed. Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
The People charged Joseph Chandler Davall with assault with a deadly weapon, false imprisonment, burglary, and assault with intent to commit rape. (Pen. Code, §§ 220, subd. (a)(1), 236, 245, subd. (a)(1), 459; unlabeled statutory citations refer to this code.) During defense counsel's arguments to the jury, she conceded that Davall had committed the first three offenses. The jury convicted Davall of those three offenses but was unable to reach agreement on the fourth offense, assault with intent to commit rape. The court declared a mistrial as to that count, and it was later dismissed after Davall pled guilty to a misdemeanor charge.
On appeal, Davall argues that the trial court should not have permitted counsel to concede his guilt without confirming that Davall consented to that approach. He also brings a substantial evidence challenge to his conviction for false imprisonment and argues that we must reduce the conviction to attempted false imprisonment. We reject both arguments and affirm.
BACKGROUND
The victim in this case worked the overnight shift at a resort in Desert Hot Springs. One night during her shift, she was lying on the bed in one of the vacant guest rooms when Davall entered the room. She got up, and he shined a flashlight in her face and asked who she was. She replied, '"Can I help you? I'm the innkeeper here."' He threw her to the bed and pinned her down. She screamed, and he covered her mouth with his hand and told her to be quiet. When she did not stop screaming, he hit her with the flashlight numerous times. He tried to put his hand underneath her clothes and pull down her leggings, and she could feel and taste blood on her face. She flapped her arms, kicked, and yelled—she was "doing everything [she] could to not stay on that bed." She eventually was able to get up from the bed, but he pulled on her, and they fell to the floor. He hit her all over her body, and they continued to struggle. From the floor, she could see that the door was not completely closed, and she began dragging herself toward it. Davall tried to hold her back, but she was able to reach the door with the tips of her fingers and open it. Once the door swung open, Davall ran out.
Count 1 of the amended complaint charged Davall with assault with intent to commit rape, while counts 2 through 4 charged him with assault with a deadly weapon, false imprisonment, and burglary. In defense counsel's closing argument, she told the jury: "I started this case by telling you that the job you are going to have is actually a little bit more simple than most juries. I told you that we are conceding Counts 2, 3, and 4. [¶] And it's because Mr. Davall is guilty of Counts 2 and 3 and 4, that there's no reasonable way that he can be guilty of Count 1, not unless he had that extra set of hands." The jury found Davall guilty on counts 2 through 4 but could not reach a unanimous verdict on count 1. The court declared a mistrial on count 1.
Davall did not include the opening statements in the record on appeal. --------
Ten months after the verdict, Davall pled guilty to a new misdemeanor count for engaging in lewd or dissolute conduct in a public place. (§ 647, subd. (a).) He also admitted to one prior strike and one prior serious felony conviction. At his sentencing hearing, the court granted the People's motion to dismiss count 1. The court sentenced Davall to a total of 14 years four months in prison.
DISCUSSION
I. Waiver of the Right to Appeal
As a threshold issue, the People argue that Davall waived the right to appeal as part of his plea deal, and we should therefore dismiss the appeal. We decline to do so.
Davall signed a misdemeanor plea form and circled the option on the form that "waiv[ed] any right to appeal that [he] may have." The form stated that he would plead guilty to "added count 5," the new misdemeanor count, and the People would dismiss any charges and enhancements that he did not admit. At the plea hearing, defense counsel explained: "So to bring the Court up to speed, the hang-up was whether or not the People were going to try Count 1 since that was the hang at trial. [¶] The agreement that we entered into was basically we'll give you this misdemeanor and allow Judge—to allow Your Honor to sentence as to the remaining counts, whatever Your Honor would like to sentence him to." At the sentencing hearing several months later, the court did not advise Davall of any appellate rights. When the court asked the parties whether there was "[a]nything further" at the end of the hearing, neither party mentioned the appellate advisements.
A plea agreement is a contract that we interpret according to general contract principles. (People v. Shelton (2006) 37 Cal.4th 759, 767.) Thus, if the language of the plea agreement is clear and explicit, it governs. (Ibid.) If the language is ambiguous or uncertain, courts must look to other objective manifestations of the parties' mutual intent, such as the circumstances under which the parties entered into the agreement, the subject matter of the agreement, and the subsequent conduct of the parties. (Ibid.)
In this case, Davall did not clearly waive his right to appeal with respect to his convictions by the jury. The plea form is clear that Davall waived his right to appeal with respect to the misdemeanor count. That is the only count that the form expressly mentions. But Davall's appeal does not relate to his misdemeanor conviction. And defense counsel's description of the agreement at the plea hearing does not persuade us that he waived his right to appeal the convictions by the jury. Counsel stated only that the parties had agreed the court could sentence Davall on those convictions however the court saw fit. In other words, they had not agreed on any particular sentence as part of the plea agreement. She did not say that the parties had agreed Davall would waive his appeal rights as to the remaining convictions. The lack of appellate advisements at his sentencing hearing is not dispositive, given the overall lack of clarity here. In sum, because Davall did not clearly waive his right to appeal the convictions by the jury, we will consider the merits of the appeal rather than dismiss it.
II. Counsel's Concession of Guilt
Davall argues that the court erred by allowing defense counsel to concede his guilt on some counts without confirming that he consented to that approach. The argument is meritless.
Our Supreme Court rejected this argument in People v. Cain (1995) 10 Cal.4th 1 (Cain). The court held that counsel's express concession of guilt during arguments was not tantamount to a guilty plea. (Id. at p. 30.) Moreover, the trial court had no duty to inquire whether the defendant agreed with the concession, absent an "explicit indication the defendant disagree[d] with his attorney's tactical approach to presenting the defense." (Ibid.) Davall did not indicate that he disagreed with counsel's approach here, so the trial court had no duty to inquire about his consent.
Davall argues that Cain is not controlling because it predates the United States Supreme Court's decision in McCoy v. Louisiana (2018) ___ U.S.___, (McCoy). But McCoy does not undermine Cain. In McCoy, counsel conceded guilt during the guilt phase in an attempt to avoid a death sentence during the penalty phase. (McCoy, supra, 138 S.Ct. at p. 1506.) McCoy expressly objected to that approach "at every opportunity" (id. at p. 1509); as the court described it, he "vociferously insisted that he did not engage in the charged acts and adamantly objected to any admission of guilt." (Id. at p. 1505.) The Supreme Court held "that a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel's experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty." (Ibid.) Thus, "counsel may not admit her client's guilt of a charged crime over the client's intransigent objection to that admission" (id. at p. 1510), and the trial court's "allowance" of the admission "despite McCoy's insistent objections" was structural error (id. at p. 1512). The Court was careful to distinguish prior case law, Florida v. Nixon (2004) 543 U.S. 175 (Nixon), holding that when "counsel confers with the defendant and the defendant remains silent, neither approving nor protesting counsel's proposed concession strategy, [citations], '[no] blanket rule demand[s] the defendant's explicit consent' to implementation of that strategy." (McCoy, at p. 1505, quoting Nixon, at p. 192; see also McCoy, at p. 1509.)
Cain is consistent with McCoy and Nixon. McCoy requires an express objection to counsel's concession, and Nixon rejects a blanket rule demanding the defendant's express consent to counsel's concession strategy. Nothing in either case requires the trial court to inquire about or confirm the defendant's consent when the defendant has not expressed any objection. (See People v. Lopez (2019) 31 Cal.App.5th 55, 65-66 [concluding that McCoy and Nixon are consistent with Cain].)
For these reasons, the court did not err by failing to confirm that Davall consented to the concession approach.
III. Substantial Evidence of False Imprisonment
Davall argues that the record does not contain substantial evidence of false imprisonment. He asserts that the victim was not "[a]ctually [c]onfined" because she fought back, so we must reduce the conviction to attempted false imprisonment. We disagree.
In evaluating claims of insufficient evidence, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Lindberg (2008) 45 Cal.4th 1, 27.) "We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence." (Ibid.)
"False imprisonment is the unlawful violation of the personal liberty of another." (§ 236.) "[T]he essential element of false imprisonment is restraint of the person. Any exercise of express or implied force which compels another person to remain where he does not wish to remain, or to go where he does not wish to go, is false imprisonment." (People v. Bamba (1997) 58 Cal.App.4th 1113, 1123.)
The record discloses substantial evidence of restraint here. Davall compelled the victim to remain in the room by pinning her down on the bed and beating her with the flashlight. When she was able to get off the bed, he pulled her to the floor and restrained her progress towards the door by hitting her more. She eventually dragged herself to the door and swung it open with the tips of her fingers. The evidence shows that she clearly did not wish to remain in that room with Davall and was compelled to do so only by his exercise of force and violence. The fact that she fought back does not mean that she was never restrained.
Davall's reliance on People v. Martinez (1984) 150 Cal.App.3d 579 (Martinez) does not convince us otherwise. Martinez observed that "the application of physical force upon a person is insufficient to establish his seizure or confinement for purposes of kidnaping and false imprisonment if the person successfully resists the force used." (Id. at p. 600.) The victim in Martinez ran down a hallway and past the defendant. (Id. at p. 598.) He "tried to obtain control of her by grabbing her hair," but "[s]he kicked herself loose before he could do so." (Ibid.) Her "immediate response" to his threat to confine her "was to successfully challenge his ability to do so," and "at no time" was she subdued by fear or force. (Id. at pp. 601-602.) The court held that those facts constituted attempted confinement but not confinement. (Id. at p. 601.) But if the defendant had succeeded in securing the victim, or if the threat of his presence had caused her to remain where she was "for any appreciable length of time," she would have been confined. (Ibid.) The facts in this case are materially different from those in Martinez. Davall secured the victim and restrained her for an appreciable length of time, despite her resistance. She did not immediately escape his attempts to restrain her, like the Martinez victim.
In short, Davall's substantial evidence challenge lacks merit.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J. We concur: MILLER
Acting P. J.
CODRINGTON
J.