Opinion
C083815
04-16-2018
THE PEOPLE, Plaintiff and Respondent, v. JEFFERY TAYLOR, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STKCR20157432)
Defendant Jeffrey Taylor pleaded guilty to second degree robbery (Pen. Code, § 211) and voluntary manslaughter (§ 192, subd. (a)). Defendant also admitted firearm enhancements. (§ 12022.53, subds. (b), (c), (e)(1).)
Undesignated statutory references are to the Penal Code. --------
On appeal, defendant contends the trial court erred in denying his motion to withdraw his plea. Defendant also argues the trial court erred in failing to order, sua sponte, a hearing to determine whether defendant was competent to plead guilty. Defendant also contends his sentence is illegal and that he received ineffective assistance of counsel. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 8, 2014, defendant was standing outside his apartment, arguing with his girlfriend, Vanessa S. Defendant pulled out a .40-caliber handgun and shot Vanessa in the chest multiple times, killing her. There was no self-defense involved.
On August 27, 2015, defendant organized a robbery of a local smoke shop. It was alleged defendant sent his coconspirators into the store, and they brandished firearms as they robbed $3,000 from the store clerk, Muhammad K. Defendant was a member of the North Side Gangster Crips (NSGC) street gang. Defendant and his fellow gang member, Phillip Duncan, did the robbery for the benefit of, at the direction of, or in association with the NSGC criminal street gang, knowing the criminal purpose of the gang. Defendant provided the guns and guidance about how to do the robbery. Defendant also had his (new) girlfriend transport his coconspirators to the store and help them get away.
In September 2015, defendant was charged with two counts of attempted murder (§§ 187, subd. (a)/664; counts 1 & 2), attempted second degree robbery (§§ 211/664; count 3), two counts of carrying a loaded firearm in public while being an active participant in a criminal street gang (§ 25850, subds. (a), (c)(3); counts 5 & 8), criminal street gang activity (§ 186.22, subd. (a); count 6), second degree robbery (§ 211; count 7), murder (§ 187, subd. (a); count 12), being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 13), and illegally carrying a concealed firearm in a vehicle (§ 25400, subd. (c)(1); count 14).
It was further alleged as to all counts except count 6 that defendant committed the offenses for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) It was also alleged as to counts 1, 2, 3, 7, and 12 that defendant intentionally and personally discharged a firearm (counts 1, 3, & 12, § 12022.53, subd. (d); count 2, § 12022.53, subd. (c); count 7, § 12022.53, subds. (b), (e)(1)). With respect to count 1, it was alleged that defendant personally inflicted great bodily injury on the victim. (§ 12022.7, subd. (a).) It was also alleged with respect to all counts that defendant had a prior serious felony (§§ 667, subd. (d), 1170.12) and a prior prison term (§ 667.5, subd. (b)).
On June 6, 2016, counsel informed the trial court the parties had reached an agreement. Per the parties' agreement, count 12 was amended and defendant pleaded guilty to voluntary manslaughter (§ 192, subd. (a); count 12) and second degree robbery (§ 211; count 7). In addition, the firearm enhancements were amended and defendant admitted firearm enhancements with respect to count 7 (§ 12022.53, subds. (b), (e)(1)) and count 12 (§ 12022.53, subd. (c)). Defense counsel John Panerio informed the trial court defendant had "[n]o opposition" to the prosecutor's motion to amend count 12 and the firearm enhancements. The remaining charges and allegations were dismissed. In exchange, the parties agreed defendant would receive a total term of 30 years in state prison, consisting of 26 years for count 12 and the associated firearm enhancement, three years four months for count 7 and the associated firearm enhancement, and four months' additional presentence credit.
During the plea hearing, the trial court explained the potential consequences of the plea deal, and defendant responded "[y]es" when asked whether he understood. The trial court also explained defendant's right to a preliminary hearing, a speedy and public jury trial, to be confronted by and cross-examine all witnesses called against him, to have subpoenas issued to make his witnesses and evidence brought to court, to testify and present evidence, and to remain silent and not present any evidence. Defendant responded "[y]es" when asked whether he understood these rights and stated he was giving up each of those rights. The trial court asked whether defendant had "any questions about your rights, consequences of this plea deal or anything that's happening here today on your case?" Defendant responded, "No." The trial court asked whether defendant had an opportunity to talk with counsel about his rights, the consequences of his plea deal, and his possible defenses. Defendant responded, "Yes." Counsel also told the court he had sufficient time to discuss these matters with defendant, and that defendant understood them. The trial court asked whether anyone had threatened defendant "in any way" to get him to enter the plea deal, and defendant responded, "No." Defendant also informed the court he was entering the plea deal "freely and voluntarily" and was not currently under the influence of alcohol, narcotics, medication, or "any other substance that would affect [his] ability to enter into this plea deal." In addition, he was not "supposed to be taking medication that [he was] not taking that would affect [his] ability to enter into this plea deal."
In July 2016, the trial court granted defendant's request for new counsel to evaluate his desire to withdraw his plea. In September 2016, defendant moved to withdraw his plea, arguing his plea was not of his own free will. In support of his motion, he submitted a declaration stating he had been in " 'the hole' " when he entered his plea. In addition, defendant had not slept for several days, had not been taking his " 'psych' " medication, and had been hearing voices telling him to accept the plea deal. His "Mother" told him to accept the offer, and his statement to the court that he understood his rights was "not true."
During the November 15, 2016, hearing, defendant testified he did not want to enter the plea and had said so to Panerio. According to defendant, Panerio had spoken to his great-aunt Stella Williams, who he trusted and referred to as his mother. Williams then "forced" defendant to take the deal by using their emergency code word, "Gone fishing." Defendant testified Panerio knew he was "in the hole," which the court found meant administrative segregation in jail. However, defendant failed to inform Panerio that, the day of the plea, defendant had not slept for several days, was not taking his psychiatric medication, and was hearing voices telling him to take the deal. In addition, defendant had "racing thoughts" during the plea. Defendant understood the terms of his plea, but not the rights the court explained to him. When he told Panerio he did not understand, Panerio instructed him to answer "yes" to the court's questions. Defendant never told the court he did not understand his rights, although he had told Panerio he wanted to "subpoena something pertaining to the case." Defendant discussed with Panerio the risks of going to trial versus the benefits of taking the plea offer, including the multiple life sentences he was facing. Defendant also discussed the evidence with Panerio, meeting with him more than once.
Williams testified defendant was "very agitated" when he entered his guilty plea. The day of the plea, Panerio informed Williams that defendant "did not want to take the plea," despite Panerio's opinion that it was "best for him." Williams told Panerio to inform defendant that she thought he should take the deal and to use their emergency code word. Williams testified defendant had "been in mental health" since he was four years old.
Panerio testified he had been a criminal lawyer for 37 years. He met with defendant several times and discussed the case, including the strength of the evidence, the benefits and risks of going to trial or taking a plea deal, including a possible life sentence if he did not take the deal. Panerio testified he discussed the "particulars" of the deal and they had a "mutual conversation." Panerio and defendant discussed his rights, including his right to subpoena witnesses, and defendant never said he did not understand. Based on Panerio's last conversation with defendant in the jail prior to the plea hearing, he believed defendant was "leaning" toward accepting the deal. Panerio never bullied, forced, or compelled defendant to "just accept what [he] s[aid]" or do anything. Panerio testified, "I wouldn't bulldoze [defendant]" into proceeding with the deal, even if he did not understand what was going on. The day of the plea, Panerio had no reason to be concerned that defendant had failed to take any required psychiatric medications or was in a state of mind that prevented him from giving a voluntary plea. In addition, defendant never told him he had not been sleeping or was hearing voices. Defendant was "cooperative and understood what was going on" the day of the plea.
Panerio testified he told defendant he was going to speak with Williams about the plea deal, and defendant "had no problem with that." Panerio explained the deal to Williams, including the benefits and risks. At Williams's request, Panerio told defendant a code word, and advised defendant to discuss the deal with his family. Defendant's attitude "didn't change" when Panerio relayed the code word. Defendant ultimately decided to accept the deal, and never said his mother was "making" him take the deal. Panerio testified defendant did not express any reservations about taking the deal during the plea hearing, and he was able to answer intelligently the trial court's questions. Throughout the hearing, there was nothing that led Panerio to believe defendant was not a knowing and intelligent person. In Panerio's opinion, defendant "seemed to understand what was going on" and made an "informed decision about taking the deal."
The trial court denied defendant's motion to withdraw his plea, finding there was no clear and convincing evidence that his exercise of free judgment was overcome. In issuing its ruling, the trial court stated it had a "good memory" of the plea hearing. With respect to defendant's claim that he had not slept for several days prior to his guilty plea, in the trial court's recollection, defendant had not appeared tired "at all" during the plea hearing. Moreover, defendant "appeared to be of sound mind" during his answers to all the court's questions during the plea hearing. In addition, during the hearing defendant stated he had not failed to take any medication that would affect his ability to enter into the plea deal. Although defendant was placed in administrative segregation prior to the plea, the trial court found this was not enough to establish mistake, ignorance, or another factor overcoming his exercise of free judgment during his guilty plea. The trial court also noted that it was unlikely Panerio had instructed defendant to simply answer "yes" to all the trial court's questions during the plea hearing, since defendant appropriately answered "no" to some and "yes" to others. The trial court also pointed to defendant's appropriate "no" and "yes" responses in finding that defendant understood his rights during the plea hearing.
In addition, the trial court did not find there was clear and convincing evidence defendant was hearing voices to accept the deal, other than Panerio and Williams. The trial court found there was not clear and convincing evidence defendant told Panerio he would not accept the deal, since Panerio testified he was leaning toward taking the deal during their last conversation in the jail prior to the hearing. The trial court also found there was not clear and convincing evidence defendant's exercise of free judgment was overcome by Williams or her request that he take the deal. Despite defendant's testimony that the "[g]one fishing" code word was a lever that he had to obey, there was no evidence defendant suffered from mental health issues, other than Williams's statement that he had mental health issues since age four. In addition, defendant had stated during the hearing that he was pleading guilty "freely and voluntarily." Although Williams may have encouraged him to take the deal because she thought it was in his best interests, that was "good advice."
On November 21, 2016, per the parties' agreement, the trial court sentenced defendant as follows: six years for count 12 (voluntary manslaughter) plus 20 years for the associated firearm enhancement (§ 12022.53, subd. (c)), and one year for count 7 plus three years four months for the associated firearm enhancement (§ 12022.53, subds. (b), (e)(1)). Since the parties had agreed to an aggregate term of 30 years in state prison, the trial court granted defendant additional presentence credits of 120 days, by stipulation, for a total of 594 days' credit.
Defendant filed a timely appeal and obtained a certificate of probable cause.
DISCUSSION
I
Defendant contends the trial court erred in denying his motion to withdraw his plea. He argues the trial court failed to consider the entire record in concluding that he did not have mental health issues, including hearing voices. Defendant also argues the trial court failed to consider that "a person could be competent while on medication, but not competent when he is not taking the medication." According to defendant, the trial court also erred by considering that the plea bargain was in defendant's best interests, which defendant argues is irrelevant information. In support of his contentions, defendant relies on his supporting affidavit, including his statements that he was sleep deprived, was not taking his psychiatric medication, and was hearing voices telling him to take the deal.
We review a trial court's refusal to allow a defendant to withdraw his plea for abuse of discretion. (People v. Wharton (1991) 53 Cal.3d 522, 585.) A defendant wishing to withdraw his plea must show good cause by "clear and convincing evidence." (Ibid.; see also § 1018.) "Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.]" (People v. Cruz (1974) 12 Cal.3d 562, 566.) " 'Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.' [Citation.]" (People v. Weaver (2004) 118 Cal.App.4th 131, 146.)
Substantial evidence supports the trial court's factual findings regarding defendant's ability to understand the proceedings and knowingly and voluntarily enter his plea. (See People v. Fairbank (1997) 16 Cal.4th 1223, 1254 [a reviewing court must adopt the trial court's express or implied findings if substantial evidence supports them].) Such evidence includes the trial court's own observations of defendant's demeanor, performance, and capacity during the plea hearing, including that he "appeared to be of sound mind" during his answers to all the court's questions. (See id. at p. 1254 [in determining a defendant's motion to withdraw his plea, a trial court may consider its observations of defendant during the plea hearing].) The record also reflects defendant stated during the hearing that he understood and accepted the plea agreement and the rights he was required to waive, and he was not failing to take any medication that would affect his ability to enter into the plea deal. Defendant also informed the court he was entering the plea deal "freely and voluntarily" and was not currently under the influence of alcohol, narcotics, medication, or "any other substance that would affect [his] ability to enter into this plea deal."
Although Williams vaguely stated defendant had "been in mental health" since he was four years old, Panerio testified that, the day of the plea, defendant was "cooperative and understood what was going on." In addition, Panerio had no suspicion that defendant had failed to take any required psychiatric medications, was sleep deprived, or was hearing voices. Also, the trial court had a "good memory" of the plea hearing and recalled that defendant had not appeared tired "at all" during the plea hearing. The record does not demonstrate mistake, ignorance, or overbearance of defendant's free will.
Defendant's contentions the trial court relied on irrelevant evidence fare no better. The record reflects the trial court "read and considered" the entire record, including "the moving papers, the opposition," defendant's affidavit, the plea hearing transcript, its observations of defendant during the plea hearing, and the testimony during the November 2016 hearing. The trial court addressed one-by-one defendant's statements in his affidavit, explaining how defendant had failed to establish his contentions by clear and convincing evidence. The record supports the trial court's implicit finding that defendant's self-serving statements in his affidavit were not credible, including that he was hearing voices. (People v. Hunt (1985) 174 Cal.App.3d 95, 103 [in determining the facts, the trial court is not bound by a defendant's statements, even if they are uncontradicted].) We find no abuse of discretion.
II
In a related argument, defendant contends the trial court erred in failing to order, sua sponte, a hearing to determine whether defendant was competent to plead guilty. According to defendant, his statements that he had stopped taking his medication and was hearing voices raised a reasonable doubt as to his competency, obligating the trial court to refer him for a competency evaluation.
"A defendant is incompetent to stand trial if the defendant lacks ' "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . [or] a rational as well as factual understanding of the proceedings against him." ' [Citations.] [¶] . . . The decision whether to order a competency hearing rests within the trial court's discretion, and may be disturbed upon appeal 'only where a doubt as to [mental competence] may be said to appear as a matter of law or where there is an abuse of discretion.' [Citation.] When the court is presented with 'substantial evidence of present mental incompetence,' however, the defendant is 'entitled to a section 1368 hearing as a matter of right.' [Citation.] On review, our inquiry is focused not on the subjective opinion of the trial judge, but rather on whether there was substantial evidence raising a reasonable doubt concerning the defendant's competence to stand trial." (People v. Mickel (2016) 2 Cal.5th 181, 195 (italics added); see also People v. Wharton, supra, 53 Cal.3d at pp. 584-585 [the standard for competence to stand trial applies with respect to competence to plead guilty].)
Defendant has pointed to nothing in the record establishing the trial court was presented with substantial evidence of present mental incompetence during the plea hearing or during the November 2016 hearing. Defense counsel never expressed a doubt regarding defendant's present competence at either hearing. During the plea hearing, defendant stated he understood the consequences of the plea deal and the rights he was relinquishing as a result of his plea. He never told his lawyer or the court that he was hearing voices or did not understand the rights he was waiving, and he told the trial court he had no questions regarding the plea deal or process. He also told the trial court during the plea hearing that no one had in "any way" threatened him in order to get him to enter the plea deal. Moreover, defendant presented no evidence he was suffering from mental health issues during the November 2016 hearing. We find no abuse of discretion.
III
Defendant contends the trial court imposed an unauthorized sentence with respect to the firearm enhancements (§ 12022.53, subds. (b), (c), (e)(1)), and the People concede. We agree the section 12022.53, subdivision (c) firearm enhancement imposed on count 12 (§ 192, subd. (a)) was erroneous, but defendant is estopped from challenging this sentence as unauthorized. Additionally, we do not accept the People's concession with respect to the firearm enhancement imposed on count 7.
A. Firearm Enhancement on Count 12
As the parties acknowledge, the firearm enhancement (§ 12022.53, subd. (c)) associated with count 12 (§ 192, subd. (a)) is erroneous because voluntary manslaughter is not listed as an eligible felony in section 12022.53, subdivision (a). (People v. Thang Yang (2010) 189 Cal.App.4th 148, 156 [striking a § 12022.53 enhancement because the defendant was "convicted only of voluntary manslaughter," and not an enumerated offense under § 12022.53, such as murder].)
The People argue defendant waived the issue by agreeing to the sentence, relying on People v. Hester (2000) 22 Cal.4th 290 (Hester). Defendant disagrees, arguing he should be allowed to withdraw his plea based on the unauthorized sentence.
The defendant in Hester pleaded no contest with an agreed-upon term of four years. During sentencing, the trial court imposed the four-year term and also imposed concurrent terms for other crimes. (Hester, supra, 22 Cal.4th at p. 293.) On appeal, the defendant asserted it was error under section 654 to impose the concurrent sentences. The California Supreme Court concluded defendant was estopped from challenging the unauthorized sentence under section 654, even though that was not an agreed-to part of his sentence: "Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process." (Id. at p. 295.) "Lack of fundamental jurisdiction means an entire absence of power to hear or determine the case, such as a lack of jurisdiction over the subject matter or the parties." (In re Wright (2005) 128 Cal.App.4th 663, 673.)
Here, the trial court clearly had jurisdiction over both the subject matter and the parties, and defendant does not contend otherwise. Thus, the trial court's imposition of the firearm enhancements was simply an act in excess of its jurisdiction. Similar to Hester, defendant gained the benefit of a lesser sentence (30 years) when, absent the negotiated plea deal, he faced a much longer possible sentence (indeterminate life sentence for the murder charge plus determinate terms for the other counts and enhancements). Defendant responded "[y]es" when the trial court asked if he understood the consequences of his plea, including that he would be sentenced to serve a 30 year 4 month state prison sentence (with an additional four months credit). In addition, Panerio told the trial court he had "[n]o opposition" to the proposed amendments to the firearm enhancements and murder/voluntary manslaughter charge. Since defendant received exactly the sentence he agreed to, namely 30 years in state prison, pursuant to the reasoning of Hester we will not interfere with the trial court's sentence.
Defendant's contention that his motion to withdraw his plea before sentencing distinguishes his case from Hester is unpersuasive. As explained in Hester, if a defendant is "truly surprised at the time of sentencing" to find that an unauthorized sentence is being imposed, "his remedy would have been to attempt to withdraw his plea on the grounds of violation of the plea bargain." (Hester, supra, 22 Cal.4th at p. 296.) Defendant failed to make any such objection, instead basing his motion to withdraw his plea on the contention that his "freedom of choice was overcome due to a number of factors," identifying his failure to take his " 'psych' " medication, his lack of sleep, the voices he heard in his head telling him to accept the offer, and "his Mother, whom he trusts implicitly, told him to take the offer." Accordingly, defendant is estopped from challenging any part of his sentence as unauthorized.
B. Firearm Enhancement on Count 7
Defendant contends the sentence enhancement under section 12022.53, subdivision (e)(1) was unauthorized because he never admitted any section 186.22 gang enhancement allegation. Even if defendant were not estopped from challenging any part of his sentence as unauthorized, defendant's contentions fail.
Under section 12022.53, subdivision (b), "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply." Subdivision (e)(1) provides: "The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d)."
Section 186.22, subdivision (b) provides a sentence enhancement to "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members."
Section 12022.53, subdivision (e)(1), " 'is expressly drafted to extend the enhancement for gun use in any enumerated serious felony to gang members who aid and abet that offense in furtherance of the objectives of a criminal street gang.' [Citation.] This subdivision provides a 'clear expression of legislative intent' [citation] to 'severely punish aiders and abettors to crimes by a principal armed with a gun committed in furtherance of the purposes of a criminal street gang. It has done so in recognition of the serious threats posed to the citizens of California by gang members using firearms.' " (People v. Garcia (2002) 28 Cal.4th 1166, 1172.)
Although the record reflects the section 186.22 gang enhancement was dismissed as a separate allegation, defendant admitted the elements of section 186.22 in the factual basis for his plea: "When [defendant and Duncan] did this robbery, they did the robbery for the benefit of, at the direction of, or in association with the NSGC criminal street gang and that they were both active participants in the criminal street gang at the time and they did so knowing the criminal purpose of that criminal street gang." Moreover, defendant admitted as true the section 12022.53, subdivision (e)(1) enhancement, which contains the section 186.22 gang allegation. As such, defendant admitted as true all the elements of the enhancement, including that the robbery was committed in furtherance of the gang's objectives. We conclude the section 12022.53, subdivision (e)(1) enhancement was not unauthorized.
IV
In a related argument, defendant argues both of his trial counsel rendered ineffective assistance of counsel by failing to object to the unauthorized portion of his sentence. To establish ineffective assistance of counsel, a defendant must show counsel's performance was "deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms." (People v. Mai (2013) 57 Cal.4th 986, 1009.) A defendant must also show "resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (Ibid.) On review, the "court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (Ibid.) Reversal is appropriate only if: "(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (Ibid.; see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) All other ineffective assistance of counsel claims, "are more appropriately resolved in a habeas corpus proceeding." (Mai, at p. 1009; see also Mendoza Tello, at p. 267.)
Assuming arguendo that counsels' failure to object to an unauthorized sentence was incorrect, defendant's argument is based on the supposition that counsel could have obtained a better deal from the prosecution, and the prosecution would have been willing to offer a lesser sentence. Defendant was charged with multiple felonies and enhancements, including murder, attempted murder, robbery, a prior serious felony, a prior prison term, and firearm and gang enhancements. He faced a potential indeterminate life sentence. Because defendant has failed to show it is reasonably probable that he would have received a more favorable result, no prejudice due to his counsels' performance can be demonstrated.
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Murray, J.