People v. Cole

• Decision Date: 20 April 2001
• Docket Number: No. B141257.,B141257.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ervin Eugene COLE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

106 Cal.Rptr.2d 174

88 Cal.App.4th 850

The PEOPLE, Plaintiff and Respondent, v. Ervin Eugene COLE, Defendant and Appellant.

No. B141257.

Court of Appeal, Second District, Division 5.

April 20, 2001.

As Modified May 4, 2001.

Review Denied July 25, 2001.^*

Thomas A. Schaaf, under appointment by the Court of Appeal, El Cerrito, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.

WILLHITE, J.^**

Defendant Ervin Eugene Cole seeks to appeal from a judgment of conviction entered after a no contest plea to three felony counts. He also admitted two prior serious or violent felony convictions under the Three Strikes Law and three prior prison terms. With the concurrence of the prosecutor, the superior court represented that it would not sentence him to more than 25 years to life. Further, it would consider striking one or more of his prior serious or violent felony convictions. After a separate hearing, the court declined to strike either of his prior Three Strikes convictions, and sentenced defendant to 25 years to life. Defendant filed a notice of appeal purporting to raise only issues occurring after entry of the plea. (See Cal. Rules of Court, rule 31(d).) He did not secure a certificate of probable cause. (See Pen.Code, § 1237.5; Cal. Rules of Court, rule 31(d).)¹

On appeal, he raises four claims: (1) he must be allowed to withdraw his plea, because it was "manifestly influenced" by the superior court's promise to consider striking one or more of his prior serious or violent felony convictions; (2) his sentence of 25 years to life constitutes cruel and unusual punishment; (3) the superior court abused its discretion by failing to strike one of defendant's prior serious or violent felony convictions; and, (4) the trial court erred in imposing concurrent sentences on two counts rather than staying them pursuant to Penal Code section 654.

We conclude that defendant's first two claims cannot be raised without a certificate of probable cause. Further, we conclude that his fourth claim is barred by rule 4.412(b). However, considering an issue left undecided in People v. Young (2000) 77 Cal.App.4th 827, 91 Cal.Rptr.2d 916, we find his third claim—that the court abused its discretion by failing to strike one of defendant's prior Three Strikes convictions—may be raised without a probable cause certificate. Considering that claim on its merits, we find that the trial court did not err.²

PROCEDURAL HISTORY

An information charged defendant with three counts: felony evading (count 1; Veh.Code, § 2800.2, subd. (a)); unlawful driving or taking of a vehicle (count 2; Veh.Code, § 10851, subd. (a)), and felony hit and run driving (count 3; Veh.Code, § 20001, subd. (a)). The information also alleged two prior serious or violent felony convictions under the Three Strikes Law (Pen.Code, §§ 1170.12, subds.(a)-(d), 667, subds. (b)-(i)), namely, robbery with use of a firearm, and assault with a deadly weapon. The information further alleged three prior prison terms (Pen.Code, § 667.5, subd. (b)).

Defendant initially pled not guilty to all counts and denied the prior convictions. Following various pretrial proceedings, the case was sent out for trial. In the trial court, after recess on the first day of jury selection, the trial court stated outside the presence of the jurors that a trial management conference had been held in chambers. The court asked defense counsel if defendant was contemplating changing his plea. Defense counsel replied: "We had a rather extensive conversation about that during the break. And I think that he wanted to speak with his new wife and think about it overnight." The court stated that it would like an answer at 10:30 the next morning, and recessed the proceedings.

The next morning, the trial court asked defense counsel if there was a disposition. The following proceedings then occurred:

"[Defense counsel]: Well, in a way. [¶] Mr. Cole has decided to plead open to all charges and admit all special allegations to the court, and we're asking that sentencing on this matter be put over for a certain period of time.

"The Court: Mr. Cole, I am satisfied from my discussions with the two attorneys that the ... crimes charged against you all arise from the same side [sic ] of the operative facts. So the maximum punishment the court would otherwise be prepared to impose would be a sentence of 25 years to life, plus an additional term for the ... priors alleged pursuant to section 667.5(b) unless the People are willing to strike those. [¶] Other than that, I made no promises whatsoever, representations to your lawyer as to what the sentence will be. [¶] Do you understand that?

"The Defendant: Yes.

"The Court: Do you still wish to change your plea at this time?

"The Defendant: No.

"Defense Counsel: No? [¶] You want to go to trial?

"The Defendant: No. [¶] Was I supposed to say `yes'?

"The Court: This isn't a script here, Mr. Cole.

"The Defendant: I thought I was answering you right.

"The Court: I want you to understand I haven't told your lawyer what the sentence is going to be. It's entirely up to me, and I'm going to wait until I have some more information about you. [¶] I may decide to strike one or more of these strikes. I may decide not to. I don't have complete discretion. My discretion is pretty limited. It's based upon an evaluation of what is called your background, character, and prospects. [¶] So your lawyer is going to have to convince me that I [should] strike one or more of these strikes; but if he does, then I will. But otherwise, it's going to be 25 to life. [¶] Do you understand that?

"The Defendant: Yes.

"The Court: Do you still want to change your plea? Do you still want to change your plea of not guilty to guilty or no contest?

"The Defendant: Yes. Yes. Yes."

The prosecutor then advised defendant of his rights and the consequences of the proposed disposition. The prosecutor stated that this was an "open" plea, meaning that defendant would admit all charges and allegations, and that the maximum possible sentence was 25 years to life. Defendant affirmed that he understood. Defendant pled no contest to all charges, and admitted the priors allegations. Defendant also initialed, signed, and filed with the court a written plea form. It reflected that the maximum possible punishment for the three charged counts was 75 years to life, and described the disposition as an "open plea to court—no promises made."

At defendant's request, the court continued the sentencing hearing for approximately three months. In the interim, defendant filed a written motion, with supporting points and authorities and exhibits, requesting that one or more prior serious felony convictions be stricken. At the sentencing hearing, the court stated that it had read and considered defendant's written motion, and the probation report. The court heard argument from both counsel. Also, on defendant's behalf, the court heard from the victim of defendant's prior conviction of assault with a deadly weapon, and reviewed the probation report from that prior crime. Defendant and his mother also addressed the court. Ultimately, the court declined to exercise its discretion to strike any of the prior Three Strikes convictions. The court sentenced defendant to 25 years to life on each count, to be served concurrently. It struck the three prior prison terms.

Defendant filed a notice of appeal in which he purported to raise "only matters occurring after the entry of the plea which do not challenge the validity of the plea, to wit, abuse of discretion in Court's failure to strike priors pursuant to Penal Code section 1385 and [People v. Superior Court (Romero) (1996) 13 Cal.4th 497][53 Cal. Rptr.2d 789, 917 P.2d 628]." He did not secure a certificate of probable cause.

STATEMENT OF FACTS

Because we reach the merits of defendant's contention that the trial court abused its discretion in not striking one of his prior Three Strikes convictions, we briefly summarize the evidence underlying the current charges. Our summary is based on the preliminary hearing transcript, and is stated in the light most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1204, 26 Cal.Rptr.2d 23, 864 P.2d 103.)

On February 21,1999, Hawthorne Police Officer Michael Shimkus observed defendant driving an Infiniti automobile. The car belonged to two persons, Dolores Nunley and her mother, who did not know defendant and did not give him permission to drive their vehicle. Officer Shimkus followed the Infiniti and activated his lights and siren. Defendant accelerated rapidly on Hawthorne Boulevard, swerving in and out of traffic. He ran a red light, and turned onto 120th Street, then onto Birch Avenue, a residential street. Defendant's speed reached more than 85 miles per hour. Defendant ran three stop signs on Birch, and turned onto Imperial Highway. At a speed of about 45 miles per hour, he swerved into opposing lanes of traffic. At the intersection of Imperial Highway and Freeman, he ran another red light, nearly colliding with several cars. Attempting to turn onto Prairie, defendant collided with another car. The Infiniti spun out of control and rolled over. Defendant fled on foot. He left his passenger, Darlene Wallace, in the vehicle. She had suffered injuries to her back and leg. The driver of the vehicle with which defendant collided was also injured, and later received medical treatment for cervical and lumbar strain. Officer Shimkus pursued defendant, and took him into custody by tackling him.

DISCUSSION

A. The Terms of Defendant's Plea

Although the prosecutor loosely referred to the disposition as an open plea, as did the written waiver form, in reality the plea was not truly "open."...