People v. Masten

• Decision Date: 22 November 1982
• Docket Number: Cr. 22704
• Citation: 137 Cal.App.3d 579,187 Cal.Rptr. 515
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Henry Ray MASTEN and Freddie James Matilton, Defendants and Appellants.

Page 515

187 Cal.Rptr. 515

137 Cal.App.3d 579

The PEOPLE of the State of California, Plaintiff and Respondent, v. Henry Ray MASTEN and Freddie James Matilton, Defendants and Appellants.

Cr. 22704.

Court of Appeal, First District, Division 2, California.

Nov. 22, 1982.

Theodore Winchester, San Francisco, for defendant and appellant matilton.

Quin Denvir, State Public Defender, Deborah Long, Deputy State Public Defender, San Francisco, for defendant and appellant Masten.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief, Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., Thomas A. Brady, Eugene W. Kaster, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

MILLER, Associate Justice.

Appellants Henry Ray Masten and Freddie James Matilton were each charged by information with one count of kidnapping, rape, oral copulation, and two counts of assault with a deadly weapon. (Pen.Code, §§ 207, 261; 288a, subd. (c); 245, subd. (a).) Each count alleged that Matilton used and Masten was armed with a firearm. (Pen.Code, §§ 12022.5; 12022, subd. (a).)

Appellant Matilton pleaded guilty to one count of kidnapping, one count of assault and being armed with a deadly weapon. He was sentenced to 10 years in state prison.

A jury convicted appellant Masten of rape, oral copulation and kidnapping. The latter conviction was enhanced due to a finding that Masten was armed with a firearm. His sentence totalled 17 years and 8 months.

Both Matilton and Masten appeal.

The record shows that on the evening of October 29, 1980, Helena M. and her husband Tito drove the short distance from their home to a spot on the banks of the Trinity River. After approximately a half hour, they attempted to leave but discovered that their car would not start.

Shortly thereafter, Tito fell asleep and Helena began walking toward their home to get help. On the road, she flagged down a pickup truck being driven by appellant Masten. Helena did not then know Masten, but she had previously seen appellant Matilton, who was riding in the passenger side of the truck. Helena asked them for a "jump" for her battery and they drove her back to the car. She was unable to find her jumper cables, however, and Masten and Matilton left.

Helena and her husband then decided to go to their home to get some blankets and return to spend the night in the car to protect it from vandalism. When they arrived back at their car, the trunk was open and several items were missing. They locked the doors of the car and went to sleep.

Some time later, they were awakened by the sound of a motor. Masten and Matilton, who had returned in Masten's pickup, walked up to the car. Matilton asked Tito if he had any dope. Matilton then opened the door, grabbed Tito and pointed a gun at him. A shot was fired, shattering the car window. Although unhurt, Tito slumped forward onto the dashboard. Helena thought that her husband had been shot. Matilton then fired a second shot in her direction, and Masten said, "Let's take her."

Helena accompanied appellants to their truck and was compelled to enter. They drove for a short time and then stopped. Masten got out, taking Helena with him and said to Matilton, "Well, you know where the piece is." Helena understood this to refer to the gun.

Masten took Helena about 100 feet from the truck, threw down his sweatshirt and told Helena to lay on it. He fondled her breasts and thighs and indicated that he was going to have sex with her. They then engaged in an act of sexual intercourse and Masten orally copulated her.

When these acts were completed Masten and Helena dressed and returned to the truck where Matilton was waiting. After they drove off Masten told Helena, "If you think we are going to take you home, you're wrong." At this point, Masten lost control of the vehicle and drove it off the road.

In the aftermath of the accident, a friend of Masten's drove by, stopped and agreed to take Helena to the hospital. Soon after, the police, having been notified by Tito and Helena, took the appellants into custody.

Appellant Matilton's Contentions

Appellant Matilton first contends that he was inadequately represented by counsel during the plea-bargaining phase of the proceedings. We cannot consider the merits of this argument, since Matilton has not complied with Penal Code section 1237.5. ¹ When a conviction results from a plea of guilty, appellate review is precluded unless the appellant files a statement with the trial court showing grounds for review, and obtains a certificate of probable cause from the court. Since appellant asserts that he was ineffectively represented, he is challenging his conviction. (See People v. Santos (1976) 60 Cal.App.3d 372, 376, 131 Cal.Rptr. 426.) This he cannot do unless he complies with the procedural requirements of section 1237.5.

However, an appellant is not required to comply with section 1237.5 when he asserts that errors occurred in proceedings held subsequent to a guilty plea. (People v. Kaanehe (1977) 19 Cal.3d 1, 8, 136 Cal.Rptr. 409, 559 P.2d 1028.) Therefore, we turn to Matilton's arguments that the court erroneously sentenced him to consecutive terms for the kidnapping and the assault with a deadly weapon convictions.

Appellant Matilton argues that pursuant to section 654 he may not be sentenced to consecutive terms for offenses which comprise a single course of conduct. Alternatively, appellant contends that the sentencing court misapplied the criteria set forth under rule 425 of the California Rules of Court, and that concurrent rather than consecutive sentences should have been imposed. Appellant's contentions cannot be sustained in the context of a plea bargain.

Ordinarily, multiple sentences imposed in contravention of section 654 are beyond the power of the court. (In re Wright (1967) 65 Cal.2d 650, 655, 422 P.2d 998; People v. Isenor (1971) 17 Cal.App.3d 324, 336, 94 Cal.Rptr. 746.) The purpose of that section is to prevent harassment of a defendant by cumulative sentencing not commensurate to actual culpability. (People v. Jones (1981) 124 Cal.App.3d 749, 754, 177 Cal.Rptr. 605.) An accused will not be deemed "harassed" under section 654 when the claimed harassment results from his own conduct. (In re Troglin (1975) 51 Cal.App.3d 434, 439, 124 Cal.Rptr. 234.) Thus, in the context of a plea bargain, the imposition of consecutive sentences is not violative of section 654. (People v. Jones, supra, 124 Cal.App.3d 749, 754-755, 177 Cal.Rptr. 605; In re Troglin, supra, 51 Cal.App.3d 434, 438-439, 124 Cal.Rptr. 234.) As the People are held strictly to the terms of the plea bargain, the accused also must be held to his agreement. (Ibid.)

Here, appellant Matilton pled guilty to kidnap, a charge enhanced by a use allegation, and assault with a deadly weapon. As part of the plea bargain, charges of rape, oral copulation and a further count of assault with a deadly weapon were dropped. The 10-year sentence he received was substantially lower than the sentence to which he would otherwise have been exposed. Appellant was informed by the trial court that he could be sent to prison for an aggregate of 10 years as a result of the guilty pleas and he indicated that he understood. Thus, he is bound to accept the sentence he agreed to, just as the People must keep their part of the bargain.

Appellant Masten's Contentions

Appellant Masten first argues that the failure of the trial court to give CALJIC No. 2.01, ² which explains the application of circumstantial evidence in determining guilt, was an abuse of discretion requiring reversal. Since Masten testified that he believed that Helena had accompanied him willingly and consented to the sexual acts, he contends that any evidence probative of his state of mind was necessarily circumstantial, and required a reading of CALJIC 2.01. The trial court, finding the evidence to be non-circumstantial in nature, refused to give the proffered instruction.

The duty to instruct on circumstantial evidence arises only when such evidence is substantially relied upon for proof of guilt. (People v. Yrigoyen (1955) 45 Cal.2d 46, 49, 286 P.2d 1.) In Yrigoyen, the court held that the failure to give a cautionary instruction constituted reversible error "where criminal knowledge is shown only by circumstantial evidence." (Id., at pp. 49-50, 286 P.2d 1, emphasis added.) However, when circumstantial evidence is only corroborative of direct evidence, or of an incidental nature, the cautionary instruction need not be given. (Id., at p. 50, 286 P.2d 1; People v. Butler (1980) 104 Cal.App.3d 868, 877, 162 Cal.Rptr. 913; People v. Salas (1976) 58 Cal.App.3d 460, 473, 129 Cal.Rptr. 871.) Even where circumstantial evidence is strong, the prosecution is not precluded from substantial reliance on direct evidence for proof of guilt. (People v. Butler, supra, 104 Cal.App.3d 868, 878, 162 Cal.Rptr. 913.)

Thus, the need to give CALJIC 2.01 is not triggered merely by the prosecution's use of circumstantial evidence from which the jury might draw inferences as to the defendant's criminal intent or conduct. As our Supreme Court has stated: "The fact that the elements of a charged offense include mental elements that must necessarily be proved by inferences drawn from circumstantial evidence does not alone require an instruction on the effect to be given such evidence .... The contrary is usually the rule." (People v. Wiley (1976) 18 Cal.3d 162, 175, 133 Cal.Rptr. 135.) A judgment will be upheld so long as the prosecution relied primarily on direct evidence, that is, evidence that directly proves a fact, without inference or presumption, and which in itself, if true, conclusively establishes that fact. (Evid.Code, § 410.)

In the instant case, the focus of our inquiry is on the extent of the prosecution's substantial reliance on circumstantial as opposed to direct evidence. The prosecution's case centered on the testimony of Helena and her husband...