People v. Vailes

Decision Date15 December 2020
Docket NumberD076125
CourtCalifornia Court of Appeals Court of Appeals
PartiesTHE PEOPLE, Plaintiff and Respondent, v. MURREL WAYNE VAILES III, Defendant and Appellant.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD270590)

APPEAL from a judgment of the Superior Court of San Diego County, Steven E. Stone, Judge. Affirmed as modified.

Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters and Julie L. Garland, Assistant Attorneys General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Murrel Wayne Vailes III of robbery (Pen. Code,1 § 211; counts 1, 2, 5 and 6) assault with a semiautomatic firearm (§ 245, subd. (b); counts 3 and 4), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 7), and possession of firearm following a juvenile adjudication (§ 29820; count 8). As to counts 1, 2 and 6, the jury found Vailes was a principal armed with a firearm (§ 12022, subd. (a)(1)), that as to counts 3 and 4 he personally used a firearm (§ 12022.5, subd. (a)), and as to count 5, he personally and intentionally used a firearm (§ 12022.53, subd. (b)). In a bifurcated proceeding, the trial court found true allegations that as to each count Vailes committed all of the offenses while released from custody on bail (§ 12022.1, subd. (b)) and that he had suffered three prior strike convictions within the meaning of the "Three Strikes" law as well as one prior serious felony conviction (§§ 667, subd. (a)(1), (b)-(i), 1170.12, 1192.7, subd. (c)).

In June 2019, the court sentenced Vailes to a determinate prison term of 18 years plus an indeterminate term of life in prison with no parole eligibility for 129 years. Specifically, on count 1 it imposed 25 years to life plus a one-year firearm enhancement, five years for the serious felony conviction, and two years for the on-bail enhancement; 25 years to life plus a one-year firearm use enhancement on count 2; 27 years to life plus a four-year firearm use enhancement on each of counts 3 and 4; and 25 years to life plus a one-year firearm use enhancement on count 6. The court stayed under section 654 the punishment for the remaining counts and enhancements. It awarded Vailes four days of presentence custody credit (§ 2900.5).

On appeal, Vailes contends his statutory exclusion from early parole consideration due to his Three Strikes sentence (see § 3051, subd. (h)) as applied to him denies him equal protection of the law. He contends that if wereject his equal protection challenge, his de facto life without the possibility of parole (LWOP) sentence is cruel and/or unusual in violation of the Eighth Amendment of the United States Constitution and Article I, section 17 of the California Constitution. Vailes further contends that if his defense counsel forfeited the latter argument, he received prejudicially ineffective assistance of counsel, warranting remand for resentencing. Vailes finally argues the abstract of judgment must be corrected to reflect the trial court's section 654 stay of his count 7 sentence.

The People concede the latter point and we agree the abstract of judgment must be corrected. The People maintain Vailes forfeited the first two contentions by failing to raise them below, but in any event his recidivist sentence is not constitutionally infirm under either theory Vailes advances. We reject Vailes's constitutional challenges and as modified, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2017, Vailes committed several robberies, two of them at gunpoint and two accompanied by another perpetrator. Given the nature of his appellate claims, we need only briefly summarize the facts of the offenses.

Counts 1 and 2

On January 12, 2017, two men took a wallet, cell phones and money from A.H. and his wife after purporting to be prospective purchasers of a phone A.H. was selling. One of the men waved a black semiautomatic handgun at A.H., whose young children were with him and his wife at the time. A.H. was unable to see the men's faces clearly.

Police reviewed records of the online platform on which the sales transactions were to occur and found Vailes's accounts for them, in which he used a pseudonym.

Counts 3, 4, 5, 7 and 8

The next day, Vailes robbed J.A. and J.A.'s then-girlfriend J.K. at gunpoint, taking a pair of shoes J.A. was selling and a jacket.

J.A. and J.K. later spoke with family members about the incident, leading them to find images of Vailes on social media. J.K. befriended Vailes on Snapchat, where she and J.A. saw a photograph and video of Vailes holding the same gun used in the robbery and wearing the jacket and shoes he took from J.A.

Count 6

Two days later, Vailes snatched a cell phone, box and duffle bag from A.P. while A.P. was showing the phone to him for purposes of sale. A.P. chased after Vailes but stopped when another man with a gun jumped in front of him and pointed it at A.P.'s chest.

Post Arrest Conduct and Romero Motion

Following Vailes's arrest, an investigator listened in on over 1,000 phone calls Vailes made to family and friends. Two hours after his arrest, Vailes took part in a call regarding deleting his Facebook page. Vailes discussed deleting various photographs and using code words about purchasing an extended magazine for a firearm. Based on some of the phone calls, the investigator became concerned that Vailes was arranging to retaliate against the victims in this case.

During his sentencing hearing Vailes's counsel moved to strike Vailes's prior convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), pointing out they were committed when he was under 18 years old, and the court could still impose a lengthy sentence if all strikes were stricken. Counsel argued such relief was warranted because Vailes had never received adequate treatment for his intellectual disability and behaviorissues. Counsel sought a sentence that would allow Vailes to earn the ability to get out of custody, observing Vailes did not fire shots, there was no evidence the guns were loaded, and it was unclear in two instances whether Vailes used a gun.

The prosecutor pointed out that in jail calls Vailes had used code words to discuss firearms and gave green lights from custody in retaliation for a shooting. He argued Vailes's crimes were "extremely premeditated" and not spur-of-the-moment, but took place over several days in anticipation of using force and violence against multiple victims. The prosecutor pointed out Vailes's Facebook page showed he was a leader in the crimes and that he had been convicted of three prior robberies, so he knew the consequences but made a deliberate decision to commit more robberies with a gun. The prosecutor argued that Vailes had opportunities and warning, but "every time he escalates with violent behavior" and the only mitigation for him was his date of birth.

The court denied the motion and declined to strike any strikes "in light of the nature and circumstances of this case and [Vailes's] background." The court ruled imposition of the Three Strikes sentence was just and warranted, pointing out Vailes had committed 10 separate robberies before the current offenses, which he committed while on bail pending sentencing for his 2016 offenses. It found Vailes's current crimes were "well-planned, well-reasoned sophisticated crimes," as he found victims through the internet, created fake accounts, and lured the victims to a location to more easily rob them. The court found its sentence was "necessary to protect society, punish the defendant, deter others from criminal conduct by demonstrating consequences, and to prevent the defendant [from] committing new crime."

DISCUSSION
I. Equal Protection Claim
A. Section 3051 and Application

In 2014, the Legislature enacted laws, including section 3051, that provide a parole eligibility mechanism for juvenile offenders. (People v. Franklin (2016) 63 Cal.4th 261, 277.)2 "[S]ection 3051 . . . requires the Board [of Parole Hearings] to conduct a 'youth offender parole hearing' during the 15th, 20th, or 25th year of a juvenile offender's incarceration. [Citation.] The date of the hearing depends on the offender's '[c]ontrolling offense,' which is defined as 'the offense or enhancement for which any sentencing court imposed the longest term of imprisonment.' [Citation.] A juvenile offender whose controlling offense carries a term of 25 years to life or greater is 'eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing, unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions.' [Citation.] The statute excludes several categories of juvenile offenders from eligibility for a youth offender parole hearing: those who are sentenced under the Three Strikes law [citation] or Jessica's Law[citation], those who are sentenced to life without parole, and those who commit another crime 'subsequent to attaining 23 years of age . . . for which malice aforethought is a necessary element of the crime or for which the individual is sentenced to life in prison.' " (Franklin, at pp. 277-278.)

"Section 3051 thus reflects the Legislature's judgment that 25 years is the maximum amount of time that a juvenile offender may serve before becoming eligible for parole. Apart from the categories of offenders expressly excluded by the statute, section 3051 provides all juvenile offenders with a parole hearing during or before their 25th year of incarceration. The statute...

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