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People v. Nitschmann

March 3, 2010


(Super. Ct. No. 2008015324) (Ventura County). Patricia M. Murphy, Judge.

The opinion of the court was delivered by: Yegan, J.


Fifteen years ago we said: "Ralph Helmut Nitschmann has lead a life of crime." (People v. Nitschmann (1995) 35 Cal.App.4th 677, 679.) Nothing has changed except the victim's name and appellant's good fortune at the "early disposition calendar." His trial attorney succeeded in negotiating a five year sentence before preliminary hearing and without a probation report.

When the trial court has sufficient information to make an informed judicial decision, an "early disposition calendar" is beneficial to the parties and the court.

It is ironic that appellant seeks to either withdraw from the negotiated disposition (according to his statement in support of a certificate of probable cause) or he seeks a lesser sentence as argued by newly retained counsel. As we shall explain, appellant is entitled to no relief and we affirm the judgment. Facts and Procedural History

On April 14, 2008, appellant allowed Ann M. to stay at his motel room. Appellant gave her $70 to purchase methamphetamine for him. Ann left and did not return. Appellant found Ann, argued with her, and punched her in the face several times. She suffered extensive injuries to her upper lip and nasal cavity which required more than 20 sutures. She said that appellant punched her because of a bad drug deal. Appellant told the police that he "only hit her a couple of times" and lost control of himself because she took his money.

As indicated, trial counsel negotiated a change of plea in which appellant waived preliminary hearing and referral to the probation department. Appellant pled guilty to assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)),*fn1 admitted the great bodily injury enhancement (§ 12022.7, subd. (e)), and acknowledged that he could be sentenced to a maximum of 18 years state prison. This was his agreement with the People. The trial court went further. It told appellant's attorney that the sentence would be five years. The prosecutor asked appellant, in open court, ". . . the commitment of five years has been made to you but no other commitments other than that have been made?" Appellant said, "yes." The trial court struck the prior allegation, denied probation, and immediately sentenced appellant to a two-year low term plus three years on the great bodily injury enhancement.


Appellant argues that his case should be remanded for resentencing because he was not advised of and did not waive his right to allocution. Section 1200 provides in pertinent part: "When the defendant appears for judgment he must be informed by the court, or by the clerk, under its direction, of the nature of the charge against him and of his plea, . . . and must be asked whether he has any legal cause to show why judgment should not be pronounced against him." (See In re Shannon B. (1994) 22 Cal.App.4th 1235, 1246 [section 1200 codifies common-law right of allocution].)

Section 1204, however, requires that a defendant making a mitigation statement do so under oath, subject to cross-examination. (People v. Evans (2008) 44 Cal.4th 590, 599.) The right is forfeited if the defendant does not offer to testify before pronouncement of sentence. (Id., at p. 600.) "[N]o court has held that in a non-capital case a trial court must, on its own initiative, offer the defendant allocution." (People v. Lucero (2000) 23 Cal.4th 692, 718.)

Here, the trial court found that the change of plea was knowingly and intelligently made, and admonished appellant that he had the right to have the probation department "conduct an investigation into the circumstances of the offense, into your background, into your social history, your work history, anything that might be relevant to the court in deciding the sentence in this case."

Appellant did not want a probation report. He said: "I'm getting five years. . . . That was the deal." The fair and only import of this statement is that appellant plead guilty for an actual sentence of five years and not for sentence vulnerability (i.e. a "cap") of five years. Thus, trial counsel did not argue for less than five years. The trial court did not ask if appellant had legal cause to show why judgment should not be pronounced, but the error was harmless. (§ 1200; see People v. Ornelas (2005) 134 Cal.App.4th 485, 488-489.) Appellant's written 16 page plea agreement and waiver of constitutional rights coupled with a 10 page oral colloquy with the prosecutor and trial court clearly shows that he understood the negotiated disposition and wanted an immediate sentence. Counsel did not attempt to call appellant to testify nor did appellant say that he wanted to address the court on sentencing. In these circumstances, there was a forfeiture of defendant's right to testify in mitigation of punishment and an implied waiver of any right to personally address the court on sentencing. (People v. Evans, supra, 44 Cal.4th at pp. 599-600.)

No where in the written negotiated plea agreement; the colloquy between appellant, the prosecutor and the trial court; or in the record on appeal is there any mention of the possibility of less than a five year term. " 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' ...

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