IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Butte
April 15, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DAVID JACOB JONES, DEFENDANT AND APPELLANT.
Super. Ct. Nos. CM031884, CM031911
The opinion of the court was delivered by: Robie , Acting P.J.
P. v. Jones CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant David Jacob Jones appeals the sentence imposed following his plea of no contest to first degree robbery and two counts of false imprisonment. He contends the trial court improperly ran the two false imprisonment counts consecutively and that the trial court abused its discretion in failing to order a diagnostic study under Penal Code*fn1 section 1203.03. We affirm.*fn2
On April 7, 2009, defendant and an accomplice, Cameron, committed a home invasion robbery. Defendant had been selling marijuana and owed his supplier money. Believing that the victims, Ashton Khanchandani and Tyler Uecker, also sold marijuana, defendant thought they would have cash in their home. Either defendant or Cameron had a crowbar and stated he had a gun in his backpack.*fn4 Defendant and Cameron bound the victims with zip ties, took them to the bathroom, and forced each of them to take a pill. They stole $1,000 from the house safe, one-eighth of an ounce of marijuana, televisions, laptops, both vehicles and a puppy that belonged to one of the victims. Defendant was later found in possession of the laptop, television, and puppy. He admitted he and Cameron had committed the robbery. He claimed Cameron had used the crowbar and bound the victims. He denied knowing about the drugs given to the victims, claiming that Cameron had probably done that, because "Cameron always took pills and probably had something on him at that time." Later, he said Cameron had given the victims "Seroquel, which was a sleeping pill he had a prescription for."
On November 30, 2009, defendant again needed money to pay off his drug supplier, so he planned another robbery. Because Richard Ellison lived in a large home, defendant assumed he would be wealthy. Defendant waited outside Ellison's home in the early morning. When Ellison came out of his garage, defendant pointed a gun at him, demanded money, and ordered him to the ground. The gun was an airsoft gun, but Ellison did not consider the possibility the gun was not real. Thinking he was going to be killed by defendant, Ellison was "[a]s frightened as [he had] ever been in [his] life." When Ellison fled from the garage, defendant went into the home and stole a watch, keys, and a wallet. Defendant admitted robbing Ellison.
Regarding the November 30, 2009, robbery, defendant was charged with first degree residential robbery with an enhancement allegation of personal use of a deadly weapon, and making criminal threats. It was further alleged defendant had a prior strike conviction. In a separate complaint, defendant was charged with first degree residential robbery and two counts of kidnapping. The complaint further alleged defendant had a prior strike conviction. Two counts of false imprisonment were later added.
As part of a negotiated plea to the robbery and two false imprisonment counts, defendant agreed the aggregate maximum sentence that could be imposed was seven years and four months.
Defendant requested the court order a diagnostic evaluation under section 1203.03. Counsel argued defendant should be evaluated "to see whether there was any psychological factor that contributed to his conduct. We also would get an evaluation by counselors as to whether or not there's anything that we can do for him on probation." The court denied the request for a diagnostic evaluation, stating "[i]f I thought we'd get something valuable from it, I would not hesitate to do it."
The court then sentenced defendant to an aggregate term of seven years and four months, consisting of the upper term of six years for robbery and two consecutive eight-month terms, one-third of the midterm, for the false imprisonment charges. In imposing the upper term for the robbery conviction, the court noted the crime involved great violence, great bodily injury or threat of great bodily injury, and defendant used or was armed with a weapon. The court found the victim was particularly vulnerable and the crime was premeditated. The court also noted defendant's prior juvenile record was an aggravating circumstance. The court ordered the two false imprisonment convictions to run consecutively with the robbery conviction as they involved separate acts of violence and were committed at different times and in separate locations. The court also ordered the two false imprisonment counts to run consecutively to each other because those crimes involved multiple victims. The court ordered victim restitution and various fines and fees were imposed. Defendant did not obtain a certificate of probable cause.
I Consecutive Sentences
Defendant contends the trial court improperly ran the two false imprisonment sentences consecutively because the aggravating factors did not support a consecutive sentence. He contends the trial court improperly relied on the finding that there were multiple victims of the false imprisonment convictions because there was only one victim per false imprisonment conviction.*fn5
Although he does not cite the case, defendant relies on the reasoning underlying our decision in People v. Humphrey (1982) 138 Cal.App.3d 881. In Humphrey, we concluded that the fact that there are multiple victims can only be used to impose consecutive sentences when a defendant commits two or more crimes, and at least one of those crimes has multiple victims. (Humphrey, at p. 882.) The Supreme Court has since rejected that conclusion. (People v. Calhoun (2007) 40 Cal.4th 398, 405-408.) Although the Calhoun case arose in the context of interpreting aggravating factors to impose an upper term sentence, it also referenced the use of multiple victims in selecting a consecutive sentence. The Supreme Court engaged in a thorough analysis of the issue and determined that multiple victims, one per count, may be used to impose either an aggravated or consecutive term. Under the reasoning of Calhoun, the fact of multiple victims, even where there is only one victim per count, is a valid circumstance in determining whether to impose consecutive or concurrent terms. (Ibid.) Thus we see no error in the trial court's considerations.
Furthermore, under the Supreme Court's decisions in People v. Cuevas (2008) 44 Cal.4th 374 and People v. Shelton (2006) 37 Cal.4th 759, we find defendant was required to obtain a certificate of probable cause to challenge this sentence.
In Shelton, the court explained: "[T]he specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term." (People v. Shelton, supra, 37 Cal.4th at p. 768.) The Supreme Court has made clear that: "(1) a challenge to the court's authority to impose an agreed upon maximum sentence is a challenge to the validity of the plea requiring a certificate of probable cause, but (2) a challenge to the trial court's exercise of individualized sentencing discretion within an agreed maximum sentence does not require a certificate of probable cause because it does not challenge the trial court's authority to impose the upper term, i.e., it does not attack the validity of the plea agreement but instead attacks the court's exercise of discretion permitted by the agreement." (People v. Rushing (2008) 168 Cal.App.4th 354, 359-360.)
Defendant attempts to bring his claim within this second part of the rule, which does not require a certificate of probable cause, claiming he is not challenging the court's authority to impose the maximum sentence, but rather arguing that the court "abused its discretion by failing to follow the sentencing rules." In this case, that is a distinction without a difference. "[A] claim challenges the trial court's authority if a successful appeal would preclude the trial court from imposing on remand the maximum term reached in the plea bargain." (People v. Rushing, supra, 168 Cal.App.4th at pp. 361-362.)
Here, the sentencing triad for first degree robbery is 3, 4, and 6 years (§§ 211, 213) and the sentencing triad for false imprisonment is 16 months, 2 years and 3 years (§§ 236, 18). There is no legal way to impose a sentence of seven years and four months other than what the court did here -- impose the upper term for the robbery count and two eight-month terms (one-third the midterm) for the false imprisonment counts -- all to run consecutively. Because this is the only way to reach the sentence that defendant agreed was the maximum possible sentence, were we to reverse, the court would be precluded from imposing the maximum term agreed to in the plea. In asserting that the court "abused its discretion" by "impos[ing] consecutive sentences for the false imprisonment convictions," "defendant is not challenging the court's exercise of sentencing discretion, but attacking its authority to impose consecutive terms for these counts. This amounts to a challenge to the plea's validity, requiring a certificate of probable cause, which defendant failed to secure. [Citations.]" (People v. Cuevas, supra, 44 Cal.4th at p. 384.) Accordingly, this portion of defendant's appeal of his sentence is dismissed for failure to obtain a certificate of probable cause.
II Diagnostic Evaluation
Defendant next contends the trial court abused its discretion in refusing to order a diagnostic evaluation under section 1203.03. He is wrong.
At the time of sentencing, defendant acknowledged his case was not one in which probation could be granted absent a finding of "unusual circumstances," and requested that the court order an evaluation pursuant to section 1203.03. Under section 1203.03, subdivision (a), if the court "concludes that a just disposition of the case requires such diagnosis and treatment services as can be provided at a diagnostic facility of the Department of Corrections, [it] may order that defendant be placed temporarily in such facility for a period not to exceed 90 days . . . ."
"'The sentencing court abuses its discretion in ruling on a particular matter only where such ruling exceeds the bounds of reason.' [Citations.] 'The fact that a trial judge uses his discretion in a manner different from that requested or suggested, does not mean that the trial judge has abused his discretion.' [Citations.]" (People v. Myers (1984) 157 Cal.App.3d 1162, 1169.)
Defendant argues there "appears to have been compelling reason to refer" defendant for evaluation, as there was evidence he suffered from mental illness, based on his having been prescribed Seroquel; his behavior prior to the November 2009 robbery which consisted of sitting across the street, staring and then suddenly bursting into the garage; and, a description of him "as a confused person who was seeking and needed help."
Of note, at sentencing, defendant did not argue that he suffered any drug addiction or psychiatric illness. Rather, he made a generalized claim that an evaluation might help in determining the factors contributing to his behavior. This is not a reason for obtaining an evaluation under section 1203.03 In any event, the record does not support the conclusion that defendant suffered from either psychiatric illness or drug addiction. Contrary to defendant's argument on appeal that he had been prescribed Seroquel, the record indicates the Seroquel was not his prescription, but rather it was Cameron's. Although it appears defendant was selling drugs, he denied any significant drug or alcohol use himself. He admitted smoking one joint a month until April 2009 when he quit smoking, denied use of any other controlled substances or any alcoholic beverages, and denied having a drug problem. Defendant's statement does not mention drug use or suggest psychiatric illness. Rather, it shows both robberies were committed because he needed money to pay his debt.
The court read and considered the probation officer's report, heard from a former youth authority officer on defendant's behalf, and heard argument from counsel on the issue of a section 1203.03 evaluation. The court noted defendant's crimes were violent, committed for the purpose of paying off his drug "wholesaler," and defendant had "repeatedly committed crimes," including a burglary as a juvenile. There was nothing in the record indicating the court needed additional information to reach a just disposition in this case. There was no abuse of discretion in denying defendant a diagnostic evaluation under section 1203.03.
The judgment is affirmed.
We concur: BUTZ ,J. DUARTE ,J.