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People v. Simmons

California Court of Appeals, First District, First Division

February 5, 2015

THE PEOPLE, Plaintiff and Respondent,
ROMIER SIMMONS et al., Defendants and Appellants.

[As modified Feb. 19, 2015.]

Alameda Superior Court County, No. C166214-A & B, Honorable Morris D. Jacobson

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Jeffrey A. Glick, under appointment bye the Court of Appeal, for Defendant and Appellant Romier Simmons.

Linda M. Leavitt, under appointment by the Court of Appeal, for Defendant and Appellant Christopher Malbrough.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Eric D. Share and Catherine A. Rivlin, Deputy Attorneys General, for Plaintiff and Respondent.



Appellants Christopher Malbrough and Romier Simmons were convicted of numerous crimes in connection with a series of home robberies, and the trial court sentenced them both to life in prison. On appeal,

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they contend we must (1) reinstate a package plea agreement that the trial court withdrew after Malbrough asked for it to be withdrawn and (2) reverse their convictions for aggravated kidnapping based on insufficient evidence and instructional error. We reject these contentions, but we accept the parties’ agreement that the matter should be remanded to the trial court to strike certain fines. We also direct the trial court to hold a court trial on the prior-strike allegations against Malbrough. The judgments otherwise are affirmed.


Factual and Procedural Background

Malbrough and Simmons were arrested and charged in connection with 12 Oakland home-invasion robberies that took place between August 2 and November 24, 2010. The men would enter homes with guns drawn and rob the occupants of their money, jewelry, cell phones and other electronics.

Malbrough and Simmons initially agreed to plead no contest to various charges under a package plea agreement. The trial court, however, withdrew the agreement after Malbrough said he felt pressured into accepting the deal. A subsequent jury trial was held, and the jury convicted Malbrough and Simmons of dozens of felonies.[1] The convictions Malbrough and Simmons challenge on appeal involve kidnapping for the purpose of robbery under

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section 209, subdivision (b)(1) (aggravated kidnapping). Malbrough was sentenced to an indeterminate term of 19 years to life, plus a determinate term of 102 years. Simmons was sentenced to an indeterminate term of 14 years to life, plus a determinate term of 114 years.



A. The Trial Court Did Not Err in Granting Malbrough’s Motion to Withdraw from a Package Plea Agreement.

Malbrough and Simmons first argue that the trial court improperly withdrew a package plea agreement after Malbrough specifically asked the trial court for that relief. We are not persuaded.

1. Background

In August 2011, Malbrough and Simmons both pleaded no contest to 19 felony counts (one for each victimized family) in exchange for 26 years in state prison as part of a package plea agreement. The plea agreement was the result of settlement discussions among the parties and the trial judge that took place on “a number of dates.” Simmons expressed some misgivings before entering his plea, stating it was a “very hard decision” and that, although he agreed to the plea deal freely and voluntarily, he was “battling within [him]self.” After he remarked to the trial court he “[c]ould have had a little bit more time” to discuss the agreement with his attorney, the trial court called a recess so that Simmons could do so. After a recess of about an hour and 40 minutes, Simmons confirmed he had had enough time to talk with his attorney. Both Simmons and Malbrough were questioned about whether they had any further questions about the plea agreement and whether they understood all the rights they were giving up in exchange for the agreed-upon sentence, and they both confirmed they understood the terms of the plea agreement before they entered their pleas. The judge found that both Simmons and Malbrough knew what they were doing and understood the consequences of their actions. After accepting both defendants’ pleas, the trial court referred the matter to the probation department to prepare presentence reports.

At the beginning of the sentencing hearing, which was held about a month later, Simmons’s attorney informed the trial court that Simmons wanted to

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withdraw his plea because there was “newly discovered evidence” other people were involved in the crimes and because a codefendant pressured Simmons to enter a plea. The court scheduled another hearing for a few weeks later so Simmons’s attorney could look into the possible withdrawal.

When the parties reconvened in late October, Simmons’s attorney reported that Simmons no longer wanted to withdraw his plea. The trial court then had a lengthy discussion with Simmons to confirm that he was not pressured to enter into the plea agreement and that he wanted to proceed with sentencing. Malbrough then asked to address the court about his own desire to withdraw his plea, stating, “I just been thinking, your Honor, and I was thinking in my cell, and I was like 26 years? I know it sounds like a good deal for the Court, because they don’t have to do it. But just it’s a long time.” He also stated that he had been accepted to a program at Delancey Street and was “asking for a chance at that program to get my life together while I’m young, try to do a change.” Malbrough’s attorney told the court he had informed his client it would be “a mistake” to withdraw his plea, and there was no basis for the withdrawal other than “a general buyer’s remorse.” The trial court told Malbrough, “I just really wonder what you [Malbrough] are thinking, ” considering that “[you are facing] 314 years... give or take.” The court also pointed out that section 1018 permits a defendant to withdraw a plea only upon a showing of good cause. Both Malbrough’s and Simmons’s attorneys agreed there was no basis to withdraw Malbrough’s plea. But when asked if he had anything to add, Malbrough stated, “I feel like I was pressured into taking the deal, to be honest.” The following exchange then took place:

“THE COURT: Really? Tell me about that.

“DEFENDANT MALBROUGH: By the Court, period. Just that if I didn’t we would be going to trial.

“THE COURT: That’s exactly what’s going to happen if you withdraw the plea, you are going to trial. That’s right. That’s what you want?

“DEFENDANT MALBROUGH: That’s what I’m prepared to do.

“THE COURT: Fair enough. Motion to withdraw the plea is granted, we’re ready to try the case.”

Simmons's attorney objected that Malbrough’s statements did not meet the standards for withdrawing a plea, and the trial court agreed but stated: “Mr. Malbrough [in] what is clearly an 11th hour 59th minute expression that he’s articulated here today, which clearly I believe it appears to me ...

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