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People v. Gandy

California Court of Appeals, Second District, Fourth Division

March 29, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
ANTHONY EDWARD GANDY, Defendant and Appellant.

         APPEAL from a judgment of the Superior Court of Los Angeles County No. GA081997, Candace J. Beason, Judge. Affirmed.

          Sunnie L. Daniels, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.

          EPSTEIN, P. J.

         Defendant Anthony Edward Gandy appeals following his no contest plea, in which he admitted a prior strike (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subd. (a)-(d))[1] based on three out-of-state felony convictions. Before he entered his plea, defendant moved to dismiss his prior felony convictions, which resulted from his no contest plea in 2001 to burglary and robbery charges in Oregon, on the ground that those convictions were obtained in violation of his constitutional rights under Boykin-Tahl.[2]

         Defendant contends he did not voluntarily and intelligently waive his Boykin-Tahl rights (the right to a jury trial, the right to confront witnesses, and the privilege against self-incrimination) when he pleaded no contest in the Oregon proceeding, and therefore the prior convictions cannot be used to enhance his sentence in this case. However, defendant may not collaterally attack a prior out-of-state conviction without demonstrating that “Tahl-like requirements operated in the jurisdiction at the time of the plea.” (People v. Green (2000) 81 Cal.App.4th 463, 471 (Green).) Defendant did not meet this burden. We also find that his plea was voluntary and intelligent under the totality of the circumstances. We therefore affirm.

         FACTUAL AND PROCEDURAL SUMMARY

         The Los Angeles District Attorney charged defendant by information in December 2011 with seven counts: dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count 1), assault with a semiautomatic firearm (§ 245, subd. (b); count 2), possession of a firearm by a felon (§ 12021, subd. (a)(1); count 3), possession of ammunition (§ 12316, subd. (b)(1); count 4), sale and transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a); count 5), possession for sale of a controlled substance (Health & Saf. Code, § 11378; count 6), and leaving the scene of an accident (Veh. Code, § 20001, subd. (a); count 7). Three prior felony convictions were alleged as strikes (§§ 667, subds. (b)-(i), 1170.12, subd. (a)-(d)) and as prior serious felonies (§ 667, subd. (a)(1)). Enhancements for personal use of a firearm also were alleged. (§§ 665, subd. (c), 1192.7, subd. (c), 12022.5, subd. (a).) Defendant pleaded not guilty and denied the special allegations.

         In April 2012, defendant moved to dismiss the alleged prior felony convictions, which resulted from his no contest plea to two counts of burglary and one count of robbery before an Oregon court in 2001. He argued the prior convictions could not be used to enhance his sentence because he had not been expressly advised of nor waived his rights, as required by Boykin-Tahl and Oregon law. He cited the relevant Oregon statute, which provides: “‘(1) The court shall not accept a plea of guilty or no contest... without first addressing the defendant personally and determining that the defendant understands the nature of the charge. [¶] (2) The court shall inform the defendant: (a) That by a plea of guilty or no contest the defendant waives the right: [¶] [(A)] To trial by jury; [¶] [(B)] Of confrontation; and [¶] [(C)] Against self-incrimination.” (Or. Rev. Stat. § 135.385.) As exhibits to his motion to dismiss, defendant attached the Oregon superseding indictment, his signed plea petition, a transcript of the plea and sentencing hearing, and his own declaration.

         The plea petition was a two-page form including half a page for defense counsel's certification. Paragraph 6 stated: “I understand that I am not required to plead guilty or no contest and may plead not guilty if I choose. If I plead not guilty, I understand I am entitled to a speedy trial before a jury of my peers;... that I have an absolute right to confront any witness that would testify against me and cross examine such witness; [and] that I need not take the witness stand or give any testimony against myself.” Paragraph 11 stated: “I have taken no drink nor anything else which would in any way [impair] my judgment at this time, and I feel th[at] I am now fully alert and that in executing this petition I am doing so knowingly and voluntarily.” Defendant signed and dated the petition. His attorney certified that he believed “the statements, representations and declarations made by Defendant in the foregoing petition are in all respects accurate and true.” His attorney also certified “[t]hat in my opinion the Defendant's plea is voluntarily and understandingly made.”

         The transcript of the plea and sentencing hearing indicates that the Oregon trial court had ratified a plea bargain agreement and defendant tendered the plea petition. The transcript includes the following colloquy:

         Judge: Mr. Gandy uh, I see that you and Mr. Bain [defense counsel] have both signed this written plea petition. Did you in fact sign this on November the 14th?

         Gandy: Yes sir.

         Judge: Did you have a chance to read through it carefully and discuss it with Mr. Bain before you signed it[?]

         Gandy: Yes I did.

         Judge: Any questions about what it says or what you are giving up ...


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