THE PEOPLE v. ERIC DSHAUN JONES

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. ERIC DSHAUN JONES, Defendant and Appellant.

B219210

Decided: November 22, 2010

Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Eric Dshaun Jones appeals from a judgment entered after he pled nolo contendere to count 2, continuous sexual abuse of victim E.J., a child under the age of 14 years (Pen.Code, § 288.5, subd. (a)) 1 and count 4, forcible rape of D.T. (§ 261, subd. (a)(2).)   Appellant also admitted that he had suffered one prior felony conviction within the meaning of section 667, subdivisions (b) through (i) and section 1170.12, subdivisions (a) through (d) (the “Three Strikes” law) and section 667, subdivision (a)(1).   As part of a negotiated plea bargain, the trial court dismissed counts 1 and 3, committing a lewd and lascivious act upon E.J. (§ 288, subd. (a)) and denied probation.

The trial court sentenced appellant to state prison for 35 years consisting of the following consecutive sentences:  24 years (count 2, the midterm of 12 years doubled), six years (count 4, the low term of three years doubled), and five years (the enhancement for a prior serious felony).

Appellant obtained a certificate of probable cause and contends that the trial court induced him to plead no contest by leading him to believe he could appeal its pretrial rulings on his evidentiary motions and motion to sever.2

We affirm the judgment.

FACTS AND PROCEDURAL HISTORY

Appellant regularly touched his daughter E.J. on her breasts and genitals when she visited him at his separate residence from 2004 until 2007.   During these incidents he often inserted his penis into her private area and ejaculated on her body.   E.J. was nine years old when the sexual attacks began.   In 2007, appellant raped 22-year-old D.T., who lived in the apartment next door to him.

On May 28, 2009, the trial court denied appellant's motion to sever count 4 from the other three counts.   On August 26, 2009, the parties and the trial court engaged in extensive settlement discussions.   Appellant rejected the prosecutor's offer of a 38-year prison sentence.

On August 31, 2009, the trial court granted in part and denied in part the prosecutor's motion to admit evidence of other sexual offenses pursuant to Evidence Code section 1108, subdivision (a) and Evidence Code section 1101, subdivision (b).  Next, the trial court denied appellant's motion pursuant to Evidence Code section 782 to admit evidence of E.J.'s prior sexual conduct.   Later, after discussing jury instructions and stating that it would order 60 jurors for trial the next day, the trial court held an in camera discussion with counsel that was not reported.

On returning to the courtroom, defense counsel stated:  “Your Honor, I'm sorry.   Before we do anything, I don't want to forget, [appellant] wants to make sure that I objected on the record to the court's ruling on the 1108 evidence and the 782.”   The trial court replied:  “Okay. You can't object to the ruling.   You can present your position, oppose and argue for and against.   I make rulings.   You can appeal a ruling, but you can't really object to a ruling.”   Defense counsel stated:  “He wants to make sure that his appellate rights are preserved for the record, and I think I did that.”   The trial court stated:  “I think you argued, and I ruled.   And so, if he disagrees with it, you can take it up on appeal.”

Following another off-the-record discussion, defense counsel asked:  “Did the court order a panel tomorrow 60 jurors for tomorrow?”   After the trial court responded “I did,” defense counsel stated that the last offer that she had relayed to appellant was 35 years in exchange for pleading guilty to counts 2 and 4 and admitting a prior strike and a prior serious felony conviction.   She then reviewed the amount of credit appellant had earned.   Defense counsel then stated “I relayed that offer to my client.   At this point it's just his decision to start picking the jury tomorrow or accept the People's offer.”   After further discussion, the trial court stated:  “So you have a determinate offer of 35, of which you would serve, given time credits, 28 and whatever number of months that is․  We will gear on up and go ahead and try it like other cases.   He's got an offer.   He needs to accept or reject.”

After appellant conferred with counsel and telephoned his wife, defense counsel stated that appellant would take the plea.   She stated:  “Your Honor, my client is going to go ahead and enter no contest pleas to counts 2 and 4, but, before he does that, he wants to state on record that, by doing so, he's not waiving any appellate rights that he may have.”   The trial court responded:  “That would go without saying.”   The trial court continued:  “There is nothing in here that says he's waiving his rights to any appellate rights he may have.”

The prosecutor then read appellant his constitutional rights, which he waived.   When asked by the prosecutor if he had any questions, appellant said:  “Do I have to take the deal, your honor?”   The trial court stated:  “You don't have to take it, but we will start trial, so, I mean, you have a choice.”   After speaking with his counsel, appellant stated that he had nothing to say.   Appellant then pled nolo contendere.

DISCUSSION

Appellant was not induced to plead nolo contendere by a misrepresentation by the trial court

Appellant contends that that the trial court induced him to plead nolo contendere by leading him to believe he could raise pretrial rulings on appeal.   He contends that the judgment of conviction must be reversed and he should be afforded the opportunity to withdraw his plea of nolo contendere.   We disagree.

Only certain issues may be raised on appeal after a guilty plea.   These issues are limited to issues based on reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings resulting in the plea.   (Pen.Code, 1237.5.)   The reason for this rule is that a plea of guilty admits all matters essential to the conviction.  [Citation.]  Obtaining a certificate of probable cause does not make cognizable those issues which have been waived by a plea of guilty.  [Citation.]  (People v. Hayton (1979) 95 Cal.App.3d 413, 416 (Hayton ).) 3  Thus, a guilty plea waives any right to raise questions regarding the admissibility of evidence.  (People v. Soriano (1992) 4 Cal.App.4th 781, 784.)   Nor may a party appeal a motion to sever after a plea of nolo contendere.  (People v. Haven (1980) 107 Cal.App.3d 983, 986.)

Appellant acknowledges that the issues of whether the trial court erred in denying his evidentiary motions, granting the prosecutor's evidentiary motion, and denying his motion to sever are waived by his plea of nolo contendere.   Nevertheless, appellant urges that because his plea was induced by a misrepresentation by the trial court, he should be able to withdraw his plea of nolo contendere.   He cites People v. DeVaughn (1977) 18 Cal.3d 889, 896 (DeVaughn ), for the proposition that when a trial court bargains with defendants to preserve for appellate purposes an issue that cannot be raised on appeal, the plea has been improperly induced, and the defendant must be given an opportunity to withdraw the plea.   In DeVaughn, the court held that guilty pleas were improperly induced by the trial court which, in accordance with the plea bargain, purported to preserve for review on appeal the issues raised on the motions.  (Id. at p. 893.)   However, the court did not provide factual background or analysis in support of its holding and we therefore conclude that it is not persuasive here.

Appellant's reliance on People v. Haven, supra, 107 Cal.App.3d 983, is unavailing.   In that case, without discussion of the facts or any analysis, the People conceded that the defendant's plea was induced by her erroneous understanding that the denial of her motion to sever was cognizable on appeal.  (Id. at p. 985.)   Nor is People v. Bowie (1992) 11 Cal.App.4th 1263, cited by appellant, on point.   In that case, we found that the trial court incorrectly advised appellant, who was proceeding in propria persona, that his admission of an allegation of a prior federal bank robbery conviction pursuant to section 667, subdivision (a) preserved his right to appeal whether his previous conviction constituted a serious felony under that section.   (People v. Bowie, supra, at p. 1268.)   We held that the defendant only admitted the enhancement allegation after being assured by the trial court that his admission preserved his right to appeal, and that therefore the admission was improperly induced and constituted grounds for reversal.  (Ibid.) As we discuss below, the trial court here made no such assurances.

The present case is more akin to People v. Hernandez (1992) 6 Cal.App.4th 1355.   In that case, the Court of Appeal held that the defendants guilty plea waived his appeal on the issues of the denial of his nonstatutory motion to dismiss on speedy trial grounds and failure to ensure the availability of a material witness.   The Court of Appeal rejected the defendants argument that the trial court had made a representation that an appeal would be permitted or that there was an understanding that the defendants plea was conditioned upon such an assumption.   Rather, the record indicated defense counsel had merely stated that he would file a certificate of probable cause and the trial court stated it understood that an appeal would be filed.  (Id. at p. 1361.)   The Court of Appeal held that the trial courts mere acquiescence of an intention to appeal does not confer jurisdiction on the appellate court if the issue proposed to be raised is not cognizable on appeal.   It noted:  “ ‘Obtaining a certificate of probable cause does not make cognizable those issues which have been waived by a plea of guilty.’ ”  (Id. at p. 1361.)

Here, as even appellant concedes, the record does not reflect the trial court expressly promised appellant he could appeal its pretrial rulings.   Still, appellant contends that the trial courts statement that it would go without saying that appellant was not waiving his rights, was an inadvertent misrepresentation to appellant that he could appeal these issues.   We disagree.   Appellant seeks to bootstrap a previous conversation regarding appellants right to appeal evidentiary rulings to a later conversation in which the trial court made a general statement that by entering into a plea bargain, appellant was not waiving any appellate rights that he may have.

Our review of the chronology of the events shows that the court denied the motion to sever on May 28, 2009.   On August 26, 2009, appellant rejected an offer by the prosecutor of a 38-year prison sentence.   On August 31, 2009, the trial court denied appellants motions made pursuant to Evidence Code sections 782 and 1108, subdivision (a), discussed jury instructions, and informed the parties that it would order jurors for trial the next day.   After an in camera discussion, defense counsel stated that appellant wanted to be sure to preserve the evidentiary rulings for appeal.   The trial court stated that appellant could take the issue up on appeal.   At that point, the parties and counsel were not negotiating the plea, but were expecting to go to trial.

It was only after the parties held further discussions on credits and the settlement offer, and after appellant made a phone call to his wife, that he decided to take the plea.   Appellant argues that his counsels statement that appellant wished to take the plea and wanted to ensure that by taking the plea hes not waiving any appellate rights that he may have, pertained specifically to the trial courts rulings on the evidentiary motions and motion to sever.   The record does not support appellants argument.   The trial courts general statement that there is nothing in here that says he is waiving his rights to any appellate rights he may have, does not support appellants argument that the right to appeal the evidentiary motions and motion to sever was part of the negotiated plea bargain.   Significantly, the trial court informed appellant that he did not have to take the plea bargain, but if he did not, he would have to start trial.

We conclude that the trial court did not make a misrepresentation that induced appellant to plead nolo contendere.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_, P. J.

BOREN

We concur:

_, J.

DOI TODD

_, J.

CHAVEZ

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. Appellant filed a petition for writ of habeas corpus on October 1, 2010.   We have filed a separate order in connection with the petition for writ of habeas corpus..  FN2. Appellant filed a petition for writ of habeas corpus on October 1, 2010.   We have filed a separate order in connection with the petition for writ of habeas corpus.

FN3. Pursuant to section 1237.5:  “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met:  (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”.  FN3. Pursuant to section 1237.5:  “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met:  (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”