P. v. Blood
Filed 12/12/12 P. v. Blood CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID THOMAS BLOOD,
Defendant and Appellant.
D060503
(Super.
Ct. Nos. SCD229120,
SCD226977)
APPEAL from
a judgment of the Superior Court
of
County, Charles R. Gill, Judge. Affirmed.
On February 22, 2011, David Blood pled
guilty to 12 felony counts (and related enhancements), and four misdemeanor
counts as alleged in a consolidated information arising from two superior court
cases: SCD229120 and SCD226977. Blood also admitted two prior serious
felonies (Pen. Code,
name="_ftnref1" title="">[1]
§ 667, subd. (a)(1)) and two prior strikes (§ 667, subds.
(b)-(i)). The court agreed it would not
impose a sentence greater than 48 years four months to life.
offer in the case, and appellant pled to the "face" of the complaint
with no dismissal of any of the offenses, enhancements or allegations.
At
sentencing on July 8, 2011,
the court denied probation and dismissed the strike priors except as they
applied to count 13 (assault with the intent to commit rape, § 220, subd.
(a)). For count 13, the court imposed an
indeterminate term of 25 years to life, plus a 10-year determinate term for the
two prior serious felonies. It also
imposed a consecutive determinate term of 13 years four months for the
remaining felony counts and the two prior serious felonies. The total sentence was "48 years and 4
months to life." The court gave
appellant credit for time served for the misdemeanor counts, and ordered him to
pay victim restitution and various fines and fees.
FACTUAL
AND PROCEDURAL BACKGROUND
In April 2010, the district attorney filed the first
superior court case against Blood (SDC226977).
Blood was released on $35,000 bail, but failed to appear for his
preliminary hearing. He was remanded to
custody and later released on $75,000 bail.
In August, while out of custody on bail, he committed the charges
alleged in the second case (SCD229120) and bail was set at $2 million. Blood was bound over in both cases following
preliminary hearings conducted in November.
On January 10, 2011,
the court granted the district attorney's motion to consolidate the cases and
the People filed a consolidated information setting forth the crimes,
enhancements and prior felonies which Blood admitted on February 22, 2011.
Counts 1 through 4
Blood pled
guilty to four counts concerning Terry O'Donnell: grand theft of personal property (count 1,
§ 487, subd. (a)); diversion of construction funds over $1,000 (count 2,
§ 484b); first degree burglary (count 3, §§ 459, 460); and
contracting without a license (count 4, Bus. & Prof. Code, § 7028,
subd. (a)).
At the
preliminary hearing, O'Donnell testified that in August 2008, he entered into a
contract with appellant to remodel his residence in Spring Valley
for $65,000 and gave Blood a down payment of $6,850 to start the work. O'Donnell agreed he would pay Blood for work
performed by subcontractors and Blood would pay the subcontractors. Blood asked him not to speak to the
subcontractors. It was anticipated the
job would be completed in about "two plus" months, but the work kept
getting extended.
During the
course of the remodel, O'Donnell made numerous requests that Blood provide
invoices for labor services and materials, but found the process to obtain
these receipts was "impossible."
Eventually, O'Donnell "realized something was not right," and
determined he was being overcharged, double-billed and charged for materials
that were never purchased.
On March 19
and 20, 2009, Blood spent the night in O'Donnell's house without his permission
and made $780 in unauthorized phone calls to area code 900 numbers. When O'Donnell confronted Blood about this
incident on the afternoon of March 20, Blood was "disheveled" and
appeared to have "some kind of oil . . . all over his
body." O'Donnell later determined a
telephone and some pillows were missing from the house.
O'Donnell
fired Blood in April 2009 after losing confidence in him and having paid him
approximately $197,000. Subcontractors
completed the work on the house at a cost of approximately $29,000. O'Donnell would not have hired Blood if he
had known he was an unlicensed contractor.
Counts 5 through 7
Blood pled
guilty to three counts concerning Thomas Geairn: grand theft of personal property (count 5,
§ 487, subd. (a)); diversion of construction funds over $1,000 (count 6,
§ 484b); and contracting without a license (count 7, Bus. & Prof.
Code, § 7028, subd. (a)).
At the
preliminary hearing, Geairn testified he hired Blood in April 2009 to do some
concrete, grading, drainage and block wall work at his house in Spring
Valley. He expected the
work would be completed in approximately 30 days and, based on Blood's
representations, thought he was a licensed contractor. Two months later, Geairn fired Blood upon
learning he was unlicensed and he had charged him in excess of $1,000 for
materials that were not purchased. By
that point Geairn had paid Blood about $2,000 more than estimated and the work
was not complete. Geairn hired another
contractor at a cost of approximately $12,000 to complete the work and to
repair work that Blood had performed improperly.
Counts 8 through 11
Blood pled guilty to four counts
and admitted an enhancement concerning Susan Arlin: first degree burglary, committed while a
person other than an accomplice was present (count 8, §§ 459, 460, 667.5,
subd. (c)(21)); grand theft of personal property (count 9, § 487, subd.
(a)); diversion of construction funds over $1,000 (count 10, § 484b); and
contracting without a license (count 11, Bus. & Prof. Code, § 7028,
subd. (a)).
At the
preliminary hearing, Arlin testified she hired Blood in August 2009 to remodel
her home, where she and her 90-year-old disabled father lived. Blood told her he was a licensed
contractor. At Blood's request, she gave
him $1,400 for materials for a concrete deck but she never received the
materials.
Arlin gave
Blood permission to access the house while she was gone, but did not give him a
key and told him she did not want anyone in her bedroom, stating it was
"off limits." When she arrived
home around 5:00 p.m. on September
15, her father told her Blood had been in her bedroom all afternoon. Upon examining her bedroom, she noted there
was an imprint on her bed as if "a person had been laying
there." Later she determined a
towel, lotion and hair conditioner were missing. When Arlin spoke with Blood about the
incident, he admitted he had lain on her bed, but did not know what had
happened to the missing items. In
December she discovered these items in the attic of her garage.
Arlin fired
Blood on October 19 after receiving bills showing unauthorized charges on
September 15 for pay-for-view movies, including sexually explicit movies, and
area code 900 phone calls.
Counts 12 through 16
Blood pled
guilty to five crimes and admitted several enhancements arising from a series
of incidents on August 11, 2010: first
degree burglary, committed while a person other than an accomplice was present
(victim Rebecca E, count 12, §§ 459, 460, 667.5, subd. (c)(21)); assault
with an intent to commit rape (victim Danielle O, count 13, § 220, subd.
(a)); making a criminal threat (victim Danielle O, count 14, § 422);
possession of a controlled substance (count 15, Health & Saf. Code,
§ 11377, subd. (a)); and being under the influence of a controlled
substance (count 16, Health & Saf. Code, § 11550, subd. (a)). Counts
12 through 15 were committed while Blood was released on bail. (§ 12022.1, subd. (b).)
At the
preliminary hearing, San Diego police officer Patrick Laco testified that on
August 11, 2010, at about 11:25 a.m. he responded to a " 'check the
welfare' " call and spoke with Blood's neighbor at her apartment. She told him that Blood had forced his way
into her apartment, claiming he felt like he was having a heart attack, and
tried to go into her bedroom. When he
declined her offer to call paramedics, she escorted him out of the apartment
and called the police. Blood was not
wearing a shirt and had on shorts under a "sticky" towel. The officer went to Blood's apartment; he was
not there, but the door was ajar.
Inside, the officer saw a towel and a liquid substance that looked like
semen.
On that
same day at about 11:15 a.m., Rebecca E. testified she was cleaning her
apartment when she noticed Blood standing in her living room in front of her
closed front door. She and Blood were
about five feet apart. Terrified,
Rebecca started screaming and reached for her cell phone. Blood, who took some steps towards her, kept
telling her to calm down. He then backed
up and left through the front door.
About 30
minutes later, Danielle O. was alone walking her dog on trails below street
level near the San Diego Zoo when she noticed Blood approach her. He passed her, turned around, and engaged in
small talk with her for a few minutes.
As Blood continued to ask Danielle questions she "started getting
creeped out" and tried unsuccessfully to create some distance between the
two of them. Danielle tried to shoo him
away and headed towards the surrounding residential areas. As she reached the base of the stairs leading
to the street, he grabbed her from behind, put her in a "bear hug,"
and said he was going to "cut" her.
As she started screaming, he forced her to the ground and while
alongside of her, placed both hands on her neck. Blood told her to stop screaming and repeated
he was going to cut her.
A jogger
intervened and despite Blood's claim that "Everything is fine," Blood
left the area. During the incident,
Blood never asked Danielle for money or searched her pockets. Danielle thought she was going to be stabbed
or raped.
Blood was
arrested in a nearby alley by police officers responding to a series of radio
calls about the incident. Blood was
visibly agitated, sweating profusely, and showing signs of being under the
influence of methamphetamine; a useable amount of the drug was found in his
wallet.
Priors
Blood
admitted he suffered a conviction for assault with intent to commit rape in
1985 (§ 220, Case No. CR72922) and a conviction for lewd act with a child under
age 14 in 1989 (§ 288, subd. (a), Case No. CR107450). He also admitted these convictions constitute
serious felony priors (§ 667, subd. (a)(1)) and strike priors (§ 667,
subd. (b)-(i)).
Proceedings Following the Preliminary Hearing
On January
10, 2011, the court granted the district attorney's motion to consolidate the
two superior court cases. It also denied
Blood's request for substitute counsel after conducting a hearing pursuant to
118. On February 22, 2011, Judge Kerry
Wells denied Blood's section 995 motion to dismiss count 12 (the burglary
concerning Rebecca) and count 13 (the assault with intent to commit rape
concerning Danielle). Blood then entered
his change of plea before Judge Wells; Judge Charles Gill sentenced Blood on
July 8, 2011.
DISCUSSION
Appointed
appellate counsel has filed a brief summarizing the proceedings below. Counsel presents no argument for reversal but
asks that this court review the record for error as mandated by
436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to three
possible but not arguable issues: (1)
whether the trial court erred in denying appellant's motion for substitute
counsel; (2) whether the plea agreement called for the court to impose an
unauthorized sentence; (3) whether counsel provided constitutionally deficient
representation in advising appellant of the consequence of his plea; and (3) whether
the court abused its discretion in imposing the maximum stipulated
sentence.
We granted Blood permission to file
a brief on his own behalf. He has
responded and raised five issues. We
have reviewed these alleged errors and find they have no merit.
First, Blood claims he was
"incompetent" when he entered his plea and thus his convictions must
be set aside. The record does not
support Blood's factual assertion his mental capabilities were somehow impaired. At the time Blood entered his change of plea,
he signed a form acknowledging, under penalty of perjury, he was entering the
plea "freely and voluntarily," and he was "sober and [his]
judgment [was] not impaired."
Likewise, when the court questioned Blood, he stated under oath he was
feeling "[c]ompletely clearheaded"; he did not feel pressured in any
way to plead guilty; and he "fully" understood the consequences of
his plea.
Second, in
a related argument, Blood contends his conviction was illegal and he is
entitled to a new trial because the court erred in failing to require him to
undergo a psychological evaluation pursuant to sections 1368 and 1370. He also maintains counsel who represented him
at trial and on appeal were ineffective for failing to request the court order
a psychiatric evaluation. Blood suggests
"he could be insane and mentally ill."
Blood
misconstrues section 1368. Contrary to
his claim, he was not entitled to a psychiatric examination to rule out the
possibility he "could be" insane or mentally ill. Instead the section applies when facts arise
during the course of criminal proceedings that create a
"doubt . . . in the mind of the judge as to the mental
competence of [a] defendant."
(§ 1368, subd. (a).) Under
such a circumstance the judge is required to set a hearing to determine the
defendant's mental competency. (
737-738.) However, absent some
indication of possible incompetency, the judge has no responsibility to order a
competency evaluation, nor is defense
counsel obligated to request one.
A defendant
is incompetent if he or she is incapable of understanding the nature of the
proceedings or of assisting in his or her defense. (People
v. Laudermilk (1967) 67 Cal.2d 272, 283; People v. Blair (2005) 36 Cal.4th 686, 711.) Here, the only suggestion of any mental
health issues occurred at sentencing.
The probation report outlined Blood's substance abuse history, noting he
had been drug free from ages 40 to 49, and mentioned he was diagnosed as
paranoid schizophrenic in 1989 while in state prison. His counsel argued Blood received inadequate
treatment for his mental condition while in prison and maintained he currently
needs treatment for substance abuse.
Blood's father opined that following his son's prior prison sentence, he
worked hard and was doing well, but relapsed into a condition he attributed to
drug abuse and described as "almost like Jekyll and Hyde."
There is
nothing in the transcripts of the court hearings, including the
the motion to consolidate, or the change of plea hearing to suggest Blood
exhibited any behavior that called into question his ability to understand the
proceedings or assist defense counsel.
The mere existence of a mental disorder, with no showing that it is
currently affecting the defendant's ability to understand the proceedings, is
insufficient to trigger the competency hearing requirement. (People
v. Rogers (2006) 39 Cal.4th 826, 846-848.)
On this record, the facts referencing appellant's mental issues were
insufficient to create a doubt as to his mental competency. There was no error based on an alleged
failure to comply with sections 1368 and 1370.
Third,
Blood argues his sentence was excessive and illegal. He appears to be arguing the
"sent[e]ncing lid of 48 years" was improper because he was
incompetent at the time he entered the plea and the court violated section
1368. Having rejected these contentions
as set forth above, this argument also fails.
Fourth, in
a generalized attack, Blood maintains his appointed trial and appellate counsel
"have failed to effectively" assist him in his defense, thus
violating his Sixth Amendment rights.
Defendants have a constitutional right to effective counsel in criminal
cases. (Gideon v. Wainwright (1963) 372 U.S. 335.) The burden is on the defendant to prove he
received ineffective assistance of counsel.
(People v. Fauber (1992) 2
Cal.4th 792, 831.) To do so, the
defendant must show counsel "failed to act in a manner to be expected of a
reasonably competent attorney acting as a diligent advocate," and that
counsel's failings prejudiced defendant.
(Ibid.) Although Blood complains about his attorneys,
he has failed to make even a prima facie showing he received ineffective
representation. To the extent this claim
(or any of Blood's other contentions) rests on evidence outside the appellate
record, it must be raised, if at all, in a petition for writ of habeas corpus. (See People
v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [where claim of ineffective
assistance of counsel depends on matters outside the record, it "is more
appropriately decided in a habeas corpus proceeding"].)
Fifth,
Blood claims his appellate counsel erred because he filed a
"appealable issues" and he requests that counsel be relieved. (Emphasis omitted.) The use of a Wende brief is recognized as a proper exercise of appellate
counsel's duties and does not constitute error or support a request that
counsel be relieved.
A review of
the record pursuant to People v. Wende,
supra, 25 Cal.3d 436 and Anders v.
California, supra, 386 U.S. 738, including the possible issues referred to
by appellate counsel and the issues Blood has presented, has disclosed no reasonably
arguable appellate issues. Competent
counsel has represented Blood on this appeal.
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.
All subsequent statutory
references are to the Penal Code unless otherwise specified.
name="_ftn2" title="">[2] The maximum sentence was 200 years to life plus 42 years.
