P. v. Coe
Filed 8/6/12 P. v. Coe CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff
and Respondent,
v.
KEVIN COE,
Defendant
and Appellant.
B235703
(Los
Angeles County
Super. Ct.
No. BA356480)
APPEAL
from a judgment of the Superior Court
of
County, Frederick N. Wapner, Judge. Affirmed.
Kevin
Coe, in pro. per.
No
appearance for Plaintiff and Respondent.
Kevin
Coe appeals from the judgment entered following his plea of no contest to two
counts of false imprisonment of a hostage
(Pen. Code, § 210.5),
name="_ftnref1" title="">[1]
and one count of misdemeanor assault by means likely to produce great bodily
injury (§ 245, subd. (a)(1)), and his admissions that in 1987 he had been
convicted of four serious or violent felonies within the meaning of the Three
Strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), that in 1987,
1996, 2000 and 2004 he served prison terms for separate felony offenses and,
pursuant to section 667.5, subdivision (b), committed a felony or did not
remain free of prison custody for a period of five years subsequent to the
conclusion of the prior term, and had been convicted of five felonies which,
pursuant to section 1203, subdivision (e)(4), precluded the granting of
probation. As part of a plea agreement,
the trial court struck Coe’s admissions to the Three Strikes allegations, then
sentenced him to 12 years in prison. We
affirm.
1. Facts.
On
May 7, 2009, Sonia Ramirez
worked at a store called Oceano L.A., Incorporated. Ramirez had just entered the store and sat
down when Coe, followed by a number of police officers, walked in and went into
one of the rest rooms located in the office where Ramirez works. After approximately five minutes, Coe walked
out of the rest room, immediately walked over to Ramirez and, while standing
behind her forcibly used his arms to “grab[] [her] by [her] neck.” Ramirez was frightened and in shock.
The
police officers who had been following Coe had also entered the office and,
after he began to choke Ramirez, they told Coe to let go of her. After about two minutes, Coe let Ramirez go
and she walked out of the office. Before
leaving the area, Ramirez saw Coe attempt to leave the office by climbing out
an interior window, into the store.
Yolanda
Reyes was also in the office at the Oceano L.A., Incorporated store on the
morning of May 7, 2009. While Reyes was in a corner crouching down
next to a desk with a window above it, she saw Coe and realized that “he was
trying to get out through that area.”
Coe pushed a chair up against Reyes so that she could “feel . . . the
top part of his body . . . pushing her.”
Coe had Reyes pinned between the chair and a wall for approximately one
minute. She was unable “to move in any
direction” and the chair was hurting her leg.
When Reyes looked up, she saw three police officers. One of the officers told Reyes to cover her
face. It was then that she felt the
effects of the pepper spray the officers sprayed at Coe.
Hrand
Avakemian is a parole agent with the California
Department of Corrections. On the
morning of May 7, 2009, Avakemian, who was dressed in plain clothes “with a
ballistic vest with police identifiers . . . on the front and back[,]” went to
an apartment on South Norton Street in East Los Angeles. He was accompanied by four other agents. Avakemian and the others knocked on the door
and announced that they were police officers.
After approximately five minutes, a woman, Coe’s wife, answered the
door. When asked if Coe were there, his
wife repeatedly said that he was not.
However, after a time, “she gave a verbal consent to search the
apartment.” As he was looking out a
window, Avakemian saw Coe “crouching behind a white . . . van . . . south of
the apartment building . . . .”
Avakemian
left the apartment and chased Coe, who was dressed only in boxer shorts. Coe “climbed into a dumpster and went over a
chain-link fence wrapped with barbed wire.”
Although Avakemian continuously ordered Coe to “stop,” he climbed over
the fence, then ran off. At that point,
Avakemian lost sight of him.
Believing
that Coe would run toward Pico Boulevard, Avakemian and his partners headed in
that direction. While on Pico, Avakemian
saw Coe enter a retail store. Avakemian
went to the back of the store to see if there were an exit and found it to be
padlocked from the outside. Realizing
that there was no way out of the rear of the store, Avakemian went back to the
front and went inside.
In
the back of the store, Avakemian observed Coe in a bathroom, holding a ladder
in front of him. Although the officers
were commanding him to stop, Coe came lunging out of the bathroom with the
ladder. As Coe moved forward, Avakemian
fired his taser at Coe’s abdomen. Coe
threw the ladder to one side, toward another officer, Agent Resko, but the
taser affected Coe for only two or three seconds. After its effects wore off, Coe grabbed one
of the store’s employees, Sonia Ramirez, “from behind with his arm.” Avakemian “tried to cycle another round with
a taser but it was malfunctioning so [he] put it away.” Avakemian continued to order Coe to release
Ramirez. When Coe failed to do so, an
officer told Ramirez to cover her face.
Avakemian then “utilized pepper spray [and his] ASP baton[].” Ramirez was able to break free of Coe’s grasp
and she left the area.
Coe
continued to resist the officers and ran toward a wall with a window leading to
the front of the store. Avakemian
observed “[Yolanda] Reyes kind of crouched down by [a] desk . . . and [Coe] was
pinning her against [a] wall” by the window.
After Avakemian again used his pepper spray, one of the officers was
able to grab Coe and pull him away from Reyes so that she could get out of the
corner.
After
several minutes, by using pepper spray and their batons, the officers were able
to gain control of Coe and take him into custody.
2. Procedural
history.
Following
a preliminary hearing, on December
28, 2009 an information was filed charging Coe with two counts of felony false
imprisonment of a hostage in violation of section 210.5 and one count of
misdemeanor assault by means likely to produce great bodily injury in violation
of section 245, subdivision (a)(1). It
was further alleged that Coe had suffered four prior convictions for serious or
violent felonies within the meaning of sections1170.12, subdivisions (a)
through (d) and 667, subdivisions (b) through (i), the Three Strikes law, and
that, with regard to counts 1 and 2, Coe had suffered four prior convictions
for which he served prison terms within the meaning of section 667.5,
subdivision (b), and had been convicted of four felonies which precluded a
grant of probation pursuant to section 1203, subdivision (e)(4). Coe waived arraignment, pled not guilty to
the three counts and denied the special allegations.
On
January 28, 2010, Coe made a motion to set aside the information pursuant to
section 995. After considering Coe’s
motion, the People’s response and the transcript of the preliminary hearing,
the trial court denied the motion. The
court indicated that “clearly the evidence is stronger on count 1 than count 2,
but that’s not what the standard is. The
standard is whether there was sufficient cause for the magistrate and there was
sufficient cause . . . as to those counts.”
The
matter was called for trial on July 30, 2010.
After some discussion regarding Coe’s clothing, Coe asked to address the
court. Apparently, a “deal” had been
offered and he had not yet decided
whether to take it. Coe stated, “[I]f I
didn’t take the deal, I was going to exercise my Faretta rights . . . .”
name="_ftnref3" title="">[3] The trial court responded, “Well, your right
to represent yourself, does that mean you’re going to represent yourself
starting on Monday with picking the jury”
Coe indicated that he would “need time to prepare.” The court stated, “No.
You don’t get that. Now is the
time for trial. So you hired [defense
counsel], and you can fire [defense counsel]; but we’re going to trial
now. So it’s only – if you’re not ready
to represent yourself, then you don’t get to.”
The court continued, “I am telling you that after a year and a half of
continuing your case, I won’t continue the case anymore. . . . Your request to represent yourself is denied.”
After
the trial court denied his Faretta
motion, Coe indicated that he wished to be tried by a different judge in
another court room. The trial court
responded, “ . . . But an affidavit against the judge [must have been] filed in
the master calendar court at the time the case [was] sent out and not after it
[got] there. It’s not timely.” Coe responded, “That’s what I’m saying. This is why I don’t want my attorney. Every time I turn the corner, I’m getting
knocked down because of her neglect.”
The trial court then indicated
that Coe was “about to get a trial” and asked Coe to “not . . . say anything” when the jurors arrived.
At
proceedings held the following Monday, the trial court indicated, “I’ve discussed
the matter with counsel; and if Mr. Coe pleads open to the court in case
BA356480 and admits [a] probation violation in SA067325 and waives all of his
back time, then I will sentence him to
the high term of eight years plus the four one-year priors, strike all of the
Strikes, give him 12 years at 50 percent.
[¶] He has to plead to the
misdemeanor, six months concurrent on the misdemeanor; and I will terminate his
probation in SA067325. [¶] And it’s my understanding that if that
happens, that the People would dismiss [a third pending matter,]
BA356484.” Although the People objected,
indicating that their offer, which included a Strike and six months more prison
time, was more reasonable, Coe indicated he wished to accept the trial court’s
offer of an open plea.
After
waiving his right to a jury trial, his right to confront the witnesses against
him, the right to subpoena witnesses and present a defense and the right to
remain silent, Coe pled no contest to “the charges in counts 1 and 2, felonies,
false imprisonment of a hostage, in violation of section 210.5 . . . .” “To the charge in count 5,[
a misdemeanor, assault by means of force likely to produce great bodily injury
in violation of section 245, subsection (a) subsection (1)[,]” Coe again pled
“no contest.”
At
the same proceedings, the trial court informed Coe that he would have to admit
his Strikes. The court explained, “[Y]ou
have to admit your strikes, and then I’m going to strike them; but since this
is a deal that’s coming from the court and not the People, you have to admit
the strike convictions. [¶] So do you admit that you were convicted in
case number A089598 on February the 24th of 1987 of two counts of robbery, one
count of kidnapping, and one count of rape, violation of section 207, 211, and
261.2 . . . ” Coe responded,
“Yes.” Coe then admitted having served
four separate prison terms within the meaning of section 667.5, subdivision (b)
and gave up his right to credit “for any of the time that [he had] served in
custody until [that day][.]” Defense counsel joined in the waivers, concurred
in the plea and stipulated to “a factual basis based on the police report and
preliminary hearing transcript.”
The
trial court accepted Coe’s plea, found that it had been freely and voluntarily
made and that he understood the charges against him and the consequences of the
plea. Based on these factors, the court
found Coe guilty of the alleged offenses and found true the allegations of
prior convictions and prison terms.
At
proceedings held on June 8, 2011, Coe made a motion to withdraw his plea. His counsel indicated that Coe had been
diagnosed as bipolar with paranoia schizophrenia and also suffers from COPD,
asthma and seizures. In addition, “he pled under a great deal of stress” and he
received incompetent advice from defense counsel. After the prosecutor indicated that the trial
court was aware of the circumstances which had surrounded the plea, the court
denied the motion. The trial court
indicated, “. . . [I]t’s basically buyer’s remorse. And the – I don’t think there’s been clear
and convincing evidence that he was forced to do this, that he didn’t know what
he was doing. [¶] I mean, if every case where the client said,
you know, my lawyer forced me to do it, I want to withdraw my plea, we couldn’t
get any business done. [¶] So that’s the basis for the ruling.”
As
to counts 1 and 2, the trial court sentenced Coe to the “high term of eight
years in the state prison[, the terms to run] concurrent[ly] with each
other.” The court then imposed an
additional year for a each of the four section 667.5, subdivision (b) priors[,]
for a total of 12 [years.] A term of six
months was imposed for Coe’s conviction of count 5, the term to run “concurrent
with” the sentences imposed for counts 1 and 2.
Although he had waived his back time, Coe was to receive presentence
custody credit from the date he entered the plea. Accordingly, he was awarded 310 days actually
served and 310 days of conduct credit, for a total of 620 days. Coe was ordered to pay a $200 restitution
fine (§ 1202.4, subd. (b)), a stayed $200 parole revocation restitution fine
(§ 1202.45), a $40 court security assessment (§ 1465.8, subd. (a)(1)) and
a $30 criminal conviction assessment (Gov. Code, § 70373). Then, on its own motion, the trial court
struck all four Three Strikes allegations (§§ 1170.12, subds. (a)-(d), 667,
subds. (b)-(i)).
On
August 26, 2011, Coe filed a timely notice of appeal. The “notice” indicates that “[t]his appeal
challenges the validity of the plea or admission” and requests a certificate of
probable cause. That same day, the
court, indicating it had read and considered the request for a certificate of
probable cause, granted it.
CONTENTIONS
After examination
of the record, counsel filed an opening brief which raised no issues and
requested this court to conduct an independent review of the record.
By notice filed
April 10, 2012, the clerk of this court advised Coe to submit within 30 days
any contentions, grounds of appeal or arguments he wished this court to
consider. On April 17, 2012, Coe filed a
document “enclosing some grounds of appeal, contentions and arguments.” Coe’s primary argument, and the one on which
all of the others turn, is that his trial counsel was ineffective. Among other contentions, he asserts that,
since the assault charge was alleged as a misdemeanor, his counsel should have
argued that the charges alleging false imprisonment should also have been
charged as misdemeanors, that his counsel failed to procure evidence of video
surveillance of the store’s office, that his counsel should have realized that
the evidence against him had been “tampered” with, that his counsel failed to
argue his psychiatric disabilities and their effect on his behavior and that
counsel failed to argue how the use of the tazer affected Coe’s ability to
function.
“In assessing
claims of ineffective assistance of trial counsel, we consider whether
counsel’s representation fell below an objective standard of reasonableness
under prevailing professional norms and whether the defendant suffered
prejudice to a reasonable probability, that is, a probability sufficient to
undermine confidence in the outcome.
[Citations.]” (
1211; see Strickland v. Washington (1984)
466 U.S. 668, 694.) If the defendant
makes an insufficient showing with regard to either component, the claim must
fail. (People v. Holt (1997) 15 Cal.4th 619, 703.)
With regard to the two
counts of false imprisonment of a hostage, the evidence at the preliminary
hearing indicated that a group of police officers was required to use a tazer,
pepper spray and their batons in order to get Coe to release Ramirez and
Reyes. The assault occurred when Coe
threw a ladder at a police officer.
Given the difference in the seriousness of the crimes, defense counsel
would have been hard pressed to argue that the counts alleging false
imprisonment amounted to mere misdemeanors.
With regard to
counsel’s failure to obtain video surveillance of the office, there is no
evidence that such a tape existed. It
was mentioned by neither the store employees nor the police officers. Counsel cannot be faulted for failing to
obtain evidence which does not exist.
Coe indicates his
section 995 motion to dismiss was denied with “bias.” A review of the record indicates
otherwise. Section 995 provides in
relevant part: “[T]he indictment or
information shall be set aside by the court in which the defendant is
arraigned, upon his or her motion, in either of the following cases: [¶] . . . [¶] (2) If it is an
information: [¶] (A) That before the filing thereof the
defendant had not been legally committed by a magistrate: [¶]
(B) That the defendant had been committed without reasonable or probable
cause.” Here, the information was filed
following a preliminary hearing after which a magistrate found that there had
been “sufficient evidence presented that the offenses in counts 1, 2, and 5,
two violations of . . . section 210.5 and one violation of . . . section 245[,
subdivision] (a)(1) ha[d] been committed[.]”
The court, however, felt that the offense in count 5 did not give rise
to felony conduct. It therefore reduced
that charge to a misdemeanor. In view of
the court’s comments, it cannot be said that it was biased when it heard Coe’s
section 995 motion.
Coe indicates that
Sonia Ramirez “was sent out of the country not 30 d[a]ys after [the preliminary
hearing]” and that, accordingly, the district attorney had coerced her to
testify. A review of the record fails to
reveal that Ramirez was sent out of the country and a review of her testimony,
particularly when it is compared with that of Avakemian, fails to indicate that
it was in any way coerced.
Coe indicates the
evidence against him was “tampered” with.
Nothing in the record indicates this to be true.
Coe appears to be
arguing that the trial court disregarded his mental instability. However, throughout the preliminary hearing,
the preparation for trial and the plea negotiations, Coe appeared to be
coherent and aware of the proceedings.
It was only when he made his motion to withdraw his plea that Coe
revealed that he has been diagnosed as bipolar with paranoia schizophrenia and
suffers from COPD and seizures. Even
then, he blamed the fact that he entered the plea, not only on his mental
illness, but on the fact that he was acting “under a great deal of stress” and
had received incompetent advice from his counsel. Under these circumstances, the trial court
properly determined that Coe’s mental illness had little or nothing to do with
his decision to enter the plea.
Finally, Coe
argues that the effects of the tazer, “which disabled [his] functions,” were
improperly disregarded. However, the
testimony at the preliminary hearing indicated that the tazer was
malfunctioning and had little or no effect on Coe. Coe was acting of his own accord, not as the
result of having been shot with a tazer.
It should be noted
that Coe suffered no prejudice as a result of his trial counsel’s actions in
this matter. Although he had been charged
with four Three Strikes felonies which, if found true, would have subjected him
to a sentence of 25 years to life, the trial court, after “discuss[ing] the
matter with counsel[,]” agreed to strike all of the Three Strikes priors and
sentence Coe to a total term of “12 years in prison at 50 percent.”
REVIEW ON APPEAL
We have examined
the entire record and are satisfied counsel has complied fully with counsel’s
responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, J.
We concur:
KLEIN,
P. J.
ALDRICH, J.
further statutory references are to the Penal Code unless otherwise indicated.
facts have been taken from the transcript of the preliminary hearing.
