P. v.
Filed 7/20/12 P. v. Davis CA2/4
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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
MAURICE LAVALE DAVIS,
Defendant
and Appellant.
B230906
(Los Angeles County
Super. Ct. No. SA070462)
APPEAL from a judgment of the Superior Court of
County, Katherine Mader, Judge. Appeal dismissed.
John Doyle, under appointment by the
Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Scott A. Taryle and Russell A. Lehman, Deputy Attorneys
General, for Plaintiff and Respondent.
introduction
Defendant and appellant Maurice Levale
Davis appeals from a judgment of conviction following his entry of a plea of
nolo contendere on charges of lewd and lascivious acts upon a child under the
age of 14. He entered his plea after the
trial court ruled that evidence of a number of prior uncharged sexual offenses
by Davis were admissible pursuant to Evidence Code section 1108 (section
1108). He asserts on appeal that the
admission of such evidence was erroneous and violated his
of his plea of nolo contendere, and thus we dismiss it.
procedural and factual background
Davis was charged with four counts of lewd
and lascivious acts upon a child under the age of 14 (Pen. Code, § 288,
subd. (a)); the first two counts were for crimes committed with respect to
six-year old B.G., and the second two counts concerned acts committed upon
minor S.M. when she was eight and thirteen years old. Davis was also charged with a fifth count
for oral copulation/sexual penetration of B.G., a child 10 years or
younger. (Pen. Code, § 288.7, subd.
(b).) As to all five counts, it was
alleged that Davis committed the crimes against more than one victim
(Pen. Code, § 667.61, subd. (b)), that he had suffered two prior
convictions for serious or violent felonies (Pen. Code, §§ 667, subds.
(b)-(i), 1170.12, subds. (a)-(d)), and that he had served four prior prison
terms. (Pen. Code, § 667.5, subd.
(b).)
Davis initially pled not guilty to all
charges and denied the special allegations.
The prosecution subsequently moved to dismiss count four pursuant to
Penal Code section 1385, and the court granted the motion.
At the preliminary hearing, B.G.
testified that she was at her grandmother’s house when Davis, her uncle,
carried her into his room and put her on his bed, took off her pajamas, and
touched her on the buttocks and vagina.
He also put his penis into her mouth.
Another niece, 13-year-old S.M., testified that when she was eight years
old Davis fondled her vagina while she was watching television at his
apartment. She also testified that more
recently Davis grabbed her buttocks as she was sweeping up tree leaves on the
porch outside her grandmother’s house. Several
weeks later he grabbed her buttocks again as she was walking up the stairs of
her grandmother’s house. Both times S.M.
felt that he was grabbing her in a sexual way.
Defendant was held to answer on all charges.
After the prosecution disclosed its
intention to introduce evidence of previous uncharged sexual offenses pursuant
to section 1108, Davis moved to exclude such evidence under Evidence Code
section 352, and also argued that introducing evidence of incidents that
occurred when Davis was under age 14 would violate the Due Process Clause of
the United States Constitution. At the
same time, the prosecution made a motion to introduce evidence of Davis’
previous sexual offenses pursuant to section 1108. The prosecution stated that it intended to
offer evidence that Davis molested his cousin E.G. on multiple occasions when
E.G. was between the ages of five or six and ages eight or nine, and Davis was
between the ages of 10 and 15. The abuse
included forcibly sodomizing E.G. and forcing E.G. to orally copulate and
masturbate him. In addition, the
prosecution intended to offer evidence that Davis sexually assaulted his
biological aunt T.M. on three occasions, the first when he was 13 or 14 years
old and the last when he was in his early 20’s.
Finally, if the prosecution could locate the alleged victim, it intended
to offer evidence that Davis sexually assaulted his 17-year-old stepdaughter
A.W. on three occasions.
On August 9, 2010, the court denied
Davis’ motion in limine to exclude the evidence of past sexual offenses and
granted the prosecution’s motion seeking to introduce it. After that ruling, and following the
advisement and waivers of his pertinent constitutional rights and advisements
concerning the consequences of a guilty plea, Davis withdrew his pleas of not
guilty and pled nolo contendere to counts one and two, and also admitted the
prior conviction allegations.
On February 9, 2011, before the
sentencing, a Marsden hearing was
held. Davis complained that he had
entered the plea agreement believing that he was going to get 50 percent
credits on his sentence, and indicated that he wanted to withdraw his guilty
plea. The court stated that the law did
not require that credits be discussed when a plea is taken, but invited Davis’
counsel to make a motion to withdraw the plea.
Instead, Davis’ counsel requested that the court issue a certificate of
probable cause based on the court’s decision to admit the section 1108
evidence. The trial court agreed to do
so.
The court then sentenced Davis
pursuant to the negotiated plea agreement.
Davis received a total prison sentence of 15 years: six years on count 1 (the low term of three
years, doubled pursuant to Pen. Code, § 667, subds. (b)-(i), and Pen.
Code, § 1170.12, subds. (a)-(d)); a consecutive four years on count 2
(one-third of the middle term); and a consecutive five-year enhancement
pursuant to Penal Code section 667, subdivision (a)(1). The remaining counts and allegations were
dismissed pursuant to the negotiated plea agreement.
The court executed a certificate of
probable cause relating to the section 1108 ruling. In this appeal, Davis challenges that ruling.
discussion
“Subdivision (a) of [Evid. Code]
section 1101 prohibits admission of evidence of a person’s character, including
evidence of character in the form of specific instances of uncharged misconduct,
to prove the conduct of that person on a specified occasion.” (People
v. Ewoldt (1994) 7 Cal.4th 380, 393.)
However, section 1108 provides an exception to this rule in the case of
a defendant charged with a sexual offense, in which event evidence of the
defendant’s commission of another sexual offense or offenses is admissible
unless the trial court exercises its discretion under Evidence Code section 352
to exclude the evidence. (§ 1108,
subd. (a).)
On appeal, Davis contends that the
admission of evidence of his prior uncharged sexual offenses under section 1108
violated the Due Process Clause of the Fourteenth
Amendment. In the alternative, he
contends that the trial court abused its discretion in finding that the
probative value of the evidence outweighed its prejudicial effect, under
Evidence Code section 352. Finally,
Davis contends that the court erred in admitting evidence of sexual offenses he
committed when he was younger than 14 years of age without a showing by clear
and convincing evidence that he knew the wrongfulness of his actions at the
time. We conclude that Davis’ challenges
to the admission of evidence of his prior sexual offenses are not cognizable on
appeal because Davis entered a plea of nolo contendere, and thus we dismiss the
appeal.
Errors relating to evidentiary rulings
cannot be raised on appeal following a guilty or no contest plea. (People
v. Lilienthal (1978) 22 Cal.3d 891, 897.)
Penal Code section 1237.5 (section 1237.5) provides that generally no
appeal may be taken from a judgment of conviction on a plea of guilty or nolo
contendere.
title="">[1] Issues cognizable on appeal following a plea
of nolo contendere are limited to issues based on “reasonable constitutional,
jurisdictional, or other grounds going to the legality of the proceedings
resulting in the plea” (§ 1237.5, subd. (a); In re Troy Z. (1992) 3 Cal.4th 1170, 1180 (Troy)), and even then only if a certificate of probable cause is
obtained. (§ 1237.5, subd.
(b).) The reason for this rule is that
“‘“a plea of guilty admits all matters essential to the conviction.”’” (Troy,
supra, 3 Cal.4th at p. 1181.) Thus,
a guilty plea waives any right to raise questions regarding the admissibility
of evidence. (People v. Thurman (2007) 157 Cal.App.4th 36, 43 (
116, 125, cited with approval in People
v. Kelly (2006) 40 Cal.4th 106, 122, fn. 4 [“‘[A] plea of guilty waives any
right to raise questions regarding the evidence, including its sufficiency or
admissibility, and this is true whether or not the subsequent claim of
evidentiary error is founded on constitutional violations’”].)
In this appeal, Davis challenges the
admission of evidence of his prior uncharged sexual offenses on several
grounds. However, by entering a plea of
nolo contendere, Davis has admitted all matters essential to the conviction,
including that his guilt was supported by admissible and sufficient
evidence. Thus, he gave up any right to
challenge the admissibility of evidence when he entered his plea, even
challenges predicated on alleged constitutional violations.
Davis contends, however, that the
trial court’s promise at the Marsden hearing
to sign a certificate of probable cause regarding the section 1108 ruling led
him to believe that the ruling would be reviewed by the Court of Appeal. Regardless, the trial court’s issuance of a
certificate of probable cause on the section 1108 issue did not render that
issue appealable, because “[a]n issue which is not cognizable on appeal
following a guilty plea cannot be made cognizable . . . by the issuance of a
certificate of probable cause.” (
43; see People v. Hayton (1979) 95
Cal.App.3d 413, 416.)
Davis contends that he would have
filed a motion to withdraw his plea had the trial court not assured him that it
would sign the certificate. But nothing
in the record substantiates the assertion.
Davis was not induced to abandon any motion to withdraw his guilty plea
by the court’s promise to sign a certificate of probable cause. The court invited Davis to file such a
motion, based on Davis’ representation that he did not understand the calculation
of the credits towards his sentence.
Neither Davis nor his counsel indicated he intended to file such a
motion, and instead, Davis’ counsel requested that the court issue the
certificate of probable cause. Neither
Davis nor his attorney suggested that the plea was induced in any way by the
misapprehension that the section 1108 ruling could be appealed, or that Davis
would not have entered the plea had he known the ruling could not be challenged
following his plea. In short, Davis’
appeal must be dismissed.
disposition
The
appeal is dismissed.
WILLHITE,
J.
We
concur:
EPSTEIN, P. J.
SUZUKAWA, J.
name="_ftn1" title="">[1] Section
1237.5 provides: “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.” (Pen. Code, § 1237.5.)
