P. v. Fairman

Filed 12/9/08 P. v. Fairman CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

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Charged with an open count of murder, defendant Allen Deshaun Fairman entered a negotiated plea of guilty to second degree murder (Pen. Code,  187, subd. (a); undesignated section references are to this code) and admitted he personally used a firearm ( 12022.53, subd. (b)) in exchange for dismissal of the remaining allegations [ 12022.53, subd. (d) (25 to life);  12022.53, subd. (c) (20 years);  12022.5, subds. (a)-(d)] with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. Sentenced to an indeterminate term of 15 years to life for second degree murder plus a determinate term of 10 years for the firearm use, defendant appeals contending the prosecutor violated the plea agreement and counsel rendered ineffective assistance. Defendants contentions lack merit and we will affirm the judgment.

FACTS^[1]

On February 25, 2006, defendant shot Kevin Kimble in the back of the neck at close range, killing him. Defendant fled. He was arrested in Oregon more than a month later. Having waived his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694], defendant claimed that he had attended a party and consumed a lot of alcohol, ingested marijuana, and took one-and-one-half Ecstasy pills. He claimed that when he saw two of his people tussling with Kimble, he lost control, pulled out the .45-caliber gun he always carried and shot Kimble. He said he was sorry. About two weeks later when he was interviewed again, defendant claimed that during a fight, he had been hit with a machete. He explained he had thrown the gun into the bay after dismantling it and fled to Oregon with his girlfriend and children.

Law enforcement pieced together the following story from several witnesses at the scene. Defendant went to Chico to recruit members into LOC which stands for Locd Out Crips. Defendants brother Lonnie (Tone), defendant, and a couple of others partied at a club where Kimble was also present. Kimble claimed he was a Blood and called Lonnie a Blood. Lonnie had a weapon and said, I am gonna get this [n----], Im gonna shoot this slob [n----] from Chico. At some point, defendant and Kimble went separately with their respective friends to the Old Elks Lodge in Oroville where there was a party of 50 to 70 people. At the Elks Lodge, Kimble and his friends continued to yell Blood and argued with a group of youngsters from Chico. Kimbles friend claimed that she convinced Kimble to leave but he returned to the party to locate his cell phone when he discovered it was missing. She later said that Kimble returned to retrieve some missing marijuana which he was selling. Kimbles roommate heard someone tell Kimble that there were people from Marysville with guns and Kimble replied, I dont give a shit. Another witness said an argument with the youngsters escalated into a fight. Kimbles roommate reported that he was knocked out during the fight and he did not hear gunshots. One witness reported that Kimble intervened in the fight to help a youngster from Richmond. Ten people jumped Kimble who was pushed against a car, Kimble bent over, trying to protect himself and shots were fired. The crowd dispersed and Kimble was on the ground bleeding and unconscious. A witness identified defendant as the shooter. Tone, defendants brother, told another witness that defendant shot Kimble. Kimbles jacket was taken off of him after the shooting but was later retrieved. The jacket had a hole in the middle of the back and blood stains inside and out. Five cartridge cases all fired from the same weapon were found at the scene. Kimbles blood alcohol content was .20 percent and showed signs of marijuana use.

The gun that killed Kimble was later reportedly found intact in San Jose. The person who possessed it claimed he bought it on the streets.

When defendant entered his plea, he stipulated that there was a factual basis for the plea. He agreed that the court could take the facts from the probation and police reports and other sources necessary for the factual basis. After defendant entered his plea, the prosecutor notified the court and counsel that there would be members of Kimbles extensive family who wished to speak at sentencing and asked for a special set for two to three hours. Defense counsel voiced no objection.

On the date scheduled for sentencing, the prosecutor filed her statement of views ( 1203.01).^[2] At the sentencing hearing, defense counsel voiced no objection to the prosecutors filed statement which we set forth in an appendix.^[3]

At sentencing, the court commented that the courtroom was full, full to busting and later noted that there were roughly a hundred people. The prosecutor requested permission to film [the victim impact] statements, specifically for preservation for a parole hearing 25 years hence. Defense counsel objected but cited no authority and made no argument. The trial court granted the prosecutors request. The following people made statements: the victims mother Judy Johnson; his sister Kellisha Terrell; his daughters mother Erica Blanch; his uncle Myron Johnson; his aunt Beatrice Johnson; his aunt Kathy Johnson; his aunt Willa Anderson; his uncle Pastor Kevin Thompson; his cousin Dr. Clifford Thompson, who also read a letter from a pastor at a church where some of the victims family members attended, and a letter from his cousin Cherish Thompson; his aunt Christine Johnson; his sister-in-law Mia Washington; his niece Miesha Kimble; his girlfriend Sabrina Schafer; family friend Teresa Wyatt; his best friend Chris Rockwell; Jamie Bennett who read a letter from the victims cousin Phyliss Lang; his cousin Shannon Smith, who also read a letter from his cousin Reuben Dossman; and extended family member Elise Waller. They portrayed the victim as a family-oriented man, a role model, a football coach, and someone who helped troubled youth, and who started a daddy of the year contest with friends. Defense counsel did not object to any particular persons statement or the persons right to make the statement.

DISCUSSION

Defendant contends the prosecutor violated defendants right to due process and the plea agreement by submitting her views that the murder was an execution-style, gang-related slaying and by videotaping statements by the victims family for use at a future parole hearing. He also contends that counsel rendered ineffective assistance in failing to object to the prosecutors actions and in failing to object to statements by nonfamily members.

Defendants failure to raise a timely and specific objection in the trial court to the prosecutors statement of views and to particular people making victim impact statements forfeits defendants challenges on appeal. Defendants failure to articulate his reasons for his objection to the videotaping of the victim impact statements waives defendants challenge on

appeal. (People v. Scott (1994) 9 Cal.4th 331, 351-352, 356; People v. DeSoto (1997) 54 Cal.App.4th 1, 9; People v. Jones (1992) 10 Cal.App.4th 1566, 1574.) We reach the merits, however, because defendant raises ineffective assistance of counsel.

To establish ineffective assistance of counsel, defendant must demonstrate that counsels performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Defense counsels determination whether to object is a tactical decision which is entitled to substantial deference [failure to object seldom establishes counsels incompetence]). (People v. Majors (1998) 18 Cal.4th 385, 403.) Where the record sheds no light on the reason for counsels omission, we affirm unless counsel was asked for and failed to provide a satisfactory explanation or where there is no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)

Defendant has failed to demonstrate that counsels performance was deficient in failing to object to the prosecutors statement of views submitted pursuant to section 1203.01. A prosecutors statement is authorized by statute. Defendant does not cite a specific provision in the plea agreement which barred the prosecutor from filing such a statement. Instead, defendant argues there was an implied agreement that the prosecutor would not seek to maximize the sentence or to deprive defendant of the benefit of his guilty plea. Defendant relies upon the following provisions in the agreement:

28. I do understand that the matter of probation and sentence is to be determined solely by the superior court judge.

29. (Harvey Waiver) I stipulate that the sentencing judge may consider my prior criminal history and the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations or cases when granting probation, ordering restitution or imposing sentence.

Citing California Code of Regulations, title 15, section 2402, he notes that one of the factors tending to show unsuitability for parole is that [t]he offense was carried out in a dispassionate and calculated manner, such as an execution-style murder. (Italics omitted.) Because the Board of Parole Hearings (Board) considers all statements including that of the prosecutor ( 3046, subd. (c)) and victim impact statements ( 1191.16, 3042, subd. (f), 3043.2, subd. (a)), defendant argues that the prosecutors filed statement of views and videotaping of victim impact statements was intended to influence the Board, violating the term of the agreement that the sentence was to be determined solely by the trial court not the Board.

We simply disagree with defendants argument that an implied term of the plea agreement barred the prosecutors statement of views. In interpreting a plea agreement, the contract law paradigm is used. First, we look at the words used in the agreement to determine the parties intent. And second, we seek to carry out the parties reasonable expectations. (People v. Nguyen (1993) 13 Cal.App.4th 114, 120; People v. Knox (2004) 123 Cal.App.4th 1453, 1458-1459.)

Defendant entered a plea to an offense which carried a life term subject to parole eligibility in 15 years. Defendant also admitted a firearm use enhancement which carried a determinate term of 10 years. The plea agreement provided that the trial court alone would determine the sentence. The trial court imposed an indeterminate term of 15 years to life and a determinate term of 10 years. The judge alone imposed sentence. Defendant received the bargained-for sentence. Parole is a separate matter and is not determined by the sentencing judge but instead by the Board. ( 3041; In re Rosenkrantz (2002) 29 Cal.4th 616, 683.) While denial of parole based upon the nature of the offense alone might rise to a level of a due process violation . . . [and] would be inconsistent with the statutory requirement that a parole date normally shall be set (id. at p. 683), a due process claim at this juncture is premature.

[T]he Boards denial of parole based solely on the nature of the commitment offense [may be an abuse of discretion and overturned] if (1) a significant period of time has passed since the crime, (2) there is uncontroverted evidence of the inmates rehabilitation, and (3) the crime was not committed in such an especially heinous, atrocious, or cruel manner so as to undermine the evidence that the inmates rehabilitative efforts demonstrate he no longer would be a danger to society if released on parole. (In re Singler (2008) 161 Cal.App.4th 281, 301.)

Defendant claims that he entered into this agreement because it offered at least the possibility that he would be released on parole before his death, considering that he was 31 years of age at the time of the plea and suffered from high blood pressure, and that the possibility of an earlier parole was, obviously, the most significant factor motivating the guilty plea. (Italics added.) Defendant faced first degree murder which carried a 25-year-to-life term as well as a 25-year-to-life term for firearm use. Based on defendants plea to lesser charges, parole is a possibility after defendant serves the determinate term of 10 years and at least 15 years of the indeterminate term and, in entering into the plea agreement, defendants expectation of the possibility of parole after such time was reasonable. The agreement allows for no interpretation for an earlier parole release date and defendants expectation of the same is unreasonable.

We reject defendants implied argument that the prosecutors views dictate the Boards determination. The plea agreement did not prohibit, expressly or impliedly, the prosecutor from attempting to influence the Board by way of a statement of views pursuant to section 1203.01 or otherwise; by filing a statement, the prosecutor did not violate the plea agreement. Section 1203.01 permitted defense counsel to likewise file a statement of his views of defendant and the crimes he committed. No such statement was filed. Defendant does not argue counsels performance was deficient in failing to file the same. The prosecutors filed statement of views simply expanded upon the factual basis stated in the probation report. The prosecutor relied upon police reports and investigation reports. In entering his plea, defendant agreed that the court could consider the facts from the probation reports, police reports, and other sources. Defendants complaint seems to be with the prosecutors conclusion, that is, defendant deliberately took Kevin Kimbles life by delivering an execution style shot through the back of Kimbles neck while fellow gang members had Kimble pinned against a car, rendering him defenseless and did so because defendant believed that Kevin Kimble was associated with a rival gang. The prosecutors conclusion amounts to her interpretation of the facts as recounted in police reports, written statements, and investigative reports. Anyone else reading the probation report could easily reach the same conclusion.

Defendant has failed to demonstrate that defense counsels performance was deficient in not objecting to the prosecutors filed statement of views. With respect to the videotaping of the victim impact statements, we can say the same.

Section 1191.1 provides, in relevant part, as follows:

[T]he next of kin of the victim if the victim has died, have the right to attend all sentencing proceedings under this chapter and shall be given adequate notice by the probation officer of all sentencing proceedings concerning the person who committed the crime. [] . . . [T]he next of kin of the victim if the victim has died, have the right to appear, personally or by counsel, at the sentencing proceeding and to reasonably express his, her, or their views concerning the crime, the person responsible, and the need for restitution. The court in imposing sentence shall consider the statements of . . . next of kin made pursuant to this section and shall state on the record its conclusion concerning whether the person would pose a threat to public safety if granted probation.

Section 1191.16 provides, in relevant part, as follows:

[T]he next of kin of the victim if the victim has died, who choose to exercise their rights with respect to sentencing proceedings as described in Section 1191.1 may, in any case where the defendant is subject to an indeterminate term of imprisonment, have their statements simultaneously recorded and preserved by means of videotape, videodisc, or any other means of preserving audio and video, if they notify the prosecutor in advance of the sentencing hearing and the prosecutor reasonably is able to provide the means to record and preserve the statement. If a video and audio record is developed, that record shall be maintained and preserved by the prosecution and used in accordance with the regulations of the Board of Prison Terms at any hearing to review parole suitability or the setting of a parole date.

Misplacing his reliance upon Probate Code sections 6401, 6402, and 21114, defendant argues that Kimbles next of kin include at most his registered domestic partner, children or parents but not his aunts, uncles, cousins, and friends. He claims defense counsel rendered ineffective assistance in failing to object to the non-next of kins statements and the videotapes of the same should be destroyed.

Neither section 1191.1 nor section 1191.16 defines next of kin. Section 1191.1 requires that the victim or a family representative be notified of all sentencing proceedings and be given an opportunity to appear and express views concerning the crime. The statute mandates that the court consider the victims statements. [Citation.] The statute restricts the number of individuals a court must hear; it does not restrict the number of individuals a court may hear. [Citation.] The obvious rationale for limiting the scope of the right to be heard is to protect against overburdening the court. The court remains free, however, to exercise its discretion to hear and consider additional witnesses where appropriate. [Citation.] (People v. Mockel (1990) 226 Cal.App.3d 581, 586 [original italics]; People v. Arbuckle (1978) 22 Cal.3d 749, 754; People v. Zikorus (1983) 150 Cal.App.3d 324, 328-332 (Zikorus).) [T]he main thrust of [section 1191.1] was to expand the rights of victims, not to restrict the scope of judicial inquiry into sentencing alternatives. (Zikorus, supra, at p. 330.) [S]ection 1191.1 was not intended to change common law and limit information a sentencing court may consider in imposing judgment. (Id. at p. 332.) Section 1191.1 permits the victim to be heard [and] [t]he court has the discretionary power to

hear and consider additional witnesses if appropriate. (Ibid; see also People v. Williams (2006) 40 Cal.4th 287, 306, fn. 4; People v. Brown (2003) 31 Cal.4th 518, 573, fn. 24.)

That the sentencing court has the discretion to permit extended family members and friends to make statements on behalf of the victim, so too does the sentencing court have the discretion to permit the videotaping of such statements. Under section 1191.16, videotaping is authorized where the victim has died and defendant is subject to an indeterminate term of imprisonment, the next of kin requests it, and the prosecutor is able to accommodate the request, all of which applies here. Defendants objection is, again, to the people he argues are not next of kin. If the trial court did not abuse its discretion in allowing the person to speak in the first instance, it cannot be an abuse of discretion to permit the videotaping of the same. We see no reason to interpret the next-of-kin language in section 1191.16 differently than that in section 1191.1. No express or implied provision of the plea agreement prohibited the videotaping of the statements. Defendant has failed to demonstrate that defense counsels performance was deficient in failing to object to the videotaping of the statements of the victims uncles, cousins, aunts and friends. Further, we find no due process violation in that there was no abuse of discretion by the sentencing court and no violation of the plea agreement by the prosecutor.

DISPOSITION

The judgment is affirmed.

MORRISON , J.

We concur:

BLEASE , Acting P.J.

SIMS , J.

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^[1] The facts are taken from the probation report and supplemental probation report.

^[2] Section 1203.01 provides: Immediately after judgment has been pronounced, the judge and the district attorney, respectively, may cause to be filed with the clerk of the court a brief statement of their views respecting the person convicted or sentenced and the crime committed, together with any reports the probation officer may have filed relative to the prisoner. The judge and district attorney shall cause those statements to be filed if no probation officers report has been filed. The attorney for the defendant and the law enforcement agency that investigated the case may likewise file with the clerk of the court statements of their views respecting the defendant and the crime of which he or she was convicted. Immediately after the filing of those statements and reports, the clerk of the court shall mail a copy thereof, certified by that clerk, with postage prepaid, addressed to the Department of Corrections at the prison or other institution to which the person convicted is delivered. Within 60 days after judgment has been pronounced, the clerk shall mail a copy of the charging documents, the transcript of the proceedings at the time of the defendants guilty plea, if the defendant pleaded guilty, and the transcript of the proceedings at the time of sentencing, with postage prepaid, to the prison or other institution to which the person convicted is delivered. The clerk shall also mail a copy of any statement submitted by the court, district attorney, or law enforcement agency, pursuant to this section, with postage prepaid, addressed to the attorney for the defendant, if any, and to the defendant, in care of the Department of Corrections, and a copy of any statement submitted by the attorney for the defendant, with postage prepaid, shall be mailed to the district attorney.

^[3] The prosecutors statement is attached as Appendix A.