P. v. Groza

Filed 2/27/08 P. v. Groza CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

William Gordon Groza appeals from a final judgment entered after a guilty plea to a single count of corporal injury on a spouse or cohabitant. (Pen. Code,  273.5, subd. (a).)[1] His court-appointed counsel has filed a brief raising no legal issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.

FACTS[2]

On February 20, 2007(all subsequent dates are in that year), appellant and his victim, with whom he had cohabited for three years, left their home in Marshall to go shopping. On the way, they stopped at a bar in Fairfax where appellant drank four shots of tequila and had four beers during a period of three hours. The two then left the bar and went to a restaurant to buy hamburgers. When leaving, while appellant backed his truck out of his parking space, appellants truck was hit by a car. He got out of the truck to deal with the other driver. When the victim asked if the driver was a woman, appellant became angry and asked her to get out of the truck. She refused and appellant punched her several times in the face and head with both fists. She locked herself in the truck; he opened the door with his key. When she refused to get out he began kicking and hitting her, causing a laceration on her arm. Witnesses came to the victims aid and appellant got in the truck and drove away.

The victim told the police she was worried appellant was going to kill himself because he already had enough problems. She did not want him arrested, but wanted him to get help for his anger issues.

Appellants four prior offenses, in 1987, 1988, 1989 and 1992, were all for willful infliction of corporal injury of his then wife or a female companion.[3] Appellant was granted probation as a result of the first two domestic assaults, and was on probation at the time of the third assault. His probation was revoked and he was sent to prison. Upon release he violated a condition of parole and was returned to custody.

PROCEEDINGS BELOW

In addition to the offense to which he pled guilty, the information filed by the Marin County District Attorney on March 21 alleged two strike priors ( 667, subds. (b)-(i)) and that, due to several prior offenses, appellant was ineligible for probation ( 1203, subds. (e)(4) and (e)(6)).

On June 13, appellant filed a Marsden[4] motion, which was heard and denied on June 20.

On June 21, appellant submitted a written plea waiver form indicating his desire to enter a guilty plea to the charged offense, and also a separate written advisement regarding the use of three-strike priors. The plea waiver form indicated that the court would at sentencing dismiss one of the alleged strike priors and consider dismissing the second strike. The form also indicated appellants understanding that, as a result of his plea, he could be sentenced to [p]robation with up to 1 year jail if strike dismissed and court finds this unusual case under PC 1203(e)(4)[,] or 2, 3, or 4 years prison, or 4, 6, or 8 years prison with strike. That same day, appellant entered a guilty plea to the charged offense and admitted both alleged priors.

Defense counsel filed a statement in mitigation together with a motion to dismiss the strike priors ( 1385, subd. (a)). The statement was accompanied by letters in appellants behalf, including letters from Elizabeth Shaver, a licensed marriage and family therapist who had treated him, and Teena Scovis-Weston, a psychologist, both of whom believed he was amenable to treatment. Dr. Scovis-Weston, who visited appellant three times while he was confined at the Marin County Jail, diagnosed him as suffering from a bipolar disorder with a recent manic episode as well as post traumatic stress disorder, intermittent explosive disorder, and alcohol and substance abuse. According to Dr. Scovis-Weston, appellant is not an inherently violent or aggressive man, but the pattern of his addiction and emotional disconnection has had destructive consequences. He is already peripherally aware how his drug abuse and pattern of misconduct only worsen his self-hate and pattern of behavioral dysfunction. He insightfully speculated that he needs to break his dual-diagnostic cycle of dysfunction if he is to actively build a mature and functional lifestyle. His episodic pattern of drug and alcohol abuse embroiled dysfunctional means of avoiding his emotional states, and perpetuated [his] feelings of learned helplessness, or sense of personal futility, with regard to directing his own life events. [] The present criminal case is a potential turning point in his life. Although he admits this is not the first time he has displayed aggressive behaviors, the degree and dissociative nature of this last incident has left him completely stunned and terrified. This alarm is therapeutically productive in nature and increases his prognosis of treatment success because the fear has roots in his strong capacity for empathy and compassion. Dr. Scovis-Weston concluded that there is a high likelihood [appellant] would respond favorably to mental health care and treatment mandated as conditions of probation.

Family therapist Elizabeth Shaver emphasized the importance that [appellant] be treated for his dual diagnosis, not only drug addiction, but also the original conditions of Bi Polar Disorder and Post Traumatic Stress Disorder, which he self medicated through his addictions. She believed it would be extremely beneficial for him [to] be sentenced to a setting with a Dual Diagnosis Treatment program, especially with a cognitive/behavioral orientation, as he has responded so well to this approach with me in my class.

In a letter to the court, the victim stated that she did not consider herself a battered woman, and believed appellants offense was a one time occurrence. She would like to see [appellant] sentenced to probation with a stringent 1 to 2 year program based regimen with counseling on a daily basis (anger management, behavioral skills, AA, bible study).

At the sentencing hearing, the debate between counsel focused on whether the court, which had indicated it would strike one of appellants priors, should strike a second prior, as to which appellants plea reserved the courts discretion. The district attorney argued that while there was reason to strike one of appellants alleged priors, the second should not be stricken primarily because: (1) appellant had a number of past offenses in which prior strikes had been dismissed; (2) appellants present victim was particularly vulnerable due to her age (62) and the fact that she was seat-belted; (3) appellants assault took place in broad daylight and in the presence of others, which represented a big F you  to society and is more aggravated than the typical domestic violence that takes place in the house; and (4) the three prior offenses shown in the probation report all involved a dangerous or deadly weapon, and in one appellant threatened to kill his wife while in possession of a loaded firearm. The district attorney also claimed that defense counsels argument that appellants back pain was a mitigating factor was hogwash. Finally, the district attorney claimed that the victims request that appellant receive probation should be rejected because she did not know the details of appellants repeated prior assaults on his wife and a female companion.

Defense counsel argued that the second alleged prior should be dismissed in the interests of justice because (1) appellants mental state was impaired by his bipolar disorder and manic state; (2) his priors all took place within a short period of time when he was under heavy emotional stress; (3) all of them occurred more than 15 years earlier and he had not previously committed any criminal offenses; (4) the three-strikes law was not in effect when appellant entered pleas to his prior offenses, and defense counsel then had no incentive to negotiate a plea that would not prejudice him now; (5) the circumstances of the priors were not as egregious as the district attorney maintained, as the serious injuries appellants female companion sustained were primarily the result of an automobile accident; (6) at the time of the instant offense appellant was taking medication for severe back pain, which exacerbated the effect of alcohol, and he was also under great stress due to money worries and the burden of child support; and (7) appellant was currently responding well to his treatment regime in county jail and the therapists who knew him best both recommended probation with continuing therapy and medical treatment.

The trial court struck one of appellants priors (thereby eliminating the 25-years-to-life sentence that would otherwise apply), but declined to dismiss the second, reasoning that appellant, a 51-year-old man, was capable of punching and kicking another human being in a fashion that was not permissible treatment for a dog and seriously demeaned that person in a public place. The court attributed the victims forgiveness of appellant, which it found commendable, to her strength and religious convictions. However, despite the good work appellant had done while in jail and his good military service, the court nevertheless noted that this isnt just about you and me and [the victim]; its part of the big picture, and society needs to be convinced we are going to take seriously, seriously bad behavior. Emphasizing that the current ghastly incident followed three prior convictions for domestic violence and prior grants of probation, the court declined to strike the second offense, thereby rendering appellant ineligible for probation. Apparently because appellant had been free of crime during the immediately preceding 15 years, the court declined to aggravate the offense and applied the midterm. The court also imposed a restitution fine of $1,000 (and a parole revocation restitution fine in the same amount if that becomes important at some point), and a $20 court security fee.

DISCUSSION

An appeal after a plea of guilty can only be based on jurisdictional defects ( 1237.5), and our review of the record discloses none. During the period of time his plea and sentence (which the parties left open to the court) was negotiated with counsel and with the knowledge of the court, appellant was represented by able counsel. The record satisfactorily shows that appellant understood the rights he was giving up and the consequences of his plea, and that he entered his plea freely and voluntarily.

The sentencing discretion of the trial court is broad and disturbed by a reviewing court only if irrational or arbitrary. (See People v. Carmony (2004) 33 Cal.4th 367, 376.) The trial court was certainly aware it possessed discretion to dismiss the second prior (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), as defense counsel vigorously urged, and it exercised that discretion. The considerations that collectively persuaded the court not to dismiss appellants second prior in the interests of justice were all entirely proper.

There was no sentencing error.

There are no legal issues that require further briefing.

The judgment is affirmed.

_________________________

Kline, P.J.

We concur:

_________________________

Haerle, J.

_________________________

Lambden, J.

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A119418, People v. Groza

[1] All subsequent statutory references are to the Penal Code.

[2] The facts are those related in the probation report

[3] Apparently, the probation report was unclear whether appellants 1987 offense was prosecuted; if so, whether it was separate from the 1988 offense, and if prosecuted separately, whether it resulted in a conviction and prison commitment. At the sentencing hearing, appellants counsel appears to have agreed that the 1987 offense was prosecuted separately and did result in a conviction, and that appellant was committed to state prison for that offense at the time his probation was revoked for the 1992 offense.

[4]People v. Marsden (1970) 2 Cal.3d 118.