P. v. Kamka
Filed 8/16/12 P. v.
Kamka 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NOT
TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
RICHARD EDWARD KAMKA,
Defendant and Appellant.
C064560
(Super. Ct. Nos. CM022965, CM023797,
CMO24029)
Defendant Richard Edward Kamka
pleaded no contest in case No. CM022965 (case 965) to making criminal
threats. In addition, a jury convicted
defendant in case No. CM023797 (case 797) with failure to appear,
substance, and resisting an officer.
The jury found on-bail enhancement and prior strike allegations
true. Moreover, in case No. CM024029
(case 029), a jury convicted defendant of stalking. The trial court found on-bail enhancement and
prior strike allegations true.
The trial court
subsequently sentenced defendant to an aggregate prison term of 11 years 4
months.
Defendant now
contends (1) the trial court abused its discretion in denying defendant’s
because at the time the trial court denied the motion it was “reasonably aware”
that defendant’s mental state was questionable; and (2) the criminal threats
conviction in case 965 could not serve as a prior strike conviction in case 029
and case 797 because defendant was sentenced in all three cases on the same day.
We conclude (1)
defendant forfeited the issue of his mental state in connection with his plea
in case 965 because he did not raise the issue as a ground for withdrawal of
the plea in the trial court; and (2) consistent with this court’s holding in
838 (Queen), defendant’s criminal
threats conviction in case 965 could properly serve as a prior strike
conviction in case 029 and case 797.
BACKGROUND
In July 2005
defendant pleaded no contest in case 965 to making
sentencing.
In September 2005
in case 797, defendant was charged with failure to appear (§ 1320, subd. (b)),
possession of a controlled substance (Health & Saf. Code, § 11350, subd.
(a)), resisting an officer (§ 148, subd. (a)(1)), and prowling (§ 647, subd.
(h)). It was also alleged that he failed
to appear while released on bail or on his own recognizance. (§ 12022.1.)
On November 3, 2005, defendant filed a
965. The trial court denied the
motion.
Defendant was also
charged in case 029 with stalking.
(§ 646.9, subd. (c)(1).)
Defendant entered
pleas of not guilty by reason of insanity in case 797 and case 029. Doctors were appointed to examine
defendant. Meanwhile, the People filed
an information in case 797 and case 029, charging that defendant’s conviction
for making criminal threats in case 965 was a prior strike conviction.
The trial court
ordered defendant committed to the Department of Mental Health on May 24, 2006. On September
9, 2009, the trial court found defendant competent to stand trial
and reinstated criminal proceedings.
In case 797, a
jury found that defendant was not insane at the time of the charged offenses,
and found him guilty of failure to appear, unlawful possession of a controlled
substance, and resisting an officer. The
trial court found the on-bail enhancement and prior strike allegations
true.
In case 029, a
different jury found that defendant was not insane at the time of the charged
offense and found him guilty of stalking.
The trial court found the on-bail and prior strike allegations true.
On February 24, 2010,
the trial court sentenced defendant to an aggregate prison term of 11 years 4
months as follows: (a) in case 029, six
years for stalking (the base term of three years doubled for a prior strike
conviction) plus two years for an on-bail enhancement; (b) in case 965, a
subordinate term of eight months for making criminal threats; and (c) in case
797, subordinate terms of one year four months for failure to appear and for
possession of a controlled substance (each consisting of eight months doubled
to 16 months because of a prior strike conviction). The trial court also imposed a concurrent
jail term for a misdemeanor resisting arrest conviction and stayed sentence for
the on-bail enhancements attached to the felony counts.
Defendant obtained
a certificate of probable cause.
DISCUSSION
I
Defendant contends
the trial court abused its discretion in denying defendant’s motion to withdraw
his plea in case 965, because at the time the trial court denied the motion it
was “reasonably aware” that defendant’s mental state was questionable.
Defendant moved to
withdraw his plea on the ground that it was not “knowingly, intelligently and
voluntarily entered into.” His motion
included a declaration explaining why the plea was involuntary. He said he entered the plea because he did
not want to make the victim testify. In
addition, he claimed defense counsel assured him he would be granted probation
and sentenced immediately, he would be free to travel between Nevada
and California without checking
with probation, and he should not worry about the specifics or consequences of
his plea.
The People’s
response to the motion included a declaration from defendant’s defense counsel
at the time of the plea essentially refuting defendant’s assertions. The parties submitted the motion to the trial
court without argument and the trial court denied the motion.
Defendant admits
that a doctor who conducted his psychological examination concluded that as of
July 28, 2005 (the day after defendant entered his plea in case 965) defendant
“did not suffer from a mental disease or defect such that he was incapable of
knowing or understanding the nature and quality of his acts or to distinguish
right from wrong.” Nonetheless, defendant
focuses on the doctor’s comment that defendant’s history suggests he was
“spiraling downward in his psychological state prior to August 2005, but the
psychosis did not seem to appear until August 2005.”
However, defendant
asserts this particular factual question regarding his mental state as a basis
for withdrawal of the plea for the first time on appeal. His contention is thus forfeited.
“It is well
settled that ordinarily an appellate court will not consider a theory not
raised at trial. [Citations.] ‘The general rule confining the parties on
appeal to the theory advanced below is based on the rationale that the opposing
party should not be required to defend for the first time on appeal against a
new theory that “contemplates a factual
situation the consequences of which are open to controversy and were not put in
issue or presented at the trial.”
[Citation.]’ . . . [Citations.]” (People
v. Johnson (2003) 30 Cal.4th 1302, 1330, italics added, reversed on other
grounds in Johnson v. California
(2005) 545 U.S. 162, 173 [162 L.Ed.2d 129, 141].)
Defendant did not
assert his mental competence
in his motion to withdraw his plea in case 965, even though, on the same day
the trial court denied the motion, defendant entered pleas of not guilty by
reason of insanity in case 797 and case 029.
As a result, the People and the trial court were never given the
opportunity to address the issue of defendant’s mental state in connection with
his plea in case 965. Consequently, the
issue is forfeited for appellate review.
II
Defendant also
contends the criminal threats conviction in case 965 could not serve as a prior
strike conviction in cases 029 and 797 because he was sentenced in all three
cases on the same day. He relies on
language in People v. Williams (1996)
49 Cal.App.4th 1632 (Williams), but
that case does not assist him here.
In
to residential burglary in a prior case, but before judgment was pronounced he
committed a second residential burglary.
(Williams, supra, 49
Cal.App.4th at p. 1637.) A subsequent
criminal case charged the defendant with the second burglary and asserted the
first burglary as a prior strike conviction.
(Ibid.) The defendant argued that because the second
burglary was committed before judgment was pronounced for the first burglary,
the trial court could not treat the first burglary as a prior strike
conviction. The defendant claimed “conviction”
under the three strikes law meant guilty by plea and judgment. (Williams,
supra, 49 Cal.App.4th at pp. 1637-1638.)
The Court of
Appeal in Williams disagreed,
observing that “when guilt is established, either by plea or verdict, the
defendant stands convicted and thereafter has a prior conviction.” (Williams,
supra, 49 Cal.App.4th at p. 1638.)
The court in
a prior offense is a ‘wobbler,’ a plea or verdict does not establish whether it
is a felony; rather the sentence does.
Thus, when the prior offense is a ‘wobbler,’ the phrase ‘prior
convictions’ must include the pronouncement of sentence because only then can
it be determined whether three strikes applies.” (Williams,
supra, 49 Cal.App.4th at p. 1639, fn. omitted.) Defendant quotes this statement in
criminal threats charge was a wobbler.
But he acknowledges that this court deemed that particular statement in
it. (Queen,
supra, 141 Cal.App.4th at p. 843.)
In
prosecutor after the jury found him guilty of making criminal threats, but
before sentencing. (Queen, supra, 141
Cal.App.4th at p. 842.) Defendant was
then charged with offenses arising out of the assault and with the prior
criminal threat convictions alleged as strikes.
Relying on the dictum in Williams,
the defendant contended the criminal threats convictions could not be
considered strikes because sentence had not been imposed for them at the time
he assaulted the prosecutor; the convictions, being wobblers, were still
subject to being treated as misdemeanors.
(Queen, supra, 141 Cal.App.4th
at p. 842.)
This court
rejected the Williams dictum because
it ran counter to the legislative intent behind the three strikes law as set
forth in section 667, subdivision (d)(1).
(Queen, supra, 141 Cal.App.4th
at p. 843.) Section 667, subdivision
(d)(1) provides in relevant part: “The
determination of whether a prior conviction is a prior felony conviction for
purposes of [the three strikes law] shall be made upon the date of that prior
conviction and is not affected by the sentence imposed unless the sentence
automatically, upon the initial sentencing, converts the felony to a
misdemeanor.”
Here, we follow
this court’s holding in Queen. Defendant stood convicted of a felony for
purposes of the three strikes law at the time of his plea. The trial court could only reverse this
determination by converting the crime to a misdemeanor at initial
sentencing. It did not. Accordingly, defendant’s
conviction under case 965 was a strike for purposes of the
three strikes law.
DISPOSITION
The judgment is
affirmed.
MAURO , J.
We concur:
ROBIE , Acting P. J.
BUTZ , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Penal Code.
