P. v. Rowe
Filed 1/14/13 P.
v. Rowe CA2/5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
WENDELL ROWE,
Defendant and Appellant.
B238752
(Los Angeles County
Super. Ct. No.
KA093812)
APPEAL
from a judgment of the Superior Court of
County.
George Genesta, Judge. Affirmed as modified.
Kevin
D. Sheehy, 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, Senior Assistant Attorney General, Yun K. Lee and
Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
_______________
Appellant Wendell Rowe was
convicted, following a jury trial, of one count of making
Code section 422,
title="">[1]
one count of corporal injury to a cohabitant in violation of section 273.5,
subdivision (a) and one count of kidnapping in violation of section 207,
subdivision (a). The trial court found
true the allegations that appellant had suffered two prior serious felony
convictions within the meaning of section 667, subdivision (a) and the
"Three Strikes" law (§§ 667, subds. (b)-(i) & 1170.12), and had served
prison terms for those convictions within the meaning of section 667.5,
subdivision (b). The trial court
sentenced appellant to 25 years to life on the kidnapping conviction, pursuant
to the Three Strikes law, plus two consecutive 5-year enhancement terms
pursuant to section 667, subdivision (a) plus a 1-year term pursuant to section
667.5, for a total term of 36 years to life in
Facts
From
October 2010 to February 2011, appellant and Jane Doe lived together as
roommates, and shared a bed. At one
time, they had had a sexual relationship, but on February 11, 2011, they were sharing a room in a house for financial reasons
only.
On February 11,
Jane was home with appellant. She
received a picture text message on her cell phone from appellant's daughter's
mother, Beverly. Jane and Beverly were
friends. Appellant asked to see the
message, but Jane refused. Appellant
asked how he could know that the message was from Beverly if Jane
would not let him see it. An argument
ensued. Eventually, appellant said that
he was going to call Beverly to see if she sent the message.
Jane said, "Whatever."
About four or
five hours later, about 7:30 p.m., appellant brought up
the text message again. Jane said that
she did not want to talk about it, and was going to the Arco to buy cigarettes.
Jane left the
house and began walking to Arco. She
noticed appellant driving his car down the same street. He stopped the car at a stop light, got out
and blocked Jane. Appellant told her to
get in the car and he would take her to the Arco to buy cigarettes. Jane said that she wanted to walk. Appellant got mad and began yelling and
"cussing." He said,
"Bitch, I told you I'm tired of your motherfucking ass. Get your ass in the car. I'm going to kill you today." Jane told appellant to move. He grabbed her, dragged her to the car and
forced her into the front passenger seat.
Jane was
afraid. She had never seen appellant this
angry before, and feared he had "snapped" and would try to kill
her. She did not think that appellant
had been drinking or taking any medicine.
As he drove,
appellant kept repeating his threat to kill Jane. Jane tried to get out of the car, but appellant
kept grabbing her and hitting her.
Appellant drove into a dead-end alley.
He said, "I should run this car into the building and kill both of
us." He got out of the car, came
around to the passenger side of the car, pulled Jane out and started choking
her. She stabbed at him with a pen. Appellant slammed her against the car and hit
her. He then threw her back into the car
and told her that the next time she saw her children would be at her
funeral. Appellant then resumed
driving.
As the car went
near a police station, Jane tried to jump out.
She was hampered by her seat belt.
Appellant grabbed the hood of her jacket. The lower part of Jane's body was outside the
car, however. Appellant continued to
drive, dragging Jane's body on the ground.
Appellant
stopped the car to pull Jane back inside.
Jane's escape attempt had been observed by Michael Doherty and his wife,
who were driving in the area. Doherty
drove his car next to appellant's and told appellant to pull over and
stop. Appellant eventually stopped the
car, and Doherty got out of his car and went to appellant's car.
Jane broke free
and ran toward the police station, yelling, "He's trying to kill
me." Appellant got out of his car
and looked at Doherty, who felt threatened.
Doherty punched appellant in the face.
Appellant said, "Oh, shit.
Let me get my gun." Doherty
ran to his car and drove away.
Doherty
eventually reached the police station.
There, he saw Jane. She pointed
at him and identified him as the man who had helped her.
The dragging
portion of the incident was also observed by Sebastian Popovic, a pedestrian in
the area.
Jane was taken
to the hospital, where she was treated for injuries to her neck, chest and
knees.
Discussion
1. Motion for continuance
Appellant
contends that the trial court abused its discretion in denying his motion for a
continuance, made pursuant to section 1050, and that this error violated his
state and federal constitutional rights
to due process. Appellant's counsel
sought the continuance to investigate "new information" which she had
just discovered.
A continuance in
a criminal case "shall be granted only upon a showing of good
cause." (§ 1050, subd. (e); see
also People v. Doolin (2009) 45
Cal.4th 390, 450.) A trial court has
broad discretion to determine whether good cause exists to grant a
continuance. (People v.
1037.) "The court must consider
'"'not only the benefit which the moving party anticipates but also the
likelihood that such benefit will result, the burden on other witnesses, jurors
and the court and, above all, whether substantial justice will be accomplished
or defeated by a granting of the motion.'"' [Citation.]" (People
v. Doolin, supra, 45 Cal.4th at p. 450.)
"While a
showing of good cause requires that both counsel and the defendant demonstrate
they have prepared for trial with due diligence [citation], the trial court may
not exercise its discretion 'so as to deprive the defendant or his attorney of
a reasonable opportunity to prepare.'
[Citation.]" (
circumstances of each case and the reasons presented for the request to
determine whether a trial court's denial of a continuance was so arbitrary as
to deny due process. [Citation.] Absent a showing of an abuse of discretion
and prejudice, the trial court's denial does not warrant reversal. [Citation.]" (Ibid.)
Here,
appellant's trial counsel, who worked for the public defender's office, filed a
motion to continue on July 29, 2011, three days before the scheduled trial date
of August 1. The public defender's
office had had appellant's case since late April. The preliminary hearing in this matter was held
on May 5.
Counsel
explained in her declaration that she had just received material from the
archived case file for appellant's 1987 prior conviction in case number
A707994. The probation report showed
that appellant "suffered from serious mental health problems including
schizophrenia and had been hospitalized and medicated several times throughout
the years" and suffered from "cognitive deficits" as well. She asked for a continuance to gather the
mental health records referenced in the probation report and to have appellant
"evaluated to determine the extent of his illness and to what extent, if
any, this . . . illness bears upon his mental state at the time of the
crime."
At
the hearing on the motion, appellant's counsel stated that she believed that
her motion was pretty specific and that the attachment backed up the
motion. When the court pointed out the
information in the motion came from 1987, counsel argued that
"schizophrenia doesn't go away."
She noted that appellant was on medication in 1987 but "[a]t this
time I don't know if he's on his medication."
The
trial court denied the motion. The court
stated: "Your office has had this
case since April 25th. You've had two
different attorneys on this matter. You
have done the preliminary hearing. It's
60 of 60 for trial today. You filed a
1050 with some background information from a 1987 probation and sentencing
report. Based upon that and your present
argument, I do not find good cause to continue this matter at this time. Your 1050 is denied."
Even
assuming for the sake of argument that the trial court abused its discretion in
denying the motion for a continuance, there is no showing of prejudice
whatsoever on the record before us. (See
People v. Doolin,
U.S. 18, 24.)
As
the trial court pointed out, counsel was relying on a probation report which
was almost 25 years old. It showed, at
most, that appellant was diagnosed with schizophrenia in 1987. Appellant was investigated, arrested and
jailed in this matter in 2011. There is
nothing in the record to show that police or jail officials suspected mental
illness. There is nothing in the record
indicating that appellant had any difficulties in pre-trial court proceedings. Counsel apparently saw nothing in appellant's
behavior suggesting mental illness, since she represented to the court that
"I could not have anticipated finding this information at the last
minute."
Appellant argues
on appeal, as he did in the trial court, that schizophrenia does not go
away. Appellant may well be correct, but
there is no evidence in the record to suggest that appellant's schizophrenia
played any role in his actions on the day of the offenses.
Appellant argues
on appeal that the victim's testimony is evidence that schizophrenia played a
role in his behavior on the day of the crime.
He points out that the victim testified that she had never seen
appellant act this way before and he had apparently "snapped." Appellant speculates that he could have been
on medication before the offenses and then stopped taking the medication on the
day of the offenses, resulting in his unusual behavior that day. This theory was not advanced in the trial
court, and there is no evidence to support appellant's speculation about
medication.
title="">[2] Further, in light of the facts actually
presented in the trial court, the victim's testimony could equally be
understood as showing that appellant did not have a long-standing mental
illness. Appellant apparently behaved
perfectly normally for a period of time, and his violent behavior was out of
the norm.
Appellant also
points out that the probation report indicates that he has cognitive
deficits. There is no evidence of such
deficits in appellant's behavior at the time of trial. At the hearing on his Marsden motion, for example, the court stated that if appellant
took a plea agreement, he would have to do 80 percent of the time. Appellant said that he thought it would be 85
percent. Both the court and counsel
agreed that the requirement could be 85 percent on some of the counts against
appellant.
Finally, the
only prejudice identified by appellant is the abstract possibility that an
examination by a mental health professional might have given him a basis for a
plea of not guilty by reason of insanity.
As appellant acknowledges, such a plea requires a showing that at the
time the offenses were committed, appellant was "incapable [either] of
knowing or understanding the nature of his act or of distinguishing right from
wrong." (People v.
520.) This incapacity must be due to
"a defect of reason, from disease of the mind." (People
v. Skinner (1985) 39 Cal.3d 765, 773, 777.) If appellant made a claim to counsel that he
did not believe what he did was morally wrong, or he did not remember his acts,
counsel should have investigated his mental health sooner. If he did not make such claims to his
counsel, there is no reason to believe that he would make them to a mental
health professional. Thus, counsel did
not show that there was a reasonable chance that a continuance would have
resulted in support for an insanity plea.
2. Presentence custody credits
Appellant
contends that the trial court incorrectly set his presentence custody credits
at 271 days of actual custody, plus 40 days of conduct credit for a total of
311 days. He contends that he had 273
days of actual custody, for a total of 313 days. Respondent agrees. We agree as well.
The
probation report shows that appellant was arrested on April 21, 2011. He was sentenced on January 18, 2012. That amounts to 273 days. There is no change in the number of conduct credit
days.
The
abstract of judgment must be corrected to show these figures. (§ 2933.1; see generally People v. Acosta (1996) 48 Cal.App.4th 411, 427-428 & fn. 8;
1135, 1139.)
3.
Section 667.5 enhancements
Respondent
contends that the trial court found true two section 667.5 prison term
allegations, but only imposed one at sentencing, and that this matter must be
remanded to the trial court for resentencing.
We do not agree.
Appellant's
conviction in case number MA023503 involved a serious felony within the meaning
of section 667, subdivision (a).
Appellant also served a prison term for that conviction within the
meaning of section 667.5. In such
situations, the trial court may impose only the section 667, subdivision (a)
five-year enhancement term. The section
667.5 one-year enhancement term may not be imposed. (See People
v. Jones (1993) 5 Cal.4th 1142, 1144-1146, 1150, 1153.) Thus, the trial court acted correctly.
To
avoid any future misunderstanding, the section 667.5, subdivision (b)
allegation as to case number MA023503 is ordered stricken.
Disposition
The
judgment is corrected to reflect that appellant has 273 days of actual custody
and 40 days of conduct credit for a total of 313 days of custody credit. The section 667.5, subdivision (b) allegation
in case number MA023503 is ordered stricken.
The clerk of the superior court is instructed to prepare an amended
abstract of judgment reflecting these changes and to deliver a copy to the
respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG,
J.
We concur:
TURNER, P. J. MOSK, J.
references are to the Penal Code unless otherwise indicated.
of that fact, and could have informed his counsel. This was not information which could only be
found in a 25-year-old file.
