P. v. Laverdure
Filed 1/14/13 P.
v. Laverdure CA2/3
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
Robert Dean Laverdure,
Defendant and Appellant.
B241448
(Los Angeles County
Super. Ct. No.
KA096586)
APPEAL
from a judgment of the Superior Court of
County, Jack P. Hunt, Judge, and Wade D. Olson,
Commissioner. Affirmed.
California
Appellate Project, Jonathan B. Steiner and Richard B. Lennon, under appointment by the
Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
Robert
Dean Laverdure appeals from the judgment entered following his plea of no
contest to being a felon in possession of
a firearm (former Pen. Code, § 12021, subd. (a)(1))
and his admission that he previously had been convicted of robbery (Pen. Code,
§ 211)
title="">[2]
within the meaning of the Three Strikes law (§ 667, subds. (b)-(i),
§ 1170.12, subds. (a)-(d)). The
trial court sentenced Laverdure to two years eight months in prison. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
At
approximately 4:30 p.m. on November 8, 2011, Azusa Police
Officer Peter Hoh received a radio call directing him to 600 West Paramount Avenue. The dispatcher indicated
there was a man with a gun there.
When Hoh arrived
at the intersection, he saw Laverdure, who matched the description of the man
given by the dispatcher. He was not
wearing a shirt and had multiple tattoos.
His car was parked in a driveway approximately “50 yard[s] deep.†There was a house next to the driveway, not
far from Laverdure’s parked car and it appeared to Hoh that there were people
inside. As Hoh approached, he saw a man,
holding his shirt, as he was coming out of the house’s “converted garage.†It was a residential neighborhood and there
were children playing nearby, people arriving home from work and a school
approximately 200 yards from the house.
Two additional
police officers had also been directed to the intersection and one of them,
Officer Franks, saw Laverdure “popping out of the car by the driver’s
side.†Franks and the other officer,
Corporal Kimes, ordered Laverdure to get out of his car. He complied with the order, the officers
detained him and placed him in the back seat of a patrol car. Hoh then approached Laverdure, told him he
was being detained and, without advising him of his Miranda
title="">[4]
rights, told him that “ ‘if there [was] a gun in [his] car,’ †the
officers were “ ‘going to be able to find it. [So, he] might as well tell [them
then].’ †Laverdure responded, “
‘Yes. I have a gun[,]’ †and he
indicated that it was inside the car.
After Hoh spoke
with Laverdure, he, Officer Franks and Corporal Kimes approached his car with
their guns drawn as they did not know whether there was anyone else
inside. In plain view from outside the
passenger side window, Hoh could see a gun between the center console and the
front seat. The handle was up and the
barrel of the gun was pointing down. It
was later determined that the gun was a loaded “44 Magnum Ruger†handgun. The model was a “red hawk†or “red eye†and
the gun had a black handle and silver body.
After the gun
was found, Hoh returned to the patrol car where Laverdure was being held and,
after advising him of his rights under Miranda,
asked him if he understood his rights, then asked him if he wished to speak
with the officer. Laverdure indicated
that he understood his rights. However,
after agreeing to speak with Hoh, Laverdure decided to “stay[] quiet.â€
Laverdure was
transported to the police station, where Hoh again advised him of his
written form. Laverdure again indicated
that he understood his rights, but told the officer that “ ‘no,’ †he did not
wish to speak with him. In the meantime,
officers ran a “check†on Laverdure and determined that he was on parole.
2. Procedural history.
In an
information filed February 29, 2012, it was charged in count 1 that, on or
about November 8, 2011, Laverdure, a convicted felon, possessed a firearm in
violation of former section 12021, subdivision (a)(1)), a felony. It was further alleged with regard to count 1
that Laverdure previously had been convicted of six offenses, including robbery
in violation of section 211, and that “prison custody time for the above
offense [was] to be served in state prison.â€
Count 2 alleged that on or about November 8, 2011, Laverdure possessed ammunition in violation of former section
12316, subdivision (b)(1), a felony. It
was further alleged with regard to count 2 that Laverdure was “prohibited from
owning or possessing a firearm pursuant to [former] sections 12021 and
12021.1 . . . and sections 8100 and 8103 of the Welfare and
Institutions Code, having been previously convicted of†robbery in violation of
section 211 and receiving stolen property in violation of section 496,
subdivision (a).
As to both
counts 1 and 2, the information indicated that “an executed sentence for a
felony pursuant to [these] subdivision[s] [would] be served in state prison
pursuant to . . . section 1170[, subdivision] (h)(3) in that . .
. Laverdure, ha[d] suffered†a prior serious (§ 1192.7) or violent (§
667.5, subd. (c)) felony, robbery. In
addition, it was alleged that his prior conviction for robbery amounted to a
strike pursuant to the Three Strikes law.
The information also alleged that, due to Laverdure’s prior convictions
he was ineligible for probation (§ 1203, subd. (e)(4)) and that, for five of
the six priors, he had served prison terms pursuant to section 667.5, subdivision
(b).
At proceedings
held on March 7, 2012, Laverdure rejected the People’s settlement offer of four
years in prison, entered pleas of not guilty to the crimes alleged in
counts 1 and 2 and denied the remaining allegations.
On April 12,
2012, Laverdure filed a motion to suppress evidence pursuant to section
1538.5. He asserted that the law
enforcement officers had illegally seized the
firearm on November 8, 2011 and that it, and any evidence stemming from
it, should be suppressed. Laverdure argued
that he had been detained and, without the benefit of Miranda warnings, had been questioned regarding a gun. Then, based on evidence obtained in violation
of Miranda, the officers had found
the gun pursuant to a warrantless search of Laverdure’s car. The trial court, however, never ruled on the
motion to suppress evidence. The motion was
withdrawn the following day, on April 13, 2012, when Laverdure decided to enter
a plea.
On April 13,
2012, the parties informed the court that Laverdure’s counsel “ha[d] been able
to work . . . out a disposition or a deal for 32 months [in] state
prison.†Laverdure indicated that he had
read over his proposed plea form with his attorney, discussed the nature of his
constitutional rights and of the charges against him and understood the
consequences of his plea. He informed
the trial court that he had initialed the boxes on the plea form indicating
that he understood and had waived his right to a jury or court trial, his
him, his right to cross-examine the witnesses against him, his right to use the
subpoena power of the court and his right to remain silent. The trial court then informed Laverdure that,
as a result of his plea, he would be sentenced to state prison for 32
months. Upon his release from state
prison, Laverdure would be placed on “community supervision.†If he violated that supervision, Laverdure
could “be sentenced to county jail for up to 180 days for each violation.†Laverdure then indicated that he was entering
his plea “freely and voluntarily and because [he felt] it [was] in [his] best
interest to do so.â€
After his
counsel stipulated that there was a “factual basis for the plea based on the
preliminary hearing transcript, the probation report and the arrest reports,â€
Laverdure pleaded “no contest†to “count 1 of the information, a violation of
[former] section 12021[, subdivision] (a)(1) . . . , possession of a firearm by
a felon[.]†Laverdure then admitted that
he had suffered a prior conviction for robbery in violation of section 211 pursuant to sections 667,
subdivisions (b) to (i) and 1170.12, subdivisions (a) to (d), the Three Strikes
law.
The trial court
found Laverdure’s plea to have been “freely and voluntarily made with an
understanding of the nature and consequence[s] thereof and that there [was] a
factual basis for [the] plea[].†The
court accepted the plea and admission and found Laverdure “convicted as
charged.â€
At proceedings
held on May 11, 2012, the trial court ordered probation denied, sentenced Laverdure to 16 months in prison
for his conviction of count 1, possession of a firearm by a felon, then doubled
the term to 32 months pursuant to the Three Strikes law. Laverdure was awarded presentence custody
credit for 120 days actually served and 120 days of conduct credit. The court ordered Laverdure to pay a $240
restitution fine (§ 1202.4, subd. (b)), a stayed $240 parole revocation
restitution fine (§ 1202.45), a $30 criminal conviction assessment (Gov.
Code, § 70373) and a $40 court operations fee (§ 1465.8, subd.
(a)(1)). The trial court then dismissed
all remaining charges and allegations and recommended that Laverdure be sent to
fire camp.
On May 22, 2012,
Laverdure filed a timely notice of appeal and request for a certificate of
probable cause. On May 23, 2012, the
trial court denied Laverdure’s request for the certificate.
After
examination of the record, counsel filed an opening brief which raised no
issues and requested this court to conduct an independent review of the
record. By notice filed October 22,
2012, the clerk of this court advised Laverdure to submit within 30 days any
contentions, grounds of appeal or arguments he wished this court to
consider.
With regard to the
trial court’s denial of Laverdure’s certificate of probable cause, we note that
section 1237.5 provides that “[n]o appeal shall be taken by the defendant from
a judgment of conviction upon a plea of guilty or nolo contendere . . . 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.†“Section 1237.5 should be
‘applied in a strict manner.’ †(
Cal.App.4th 489, 494, citing People v.
Mendez (1999) 19 Cal.4th 1084, 1098.)
“The purpose for requiring a certificate of probable cause is to prevent
frivolous appeals challenging convictions following guilty and nolo contendere
pleas.†(People v. Placencia, supra,
at p. 493, citing People v. Johnson
(2009) 47 Cal.4th 668, 678.)
Here, Laverdure
filed a statement, under penalty of perjury, asserting that his plea had been
illegal for a number of reasons. He
first indicated he had ineffective assistance of counsel in the trial court. He urged that his counsel did not follow
through on his motion to suppress evidence and refused to request an
evidentiary hearing regarding the validity of his strike.
With regard to
the trial court, Laverdure argued that the judge who sentenced him in this case
tried to intimidate him and “acted like [a] 2nd prosecutor†rather than a fair
“officer of the [judiciary].†Laverdure
indicated that his ineffective legal representation and the attitude of the
trial court made him feel “ ‘railroaded.’ †He believes the prosecutor, his counsel and
the trial court all attempted to make him appear to be a violent person in
order to justify his plea and the sentence imposed.
A review of the
record fails to support Laverdure’s assertions.
There is nothing in the record which indicates any of the parties,
including the trial court, acted improperly.
The trial court properly acted within its discretion when it denied
Laverdure’s request for a certificate of probable cause and neither the prosecutor
nor Laverdure’s counsel attempted to coerce Laverdure into entering the
plea. The record indicates Laverdure,
after being properly advised of his constitutional
rights and the consequences of the plea, knowingly and voluntarily entered
it.
In a letter
dated May 28, 2012 and sent to the clerk of this court, Laverdure insisted that
he was “totally innocent†of the crime to which he had pled as well as the
robbery alleged pursuant to the Three Strikes law. He again urged the trial court erred in denying
his request for a certificate of probable cause and asked the clerk to “look
into [his] appeal.â€
With regard to
the robbery, Laverdure asserted it was “nothing more [than] 2 kids fighting
over a bicycle seat.†The incident,
however, has affected his entire life.
“[Ever] since that law passed,†he has “done nothing but 80% on any
little case [he] would catch.â€
With regard to
the present case, he believes he was “set . . . up†by a
roommate with whom he had been having a dispute. The roommate had apparently burglarized
Laverdure’s room and Laverdure had not been in his car for at least 10 or 15
minutes before the gun was found there by police officers. They then took him into custody and
questioned him without the benefit of Miranda
warnings. Moreover, Laverdure indicated
he entered the plea because the trial court threatened to sentence him to the
maximum term possible, 12 years at 80 percent, if he requested a trial.
In a second
letter, filed November 15, 2012, Laverdure asserted he “took a plea [bargain]
out of misrepresentation from [his] public defender.†He claims his trial counsel was ineffective
and he felt “forced†to enter the plea.
Laverdure indicates he felt that his counsel was acting “as a second
prosecutor rather [than] a defense attorney.â€
Laverdure asserts that evidence at the
rights pursuant to Miranda were
clearly violated. In addition, his
counsel refused to request a “ ‘strike’ †hearing to verify the
validity of his strike. He again asserts
that the “robbery†was nothing more than “two kids arguing over a bike.†Finally, Laverdure argues that the “judge on
[his] case . . . was bias[ed] and showed on the bench [an] abuse of
authority.†In closing, Laverdure
asserts that he is simply asking “that [the] court review the transcripts, and
vacat[e] the strike enhancement as it [is] obvious [he] was never given the
opportunity to have a ‘strike’ hearing.â€
With regard to
Laverdure’s assertion his trial counsel was ineffective, a review of the record
indicates that it is true she did not follow through with his motion to
suppress evidence. However, she
negotiated a plea for Laverdure under the terms of which he will serve less
time than that initially offered by the People and significantly less time than
the maximum he faced. Moreover, a
reading of the record indicates Laverdure, with the assistance of his counsel,
knowingly and voluntarily withdrew his motion to suppress and entered the plea
because he felt it was in his best interest to do so. As to his strike, he was convicted of the
robbery in 1991. Even if counsel could
have obtained the records from the case, there is little if any likelihood that
Laverdure could show that his 21-year-old plea to the crime was improper and
that he should now be allowed to withdraw it.
Under these circumstances, it cannot be said that trial “counsel’s
representation fell below an objective standard of reasonableness under prevailing
professional norms†and that Laverdure suffered prejudice as a result of
counsel’s actions. (People v. Carter (2003) 30 Cal.4th 1166, 1211; see
668, 694.)
Laverdure’s
argument the “judge on [his] case . . . was bias[ed] and showed on the bench
[an] abuse of authority†is also unfounded.
The record indicates the trial court, after reading over Laverdure’s
plea forms, properly determined that Laverdure understood the constitutional
rights he was waiving, the nature of the charges against him and the
consequences of entering a plea. Nothing
in the record indicates the trial court “railroaded†Laverdure. In fact, per Laverdure’s request, the trial
court recommended that he be sent to fire camp.
We have examined
the entire record and are satisfied counsel has complied fully with counsel’s
responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
The judgment is
affirmed.
OFFICIAL REPORTS
We concur:
CROSKEY,
J.
ALDRICH,
J.
2010, ch. 711 (Sen. Bill No. 1080), § 4, provides for repeal of
tit. 2, operative Jan. 1, 2012.)
Laverdure violated the statute on November 8, 2011.
Penal Code unless otherwise indicated.
