P. v. Dodson
Filed 3/11/13 P. v. Dodson CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
SHANNON LOWE DODSON,
Defendant and Appellant.
D061991
(Super. Ct.
No. SCD236887)
APPEAL from
a judgment of the Superior Court
of
County, Charles G. Rogers, Judge. Affirmed.
INTRODUCTION
A.
At the
November 29, 2011 change of plea hearing, after defendant Shannon Lowe Dodson
initialed and signed a change of plea form, the court told Dodson that under
the plea agreement his "sentencing range could be anywhere between a
minimum of three years in state prison to a maximum of 27 years in state
prison,"
title="">[1]
the court would make the sentencing determination after a
necessarily receive the seven-year sentence the prosecutor had offered (and
Dodson had rejected) earlier, and, since Dodson was admitting responsibility,
the court was "not going to go to the high end of the sentencing range and
give [him] the max or anything close to it."
After the
court advised Dodson of his constitutional
rights and the potential consequences of his plea, Dodson pleaded guilty to
one count of conspiracy to commit first degree robbery—home invasion robbery in
concert (count 1: Pen. Code, § 182,
subd. (a)(1). (Undesignated statutory
references will be to the Penal Code.)
Dodson admitted count 1 allegations that (1) he committed count 1 for
the benefit of, at the direction of, and in association with a
intent to promote, further and assist in criminal conduct by gang members
(§ 186.22, subd. (b)(1)); and (2) in committing that street gang crime, he
unlawfully carried a firearm on his person or in a vehicle (§ 12021.5,
subd. (a)). Dodson also admitted that in
2008 he had suffered a prior juvenile robbery adjudication that qualified as a
strike prior (§§ 667, subds. (b)-(i), 668, 1170.12). On the People's motion, the court dismissed
the remaining counts and allegations alleged in the felony complaint.
The court
found that Dodson understood and voluntarily and intelligently waived his
constitutional rights, his plea and admissions were "free and
voluntary," he understood the nature of the charges and the consequences
of the plea and admissions, and there was a factual basis for the plea and
admissions.
B.
Defense
counsel brought, on Dodson's behalf, a motion under People v. Superior Court (Romero)
(1996) 13 Cal.4th 497 and section 1385 to strike the prior strike allegation
(hereafter referred to as the Romero motion),
and filed in conjunction with that motion a sentencing memorandum in
mitigation. Dodson's
reasons for striking the strike prior:
(1) "The [s]trike [p]rior is a juvenile adjudication suffered when
he was 17 years old."
name="_ftnref2" title="">[2] (2) "The current offense was initiated
by law enforcement and [Dodson's] older co-defendants." (3) "The current offense involves a
fictitious amount of drugs used by law enforcement to bait the
co-defendants." (4) "The
punishment under the Three Strikes law is disproportionate to the severity of
the current offense." (5) "The
punishment under the Three Strikes law is disproportionate to [Dodson's]
criminal history." (6) the
punishment under the [T]hree [S]trikes law is disproportionate to [Dodson's]
minimal role and participation in the conspiracy." (7) "[Dodson's] criminal history is over-represented." (8) "[Dodson's] criminal history is a
result of [his] homelessness and his untreated drug addiction." (9) "[Dodson], aged twenty, is quite
youthful and is capable of re-habilitation." The People opposed Dodson's
"squarely falls within the spirit of the Three Strikes law as a repeat and
serial offender."
On February 16, 2012, Dodson appeared at
the sentencing hearing with his counsel.
The court indicated it had read and considered the probation officer's
report, Dodson's Romero motion,
memorandum in mitigation and supporting letters, and the prosecutor's
opposition to the Romero motion. In the exercise of its discretion following
oral arguments, the court considered the factors set forth in
148,
denied Dodson's Romero motion. The court reasoned that, "look[ing] at
all these factors, including the fact that [Dodson] allowed himself to be
brought into this, to join up with this conspiracy so soon after being released
from prison, I think frankly it would be an abuse of my discretion to strike
the strike."
After
hearing further arguments by defense counsel and the prosecutor, the court
sentenced Dodson for his count 1 conviction to the low term of three years in
state prison, doubled to six years under the Three Strikes law. The court struck the punishment for the gang
allegation (§ 186.22, subd. (b)(1)), stating "[t]he allegation itself
has been established, it remains, but the punishment of five years is stricken,"
and imposed a consecutive two-year term for Dodson's admitted possession of a
firearm with gang-related conduct (§ 12021.5, subd. (a)). The count thus sentenced Dodson to an
aggregate prison term of eight years.
Dodson
filed his notice of appeal after he requested and obtained a certificate of
probable cause.
FACTUAL
BACKGROUND
For
purposes of the change of plea hearing, Dodson admitted as the factual basis
for his guilty plea and admissions that he "conspired to commit a
residential burglary in concert while armed with a gun; [he] had a prior strike
adjudication offense as a juvenile; [he] did this in conjunction with other
criminal street gang members; and this was done, at least in part, for the
benefit [of] and to further criminal
conduct by street gang members."
DISCUSSION
Appointed
appellate counsel has filed a brief summarizing the proceedings below. Counsel presents no argument for reversal,
but asks this court to review the record for error as mandated by
436. Pursuant to Anders v. California (1967) 386 U.
S. 738, counsel refers to the following as
possible, but not arguable, issues: (1)
"Was [Dodson] properly advised of the consequences of pleading guilty. Was he advised of his
them before he pleaded guilty?" (2)
"Did the court abuse its discretion [by denying Dodson's
[his] strike prior for purposes of sentencing?" (3) "Did the court abuse its discretion
by imposing a consecutive sentence for Dodson's firearm enhancement after
striking punishment for the gang enhancement?" (4) "Does the record reveal that counsel
rendered ineffective assistance of counsel?
We granted
Dodson permission to file a brief on his own behalf, which he did. Although that brief was received, it appears
to have been misfiled. In November 2012
we therefore requested that Dodson provide copy of that brief. A second request was made in January
2013. Because the requested copy has not
been received, the court has decided the case on the record and briefs on file
in the appellate record.
A review of
the record pursuant to
v. California, supra, 386 U.S.
738, including the possible issues raised by appellate counsel, has disclosed
no reasonably arguable appellate issue.
The record shows Dodson was properly advised of the consequences of his
plea and admissions. He was properly
advised of, and waived, his constitutional rights before he entered his guilty
plea and admissions. The court did not
abuse its discretion by denying his Romero
motion. The court did not abuse its
sentencing discretion, and defense counsel did not render ineffective
assistance. Dodson has been adequately
represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
NARES,
Acting P. J.
WE CONCUR:
McDONALD, J.
IRION, J.
name="_ftn1" title="">[1]
The "Plea of Guilty/No
Contest—Felony" form that Dodson initialed and signed stated that Dodson
"[had] not been induced to enter this plea by any promise or
representation of any kind" and indicated a sentencing range of a minimum
of three years and maximum of 27 years in state prison.
name="_ftn2" title="">[2]
The record shows that Dodson was
born in June 1991, and thus he was 20 years of age when he committed count 1 in
August 2011.
