P. v. Dunn
Filed 4/18/13 P. v. Dunn CA4/1
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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.
ERIC CHRISTOPHER DUNN,
Defendant and Appellant.
D062172
(Super. Ct.
No. SCD235274)
APPEAL from
a judgment of the Superior Court
of
County, Howard H.
Shore, Judge. Affirmed as modified, with directions.
A jury
convicted Eric Christopher Dunn of robbery
with the use of a knife. (Pen. Code,
§§ 211 & 12022, subd. (b)(1).)
Dunn admitted three prison priors (§ 667.5, subd. (b)); two serious
felony prior convictions (§ 667, subd. (a)(1); and 14 strike priors
(§ 667, subds. (b)-(i)).
The trial
court denied Dunn's motion to strike at least 13 of the strike priors and
sentenced him to an indeterminate term of 25 years to life plus one year for
the use of the knife and 10 years for the two serious felony prior
convictions.
Dunn
appeals contending the trial court failed to obtain a proper waiver of Dunn's
trial rights regarding his prior convictions, that the court abused its
discretion in denying his request to strike 13 of his strike priors and that
the abstract of judgment must be corrected.
The respondent agrees the abstract of judgment must be amended and we
will order correction of the abstract.
We will otherwise reject Dunn's contentions and affirm.
STATEMENT
OF FACTS
Since Dunn
does not challenge either the admissibility or the sufficiency of the evidence
to support his conviction, we need only offer a brief summary of the offense.
It is sufficient
to note that Dunn committed a robbery of a Kentucky Fried Chicken restaurant
using a knife as a weapon.
DISCUSSION
I
Dunn
contends the trial court erred in failing to obtain a proper waiver of Dunn's
trial rights regarding the prior convictions before accepting his
admissions. He argues the record is
silent as to the waiver of his rights and thus his admission of the alleged
prior convictions should be vacated and the case remanded. Our review of the record demonstrates this is
not a "silent record case" and that under current case law there is
sufficient information in the record to establish Dunn's decision to admit the
prior convictions was knowing and voluntary.
While we
will affirm the admission of the priors, we will again lament yet another
appeal where the investment of a very few minutes to obtain a clear waiver from
the defendant would have avoided the time and costs of a challenge to the
admission of prior convictions.
Respectfully, the requirement of a personal waiver is clear and of long
standing and there is no good reason for trial courts to bypass the
requirements. In this case the proof of
the prior convictions changes this case from a six-year maximum to an effective
36-year-to-life sentence.
Our
lamentations aside, the application of controlling case law leads us to
conclude we should not set aside the admissions and remand this case for trial
on the priors.
A. Background
When the
trial court granted the defense motion to bifurcate the trial on the prior
convictions, the court said:
"All right.
Then I will order that the trial of the allegations of prior
convictions, including the first and second prison--I'm sorry--first, second
and third prison prior, first serious felony prior and strike prior be
bifurcated from the trial of the underlying charges. [¶] At some point before the end of the case,
I'll simply--or before the jury is discharged, if there is a conviction, I will
need to know which of the three options the defendant's going to exercise: Number 1, a jury trial on the priors, a
waiver of the jury and a court trial, or an admission, just so I know what to
tell the jury. I mean, that's a ways
off, but I'll need to know that at some point."
After the
case was submitted to the jury the court again raised the issue of whether Dunn
wished a trial on the alleged prior convictions. The court said:
" All right.
And the only other issue is I will need to know sometime before the jury
comes back whether Mr. Dunn wants a jury trial on the allegations of priors or
whether he will admit or wants a court trial."
Defense
counsel responded: "Your honor, I
explained all three options to Mr. Eric Dunn, and he's indicated to me that
should there be a guilty verdict, that he would be prepared to admit the prior
convictions, so therefore the jury could be discharged." The defendant was present during both of the
court's comments on the right to trial on the prior convictions.
Prior to
the completion of jury deliberations Dunn admitted each of the alleged prior
convictions.
B. Legal Principles
In 1974 the
Supreme Court held that before a person should be permitted to admit alleged
prior convictions, the person should be first advised of the right to a jury
trial on the prior, the right to confront witnesses and the right to remain
silent. (In re Yurko (1974) 10 Cal.3d 857, 863.) The defendant could only validly admit the
prior convictions if he or she made a knowing, voluntary waiver of those
rights. The rule of Yurko did not allow for other than full compliance with the waiver
requirement.
The court
modified its position on admitting prior convictions in People v. Howard (1992) 1 Cal.4th 1132, 1175. There the court held that an admission of
prior convictions could be upheld if the record demonstrated that the admission
was voluntary and intelligent under the totality of the circumstances. (Id. at
p. 1180.)
The Supreme
Court again discussed the process for admission of prior convictions in
Cal.4th 353, 360 (Mosby). There the court held it was important that
defendants be advised of their rights and voluntarily waive them. However, the court further held that we could
review the entire record, together with evidence of the defendant's experience
in the criminal justice system, to determine whether the defendant's admissions
actually constitute a knowing and voluntary waiver of the trial rights for
alleged prior convictions. (
Under the
rules established by Mosby, supra, 33
Cal.4th 353, we may review the transcripts of the proceedings in this case, as
well as the documents from prior proceedings that are part of the record on
appeal. (Id. at p. 361.)
C. Analysis
As we have
already noted, this is not a silent record case. On two separate occasions the trial court
discussed Dunn's options for resolving the allegations regarding prior
convictions. Dunn was told he had the
options of a jury trial, a court trial or admission of the priors. After the court repeated the options a second
time, defense counsel, in Dunn's presence, advised the court that Dunn had
decided to admit the prior convictions, which he did the following day. Admittedly, the court did not specifically
obtain a waiver from Dunn as would have been required under the
Yurko, supra, 10 Cal.3d 857.)
However, Mosby, supra, 33
Cal.4th 353, permits us to review the entire record to determine if the
admissions were knowing and voluntary.
In this
case, Dunn had just completed a jury trial before he admitted the priors. He was certainly aware he could have a jury
trial and that he could have counsel confront and cross-examine witnesses. Although Dunn testified at the trial on the robbery
charge, he did so over the advice of counsel and we infer he was fully aware of
his right to remain silent.
We are also
entitled to look at Dunn's criminal history to the extent it is in the
record. Unfortunately Dunn has an
extensive criminal history. He had
pleaded guilty on a number of occasions and his signed change of plea forms are
in the record. In each instance he was
advised of his trial rights. On the last
two convictions before the instant case, Dunn had admitted the then accumulated
prior convictions.
In short,
we believe the record leaves no doubt that Dunn was aware of his trial rights
and that he made an informed decision, with the advice of counsel, to waive
those rights and admit the prior convictions.
Thus we find the admissions to be valid and reject Dunn's arguments to
the contrary.
II
Dunn
requested the trial court to dismiss at least 13 of his strike priors under
section 1385 and People v. Superior Court
(Romero) (1996) 13
Cal.4th 497. The trial court
acknowledged its authority to strike priors but declined to do so in light of Dunn's
criminal history and the nature of the current offense. The court noted that in 2005, when Dunn was
last sentenced for a crime, the trial court did strike 13 of his strike priors
but that Dunn had immediately committed a new robbery upon his release from
prison. The court said:
"And so after committing a number of robberies, the
defendant had the benefit of a plea agreement where the court--whether lawfully
or unlawfully--struck 13 strikes. Now,
most people when confronted with a serious crime and who are determined not to
reoffend would take the first such offense as an opportunity to demonstrate
that they will never offend again. In
this case, we have the defendant who was basically given the gift by having 13
strikes stricken in 2005 after he already committed a series of robberies in
1987, and, nonetheless, after being sentenced and getting out, he committed a
new string of robberies, the robberies in this case. [¶] I don't think there can be any clearer
indication that the defendant has absolutely no respect for the law, so I can't
find any language in any of the cases that would justify my striking the
strikes in this case based on the defendant's record and the opportunities he's
had in the past to demonstrate that he was going to be a law-abiding
person. And, again, the strike law
doesn't require the new crime to be a serious felony. It so happens it was in this case."
Dunn
contends the trial court abused its discretion in declining to dismiss enough
of the strike priors to permit imposition of a determinate term. We find the contention to be without merit on
this record.
A. Legal Principles
When a
court is requested to dismiss strike priors it must consider the defendant's
current offense, the person's criminal history, background and prospects. In short, the court must determine whether
the defendant came wholly, or in part, outside the spirit of the Three Strikes
law. (People v. Williams (1998) 17 Cal.4th 148, 161.)
As a
general proposition, sentences imposed pursuant to the three strikes sentencing
scheme are presumed rational. The
court's decision to decline the strike priors will only be overturned where the
court either does not understand the scope of its discretion, or where no
reasonable person could disagree that the defendant is really outside the
spirit of the law. (People v. Carmony (2004) 33 Cal.4th 367, 376-378.)
Although 12
of Dunn's prior robbery convictions arose in 1984, the court was not required
to dismiss any of the alleged strikes, because the record shows Dunn has either
been in custody, or committing crimes even before 1984. While the age of prior convictions is a
factor trial courts can consider, where the defendant has engaged in continuous
criminal behavior since the convictions, the passage of time is more than
offset by the continued criminality. (
Cal.App.4th 809, 813; People v.
DeGuzman (1996) 49 Cal.App.4th 1049, 1054.)
B. Analysis
The trial
court was aware of its discretion to consider dismissing the strike
priors. The court was also very aware of
Dunn's history of continuous criminal behavior for a lengthy period of
time. As the court noted in 2005, a
trial court did strike 13 prior convictions in order to avoid an indeterminate
sentence for Dunn. Unfortunately, Dunn
did not benefit from the relief granted in 2005. Not long after release from custody following
the 2005 conviction, Dunn committed yet another robbery using a knife to
threaten the victims. Dunn's record
demonstrates he has not benefitted from past experiences or from any leniency
offered by the courts.
Further,
the current crime involved a deadly weapon and threats of violence, all done by
a true career criminal. Consistent with
the directions of the court in People v.
Williams, supra, 17
Cal.4th 148, the trial court thoroughly examined Dunn's background and
prospects and could easily conclude that Dunn is one of the criminals who comes
squarely within the spirit of the Three Strikes law. Sadly, he fits the over used term
"poster child" for that sentencing scheme.
This is not
a close case. The trial court properly
exercised its discretion in denying Dunn's request to dismiss his numerous
strike priors.
III
The
abstract of judgment reflects the sentence for count 1 as life with the
possibility of parole. As the parties
agree, the sentence for robbery, with two or more strike priors is 25 years to
life. We will direct the superior court
to amend the abstract of judgment accordingly.
DISPOSITION
The
superior court is directed to amend the abstract of judgment to reflect the
sentence for count 1, robbery, as 25 years to life and to forward an amended
abstract of judgment to the Department of
Corrections and Rehabilitation. In
all other respects the judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
McDONALD,
J.
AARON,
J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code
unless otherwise specified.
