People v. Leyva

THE PEOPLE, Plaintiff and Respondent, v. MARK WILLIAM LEYVA, Defendant and Appellant.

F078488

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

April 21, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. CRF54694)

OPINION

THE COURT^*

APPEAL from a judgment of the Superior Court of Tuolumne County. Donald I. Segerstrom, Jr., Judge.

Conness A. Thompson, under appointment by the Court of Appeal, Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Mark William Leyva appeals from an open plea of guilty. His plea included a waiver of his right to appeal from the trial court's sentence. Following sentencing, defense counsel filed a notice of appeal on Leyva's behalf, but did not apply for a certificate of probable cause. On appeal, Leyva contends the trial court abused its discretion in denying him probation, and the court punished him three times for a single act in violation of Penal Code section 654. If these issues are held waived, he submits defense counsel rendered ineffective assistance of counsel by failing to object to the appellate rights waiver and by failing to seek a certificate of probable cause. We will order his sentence on count 4 stayed. In all other respects, we affirm the judgment.

PROCEDURAL HISTORY

On December 6, 2017, the Tuolumne County District Attorney filed a criminal complaint, deemed an information, charging Leyva with elder abuse likely to produce great bodily harm or death (Pen. Code,¹ § 368, subd. (b)(1), count 1); assault with a firearm (§ 245, subd. (a)(2), counts 2 & 3); discharge of a firearm with gross negligence (§ 246.3, subd. (a), count 4); false imprisonment of an elder dependent adult (§ 368, subd. (f), count 5); false imprisonment by violence (§ 236, count 6); criminal threats (§ 422, subd. (a), counts 7 & 8); and vandalism over $400 (§ 594, subd. (a), count 9). It was further alleged that as to counts 1 and 2, Leyva inflicted great bodily injury to a victim over 70 years of age (§ 12022.7, subd. (c)); as to count 3, he inflicted great bodily injury (§ 12022.7, subd. (a)); and as to counts 1 through 3 and 5 through 9, Leyva personally used a firearm (§ 12022.5, subds. (a) & (d)).

On April 16, 2018, Leyva pled guilty to all counts and admitted all enhancement allegations. Leyva's guilty plea was entered as an open plea.² In consideration of his plea, and in view of the fact that Leyva is a veteran of the United States military with a mental health condition, defense counsel requested Leyva be considered for probation pursuant to section 1170.9.³ His maximum exposure was an aggregate prison term of over 40 years.

On November 13, 2018, the court denied Leyva's request for probation and sentenced him to a prison term of 22 years.

On November 28, 2018, Leyva filed a timely notice of appeal but did not request a certificate of probable cause.

On May 2, 2019, Leyva's appellate counsel filed an application for leave to seek a belated certificate of probable cause.

On May 16, 2019, this Court denied the application.

STATEMENT OF FACTS

The parties stipulated to the following statement of facts as the factual basis for Leyva's plea:

On April 2, 2017, Leyva was living in a residence in Twain Harte. He was living with John Hodgins, who was 70 years old, and Jeanne Guthmiller.

On the morning of April 2, 2017, Leyva and Hodgins got into an argument. During the argument, Leyva retrieved a nine-millimeter Beretta pistol. He struck Hodgins on the head several times with the pistol. A physical struggle ensued betweenHodgins and Leyva. The gun discharged several times. One of the bullets went through Hodgins's arm, and another bullet struck somewhere in the building, ricocheted, and struck Guthmiller in the leg. During the struggle, Leyva fired several shots inside the house destroying a computer and a television set. Leyva told both Guthmiller and Hodgins he was going to kill them and directed them into a bedroom where he told them that he would kill them later.

Leyva ultimately exited the residence. His pistol was subsequently retrieved. Leyva admitted his crimes to members of the Tuolumne County Sheriff's Department.

DISCUSSION

I. Reviewability of Appellant's Claims

Leyva is appealing from a guilty plea entered open that included a written and oral waiver of his right to appeal. Leyva did not secure a certificate of probable cause. He contends his appeal is nonetheless cognizable because a certificate of probable cause is not required to raise sentencing issues that do not attack the validity of the plea. With respect to the appellate waiver, Leyva asserts the issues raised in this appeal are outside the scope of the waiver, and "a defendant cannot knowingly and intelligently waive the right to appeal an issue not contemplated at the time ... an appellate waiver [is executed]."

The People agree that Leyva does not need a certificate of probable cause to appeal his sentence. However, because Leyva knowingly, voluntarily, and intelligently waived his right to appeal, they submit his challenge to the trial court's denial of his request for probation is not cognizable.

First, we conclude Leyva's claim that the trial court erred in denying his request for probation is not an attack on the validity of the plea. It is an attack on the court's sentencing decision. As that is a noncertificate issue, Leyva's failure to secure a certificate of probable cause does not, by itself, foreclose our ability to reach the merits of his claim. Second, with respect to the appellate rights waiver, we conclude his claimconcerning the sentencing court's denial of his request for probation falls within the scope of the waiver. Because the record shows Leyva's waiver was knowingly, voluntarily, and intelligently made, his claim asserting the trial court abused its discretion in denying him probation is waived. As discussed in part II, post, we reject Leyva's claim of ineffective assistance of counsel.

Finally, as discussed in part III, post, we conclude Leyva's claim that portions of his sentence were imposed in violation of section 654 falls outside the scope of the waiver.

A. Background

On April 16, 2018, Leyva pled guilty to all counts charged in the information. Defense counsel stated, "We have a plea. He is going to plead to all counts, no promises from the Court." After defense counsel recited the factual basis for the plea, the court reaffirmed there was no plea agreement. Defense counsel stated, "Essentially, he is putting himself at the mercy of the Court ... for the benefit of the veterans' court slash chance at probation."

The court explained the superior court did not "have a veterans' court per se" but that Leyva's status as a veteran would be considered in determining whether he would be suitable for probation. The court stated it would need to see the probation report to determine whether he would be suitable for probation, but warned Leyva that if he were not, he would face a potentially long prison sentence. The court proceeded to admonish Leyva, inter alia, regarding the waiver of rights form.

The plea form Leyva signed advised, "You have the following trial rights in connection with the charges which are now pending against you. You will be giving up all of the following rights if you enter a plea of guilty or no contest." Under the section titled, "Waiver of Appeal," a statement read, "I understand that I will be waiving my right to appeal and I will not be able to appeal from this Court's sentence based on the pleathat I enter into in this matter." Leyva initialed two boxes next to the statement to indicate, "I understand this right," and "I give up this right."

Leyva also signed a statement at the bottom of the plea form that read, "I have read and understand the front and back of this form. I have had enough time to speak with my attorney; I have told my attorney everything I know about this case; my attorney has explained to me my rights, my defenses, and the possible consequences of my plea, including the consequences explained on the second page of this form. I am entering this plea freely and voluntarily. I understand that I may not withdraw this plea without a showing of good cause." During the plea colloquy, Leyva confirmed he had spoken with his attorney before pleading guilty, and he had read and understood the plea form before he initialed it and signed it.

The court asked Leyva, "And do you understand there won't be any appeal from this conviction?" Leyva responded affirmatively.

The court told Leyva it would consider his request for a grant of probation, but if the court concluded probation was not appropriate, then "[he] would be facing a prison sentence," which would be anywhere between 16 months to a term "in excess of 40 years." The court reiterated that it would take into account all relevant factors but "there are no promises" and if Leyva were denied probation, he "could be placed in prison for an extended period of time." Leyva indicated he understood. The trial court accepted the terms of the agreement and found Leyva had knowingly and voluntarily entered his plea and waived his rights.

On June 18, 2018, the court ordered a diagnostic assessment of Leyva pursuant to section 1203.3. The diagnostic report included an interview with a correctional counselor and a psychological report submitted by Dr. S. Muong, Doctor of Psychology, Deuel Vocational Institution. The correctional counselor, the correctional counselor's supervisor, and the doctor who conducted Leyva's diagnostic...