People v. Wilkins

THE PEOPLE, Plaintiff and Respondent, v. JAMES EDWARD WILKINS, Defendant and Appellant.

H047572

California Court of Appeals, Sixth District

July 26, 2021

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. C1899798

Danner, J.

Appellant James Edward Wilkins argues the trial court abused its discretion when it imposed a custodial term longer than its previously indicated sentence. He also contends that a recent statutory change requires the striking of enhancements for prior prison terms. We agree that the sentencing enhancements should be stricken but reject Wilkins's other arguments.

I. Facts and procedural background

On September 1, 2018, officers from the San Jose State University Police Department observed Wilkins riding a Yamaha motorcycle with fraudulent paper license plates.^[1] The officers noticed that the motorcycle's ignition was heavily damaged and lacked a key. A records check revealed the motorcycle had been reported stolen. The officers placed Wilkins under arrest searched him, and found methamphetamine and a glass pipe in his jacket pockets. On October 25, 2018, police spoke with the motorcycle's owner, who said the motorcycle was worth $8, 000 and he had not given anyone permission to use it.

Approximately six years earlier, on June 12, 2012, Wilkins had been sentenced in an unrelated case to 10 years in prison. He was released on March 3, 2016, and placed on post-release community supervision (PRCS). Wilkins had been found in violation of PRCS on August 22, 2016, November 1, 2016, June 15, 2017, and May 14, 2018.

Based on the motorcycle incident, the Santa Clara County District Attorney filed an amended information charging Wilkins with taking or the unauthorized use of a vehicle with a specified prior (Veh. Code, § 10851, subd. (a); count 1) with an allegation that Wilkins had previously been convicted of a felony violation of Vehicle Code section 10851 (Pen. Code § 666.5), ^[2] buying or receiving a stolen motor vehicle with a prior conviction (§ 496d, subd. (a); count 2) with an allegation that Wilkins had previously been convicted of a felony violation of Vehicle Code section 10851 (§ 666.5), misdemeanor possession of a specified controlled substance (Health & Saf. Code, § 11377 subd. (a); count 3), and misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, § 11364, subd. (a); count 4). The information also alleged that Wilkins had served seven prior prison terms within the meaning of section 667.5, subdivision (b) (hereafter section 667.5(b)). The prior prison terms had resulted from six convictions for felony driving under the influence with prior convictions for driving under the influence (Veh. Code, § 23550.5, subd. (a)), and one conviction for grand theft (§ 487, subd. (c)).

On May 16, 2019, ^[3] Wilkins entered a no contest plea to all counts in the amended information and admitted five of the section 667.5(b) allegations.^[4] Wilkins did not enter his pleas pursuant to a plea agreement with the district attorney but instead entered into an “open plea.” The trial court gave Wilkins an indicated sentence, which the trial court described as “three years [of] mandatory supervision, ” including “one year of custody.” The trial court highlighted that the three year term was “not an offer” but was an indicated sentence it had made over the district attorney's objection. The trial court stated that Wilkins faced a maximum sentence of nine years for the charges.

Wilkins filled out a plea form and initialed “JF” next to certain boxes.^[5] The plea form indicates that Wilkins's plea was an open plea with a “non-binding, tentative indicated sentence” from the court of three years in prison, consisting of one year in custody followed by two years on mandatory supervision. Line 49 of the form is entitled “ ‘Cruz' Waiver.” It states “I understand if I willfully fail to appear for future court dates and/or commit new crimes, I will lose the benefit of any plea agreement. The sentencing judge could then impose a different or greater punishment up to the maximum possible sentence, and I would not be allowed to withdraw my plea because of that different or greater punishment.” The box next to line 49 contains a crossed-out “X.” Immediately under line 49 appears a handwritten notation that reads “Failure to comply with SORP conditions.” Wilkin's initials of “JF” appear next to that handwritten notation.

Before taking Wilkins's plea, the trial court explained to Wilkins that, prior to sentencing, Wilkins would be on pretrial release in this case and on PRCS for his prior felony conviction. The trial court stated that Wilkins would need to check in with pretrial services the following day. Wilkins indicated that he understood. The trial court continued, “And if you don't check in with Pretrial Services or you don't do everything they want you to do, which is report and test clean, when you come back with me, it could be the same as not showing up. [¶] This three years would be no longer the lid. You are agreeing that I could sentence you to the maximum of nine years. I don't want to do that. And we could have-if we got there, we could have a discussion about should I stick with three or can I go higher. [¶] But you need to know that if you don't see Pretrial Services and don't do what they want, that you're still-your plea of guilty is still in effect, but that three number can go up as high as nine. [¶] So you do have two places you need to be checking in with between now and before I see you in a couple of weeks. And there's a bunch of things you have to do but those are the same things you've already been doing. There are some serious consequences if you fail to do those. I want to make sure you understand all that. [¶] Do you feel you understand all those things?” Wilkins answered, “[y]eah.”

Referring to the plea form, the trial court asked Wilkins if he had actually read and understood all the items on the form he initialed and signed, and Wilkins said that he had. Wilkins had no questions for the trial court or his attorney about the form.

Following Wilkins's entry of pleas of no contest, the trial court ordered Wilkins released on supervised own recognizance release (SORP). Among other conditions of release, the trial court ordered Wilkins to report to pretrial services, not to use any illegal drugs, and submit to drug testing. Wilkins verbally agreed to the terms of supervised release and signed a form agreeing to them. The trial court set a sentencing date of May 29.

Wilkins appeared in court on May 29. For reasons not explained in the record on appeal, Wilkins's sentencing was continued to June 12.^[6] Wilkins did not appear in court on June 12. The trial court revoked Wilkins's SORP release and issued a no-bail bench warrant.

On September 25, Wilkins appeared in court in custody, and the trial court continued the matter until October 9 for sentencing. On October 9, the trial court conducted a sentencing hearing. It stated that it intended to sentence Wilkins to something other than the three year indicated sentence based on Wilkins's lack of compliance with the SORP conditions and his failure to appear at sentencing.

In response to the court's tentative sentence, Wilkins's trial counsel asked “to address the Cruz violation in this case.” Counsel stated that Wilkins had actually come to the courthouse on June 12 (the sentencing date he missed), but he was late because he was walking to court and had an injured leg. Counsel indicated that Wilkins walked for two or two and a half hours to get to court and Wilkins “makes an effort that [counsel had] never seen other clients make.” According to counsel, after the missed court date on June 12, Wilkins contacted pretrial services, which told Wilkins to contact his attorney. In response to a question from the trial court, Wilkins's counsel stated that was the only time Wilkins contacted pretrial services after his release on SORP. Wilkins's counsel requested that the trial court impose the original indicated sentence of three years.

The district attorney requested that the trial court impose a four year custodial sentence. The district attorney observed that, on June 12, there had been a motion by pretrial services to revoke SORP because Wilkins had repeatedly failed to contact pretrial services, had tested positive for marijuana, and on multiple occasions had failed to test for illegal narcotics. The district attorney noted that, during the pendency of the case, the trial court had released Wilkins on SORP four previous times over the district attorney's objection.

The trial court recognized Wilkins's efforts and stated that it had “really come to appreciate and like” him. However, the court stated that it believed it had extended as many opportunities to Wilkins as it could under the circumstances. The court stated that it had the authority to give a longer sentence than three years based on the Cruz waiver. It believed it should impose a longer sentence than the indicated sentence because of Wilkins's failure to appear for sentencing and failure to report to pretrial services. Wilkins's counsel did not contest the post-plea facts as recited by the trial court and the district attorney or request a formal hearing on whether Wilkins had violated the conditions of his supervised release.

The trial court sentenced Wilkins to four years each on counts 1 and 2, staying the punishment on count 2 pursuant to section 654, and to 60 days on counts 3 and 4, to be served concurrently with all other counts. The court imposed the four-year term under section 1170, subdivision (h), ordered that it be served in custody, and-according to the minute order-struck the punishment on the section 667.5(b) enhancements. The court...