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Filed 12/20/07 P. v. Twyne CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v.

SHAWN TWYNE,

Defendant and Appellant.
D049862
(Super. Ct. No. SCN193132)

In re SHAWN A. TWYNE on Habeas Corpus. D050986

Consolidated appeal from a judgment of the Superior Court of San Diego County, Timothy M. Casserly, Judge, and petition for writ of habeas corpus. Judgment affirmed; petition denied.

Tywne appeals from a judgment convicting him of driving under the influence of alcohol. In his appeal, he contends the trial court (1) abused its discretion in refusing to dismiss a strike prior conviction, and (2) violated his jury trial rights under Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) by imposing an upper-term sentence. In a writ petition filed in propria persona, he asserts there was insufficient evidence to support the trial court's findings that he suffered two prior convictions for driving under the influence in 1996. We reject his arguments, and accordingly affirm the judgment and deny the writ petition.

FACTUAL AND PROCEDURAL BACKGROUND

Around 2:00 a.m. on March 25, 2005, Officers Michael Kelley and Brian Kennedy observed Twyne's vehicle drift from the slow to the middle freeway lane; weave within the slow lane; change lanes directly in front of another vehicle; and suddenly accelerate from 70 to 80 miles per hour. Officer Kelley turned on his emergency lights to stop Twyne. Twyne moved over to the slow lane, passed a freeway exit, and began to stop his vehicle in the slow lane. Officer Kennedy spoke over the P.A. system and repeatedly instructed Twyne to move his vehicle out of the lanes. Twyne slowly moved his vehicle and stopped on the shoulder of the freeway. Again speaking over the P.A. system, Officer Kennedy told Twyne to drive to the next exit and exit the freeway. Twyne complied.

Twyne acknowledged to the officers that his license was suspended. Officer Kelley observed that Twyne appeared intoxicated: his eyes were red and watery, his breath smelled of alcohol, his speech was slurred, and his appearance was unkempt. Twyne did not perform well on field sobriety tests. A blood test administered at the detention facility showed a blood alcohol level of .19.

Testifying on his own behalf, Twyne presented a necessity defense. He claimed that he was forced to drive when the designated driver who was driving the vehicle got into an argument with her husband and abandoned Twyne and the other passengers in the vehicle on the side of the freeway.

The jury found Twyne guilty of driving under the influence of alcohol (count 1, Veh. Code,1 § 23152, subd. (a)); driving with a .08 percent or more blood alcohol level (count 2, § 23152, subd. (b)); and misdemeanor driving with a suspended or revoked license (count 3, § 14601.1, subd. (a)). Twyne admitted that he had incurred a prior prison term and a strike prior conviction based on a 1998 conviction for making a criminal threat. At a bench trial, the court found that within 10 years of the current offenses Twyne had suffered three separate prior convictions for driving under the influence (two in 1996 and one in 2002), which elevated the current convictions on counts 1 and 2 from misdemeanors to felonies. (§ 23550, subd. (a).)

Refusal to Dismiss Strike Prior

At sentencing, Twyne moved to dismiss his strike prior conviction for making a criminal threat. The trial court denied his request. Twyne contends the court's ruling was an abuse of discretion.

The purpose of the three strikes law is to impose extended punishment on defendants who have previously committed violent or serious felonies and who again




commit a felony, thus showing they have not been rehabilitated or deterred from further criminal activity. (People v. Leng (1999) 71 Cal.App.4th 1, 14.) A trial court may dismiss a strike prior conviction if, in light of the nature and circumstances of the current and prior felony convictions and the particulars of the defendant's background, character, and prospects, the defendant is deemed outside the spirit of the three strikes law in whole or in part. (Pen. Code, § 1385, subd. (a); People v. Williams (1998) 17 Cal.4th 148, 161.) On appeal, we review the trial court's decision for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) The defendant must show that the trial court's refusal to dismiss the strike prior is so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.)

The record reveals the following criminal history. On February 24, 1996, Twyne was arrested for driving under the influence of alcohol. Two days later, on February 26, he was again arrested for the same offense. His blood alcohol level for these offenses was .17 and .12, respectively. He pleaded no contest to separate counts of misdemeanor driving under the influence. He was ordered to attend an alcohol program and placed on five years' summary probation. In February and November 1997, he engaged in a series of vandalisms, assaults, and threats directed at his girlfriend, including breaking her kitchen window on two occasions, punching her in the face, smashing the window and slashing the tire of her car, repeatedly threatening to kill her, and going to her home with a gun. For this conduct, he pleaded guilty in December 1997 to misdemeanor making criminal threats, battery, and vandalism. He was sentenced to 60 days in jail and placed on three years' summary probation.

In March 1998, Twyne again threatened to kill the same girlfriend; when he was arrested near her residence he was found to be in possession of a kitchen knife. For this offense, he pleaded guilty to felony criminal threat (incurring his strike prior conviction). He was placed on three years' formal probation, which included one year in jail. While on probation for this offense, he tested positive for a cocaine metabolite, failed to appear for testing on several occasions, and continued to contact and threaten the victim. In January 1999, his probation was revoked and he was sentenced to three years in prison.

Twyne was released from prison in February 2000. He was thereafter repeatedly sent back to prison for parole violations, including a June 2002 offense of misdemeanor driving under the influence (for which his blood alcohol level was .14 percent). In March 2005, he committed the current driving under the influence offense. The probation report indicates that at the time of sentencing there were two active restraining orders against him filed by two women (one of whom was his former wife) who were not involved in the 1998 criminal threats case.

Twyne argued that his criminal threat strike prior conviction should be dismissed because he did not injure anyone during the current offense, and the strike prior was remote in time and was not categorized as a strike offense when he pleaded guilty. He asserted he was not a criminally oriented person and that his problems stemmed from his alcohol addiction. He contended his future prospects were promising because he was remarried, had a child, had a volunteer ethic (as shown by his involvement in social service activities for veterans), had stable employment, and recognized he needed help to achieve sobriety.

After examining Twyne's past and current circumstances and criminal history, the trial court concluded Twyne did not fall outside the spirit of the three strikes law and declined to dismiss the strike prior. The court found the criminal threat was a serious offense and was not particularly remote. Further, the court found the current driving under the influence offense was serious because Twyne had repeatedly engaged in the behavior, he would "not stop," and "as a result, he [was] a danger to the community on the roadway."

The record supports the trial court's denial of Twyne's request to dismiss his strike prior. In 1996, 2002, and 2005, he drove while under the influence of alcohol. Rehabilitative and penal efforts designed to curb this potentially life-threatening behavior were not successful. In 1997, he repeatedly terrorized his girlfriend and was placed in jail and on probation. These sanctions did not deter his threatening and assaultive behavior; he again threatened the girlfriend in 1998, thereby incurring his criminal threat strike prior conviction. After his release from prison in 2000, he repeatedly violated parole (including driving under the influence in 2002 with a .14 blood alcohol level) and was returned to prison. In 2005 he engaged in the current driving under the influence offense with a .19 blood alcohol level. Thus, despite prior incarcerations and other interventions, Twyne continued to drive with highly elevated blood alcohol levels. Further, the existence of two restraining orders against him at the time of sentencing suggests continued problems with his conduct towards women. The trial court reasonably concluded Twyne was not outside the spirit of the three strikes law. The factors cited by Twyne to show his stability and motivations to change did not compel the trial court to reach a contrary conclusion.

Imposition of Upper Term

The trial court sentenced Twyne to prison for seven years. His sentence consisted of a three-year upper-term sentence for count 1, doubled to six years for the strike prior conviction, plus a one-year enhancement for a prior prison term enhancement. Sentence on count 2 was stayed, and sentence on the count 3 misdemeanor was imposed concurrently.

To support its selection of an upper-term sentence, the trial court found that Twyne's prior convictions were numerous and his past performance on probation had been unsatisfactory. Twyne argues the trial court's imposition of an upper-term sentence based on facts not found by the jury beyond a reasonable doubt violated his jury trial rights under the Apprendi rule.

A defendant has a constitutional right to have the jury, not the trial judge, decide all facts that increase the penalty for a crime beyond the prescribed statutory maximum. (Apprendi, supra, 530 U.S. at p. 490; Blakely v. Washington (2004) 542 U.S. 296, 301 (Blakely); Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 860] (Cunningham).) Under Apprendi and its progeny, the statutory maximum is "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Blakely, supra, 542 U.S. at p. 303, italics omitted.) Based on the high court's definition of "statutory maximum," if the sentencing judge selects a punishment which under the state penal statute requires factual findings beyond the facts encompassed in the guilty verdict, such judicial fact finding violates the defendant's jury trial right. (Id. at pp. 865, 868-869.) An exception to the Apprendi rule allows a sentencing court to enhance punishment beyond the statutory maximum based on "the fact of a prior conviction." (Blakely, supra, 542 U.S. at p. 301; Cunningham, supra, 127 S.Ct. at p. 860.)

Prior to a recent amendment of Penal Code section 1170, subdivision (b), the statutory maximum in California was the middle term. (Cunningham, supra, 127 S.Ct. at pp. 868, 871.)2 However, the California Supreme Court recently determined that even under the former version of the statute, the upper term is converted to the statutory maximum if the sentencing record shows that at least one aggravating circumstance was established in accordance with the Apprendi rule so as to render the defendant eligible for the upper term. (People v. Black (2007) 41 Cal.4th 799 (Black II)). In reaching this conclusion, the Black II court focused on (1) the United States Supreme Court's advisements that the key constitutional considerations are whether the state statute forbids the trial court from increasing the sentence above a certain term without judicial




findings beyond the jury's verdict and thus the defendant is legally entitled to that particular term, and (2) the feature of California's sentencing scheme that provides that a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (Id. at pp. 812-816.) Considering these matters, the court in Black II reasoned that when one aggravating circumstance has been established in accordance with constitutional requirements, the trial court is not forbidden from imposing the upper term, the defendant is not legally entitled to the middle term, and it follows that the upper term is the statutory maximum. (Ibid.)

The Black II court concluded that "imposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions." (Black II, supra, 41 Cal.4th at p. 816.) Thus, once the defendant is eligible for the upper term based on the establishment of a constitutionally permissible fact, "the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury." (Id. at p. 813.)

In Black II, the California Supreme Court examined the scope of the prior conviction exception and defined it as including "not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions." (Black II, supra, 41 Cal.4th at p. 819.) Illustrative of this interpretation of the prior conviction exception, the Black II court held the aggravating factors of numerous or increasingly serious prior convictions were within the prior conviction exception. The Black II court explained that findings of numerousness or increasing seriousness "require consideration of only the number, dates, and offenses of the prior convictions alleged"; the relative seriousness "may be determined simply by reference to the range of punishment provided by statute for each offense"; and these types of determinations were " 'quite different from the resolution of issues submitted to a jury' " and more appropriate for a court. (Id. at pp. 819-820.)

Here, one of the aggravating factors relied on by the trial court to impose the upper term was that Twyne had incurred numerous prior convictions. Based on our Supreme Court's holding in Black II, this factor was within the prior conviction exception to the Apprendi rule and made Twyne eligible for the upper term. Accordingly, the trial court did not violate Twyne's jury trial rights when it imposed the upper term.

Writ Petition

Twyne filed a petition for writ of habeas corpus with this court. He contends the evidence was insufficient to prove he suffered the two alleged 1996 convictions for driving under the influence.

The prosecution alleged that Twyne had committed prior driving under the influence (DUI) offenses on June 18, 2002, February 26, 1996, and February 24, 1996. At the bench trial on the three alleged prior DUI convictions, the prosecution presented booking photographs and fingerprint cards for the current 2005 offense and the 2002 offense. A fingerprint expert testified that the fingerprint cards for the 2005 and 2002 offenses were for the same person.

The prosecution also presented certified copies of the complaints and plea forms for the 2002 and 1996 offenses. In the plea form for the 2002 offense, Twyne admitted that he had incurred the two 1996 DUI convictions. Based on this admission, as well as signatures on the three plea forms that appeared to be the same, the prosecution argued the two 1996 convictions had been proven. Although conceding that the conviction for the 2002 offense had been proven, Twyne's counsel contended there was insufficient evidence to prove beyond a reasonable doubt that Twyne had incurred the 1996 convictions.

The trial court concluded the 1996 convictions had been proven beyond a reasonable doubt, noting that Twyne admitted them in the plea form for the 2002 offense and there was no dispute that he was the person in the 2002 offense.

The record supports a finding that the 1996 convictions were incurred and that Twyne is the person who incurred them. In his writ petition, Twyne has not made any showing that the certified copies of the 2002 and 1996 plea forms were fabricated or erroneous, or that he is not the person who committed the 1996 offenses. He has failed to present a prima facie case for relief, and according we summarily deny his petition. (People v. Duvall (1995) 9 Cal.4th 464, 475.)

DISPOSITION

The judgment is affirmed. The petition for writ of habeas corpus is denied.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.



1 Subsequent statutory references are to the Vehicle Code unless otherwise specified.



2 In Cunningham, the United States Supreme Court abrogated the California Supreme Court's ruling in People v. Black (2005) 35 Cal.4th 1238, vacated in Black v. California (2007) ___ U.S. ___ [127 S.Ct. 1210], that the upper term was the statutory maximum. The Cunningham court held that the statutory maximum was the middle term because under California's sentencing scheme the trial court was required to select the middle term unless it found an aggravating fact that was not an element of the offense found by the jury. (Cunningham, supra, 127 S.Ct. at pp. 868, 871.) In response to Cunningham, effective March 30, 2007, the California Legislature amended Penal Code section 1170, subdivision (b) to make the middle term a discretionary rather than presumptive term. (Stats. 2007, ch. 3, § 2; see People v. Sandoval (2007) 41 Cal.4th 825, 845-847.) Our analysis is premised on the former version of the statute.