People v. James CA2/3 ( 2014 )

Filed 10/1/14 P. v. James CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B254611
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA099220)
v.
MARQUIS WAYNE JAMES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Mike
Camacho, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
Marquis Wayne James appeals from the judgment entered following his plea of
nolo contendere to 10 counts of second degree robbery (Pen. Code, § 211)1 and one count
of attempted second degree robbery (§§ 664, 211), during each of which he personally
used a handgun (§ 12022.53, subd. (b)) and a principal was armed with a handgun
(§ 12022, subd. (a)(1)), and his admissions he committed the offenses while released
from custody on bail (§ 12022.1) and after he had suffered convictions for three offenses
for which he served prison terms pursuant to section 667.5, subdivision (b). The trial
court sentenced James to a total term of 40 years 4 months in state prison.2 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts3
On August 6, 2012, Lindsey Montgomery4 was the manager of a McDonald’s
restaurant in Pomona. When she arrived at the restaurant at approximately 4:00 o’clock
that morning, Montgomery was approached by two African-American men wearing
baseball caps, “black rag[s] over their face[s]” and gloves. At least one of the men was
carrying a handgun. The man with the gun told Montgomery to open the store, take the
men to the safe and open it. When Montgomery became nervous and had difficulty
opening one of the two safes in the store, the man with the gun held it up to her head and
told her she had 10 seconds to open the safe “or he would kill [her].” Montgomery was
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
The trial court sentenced James at the same proceedings for his convictions of
robbery and attempted robbery, as well as his conviction for being a felon in possession
of a firearm (§ 29800, subd. (a)), the offense for which he had been released on bail when
he committed the robberies and attempted robbery.
3
Since James entered pleas of nolo contendere to the offenses, the statement of
facts has been taken from the transcript of the preliminary hearing held with regard to the
alleged robberies and attempted robbery.
4
When the witness was asked to spell her name she indicated it was
“M-o-n-g-o-m-e-r-y.” However, in the transcript of proceedings it is spelled
“M-o-n-t-g-o-m-e-r-y.”
2
able to open both safes and, after one of the men grabbed a bag from the store, the men
took the money from the safes, placed it in the bag, told Montgomery, who was sitting on
the floor with her head down, to count to 100, then left the store. Montgomery counted to
10, then pushed the “panic buttons” and telephoned her store supervisor. Montgomery
made the call from the store phone because her cellular telephone was missing.
Montgomery later identified her phone when it was shown to her by a police officer.
At approximately 8:00 p.m. on August 20, 2012, Adriana Garay was working as
the cashier at the Juan Pollo restaurant in Pomona. Two African-American men wearing
bandanas, black hats and black shirts came into the restaurant and, although Garay was
not standing by the register at the time, the men approached her. One of the men placed a
gun next to Garay’s back and walked her to the cash register. Garay opened the register
and while one man was taking the money out of the drawer, she realized the other man
was holding at gun point two of her coworkers, Gabriela Salvador and Adullman
Vasquez. Both employees were on their knees. Garay then looked out the restaurant
window and saw Salvador’s mother pull up in a car. Garay, afraid someone was going to
get hurt, asked the men to leave.
When one of the robbers then kicked Salvador, who was pregnant, in the left side,
Garay believed the robbers were beginning to panic and she began to scream, telling the
men to “just please leave.” Salvador, who was still on her knees, directed the men to the
back door. The men followed her directions and left the restaurant.
On August 24, 2012, Nicholas Pro, his girlfriend, Brittney Chavez, and his
grandparents, Helen Canedo and Fernando Canedo, were having dinner at the
Las Margaritas restaurant in Pomona. While Pro and his guests were eating their meal,
three men with dark eyes and dark skinned arms, each of whom had his face covered with
a bandana, entered the restaurant. One man, who was carrying a rifle, approached Pro’s
table and told Pro and the others to “[j]ust behave.” While Pro watched one of the other
two men approach the counter where the cashier was standing and the other man walk
into the kitchen, the man with the rifle told Pro and the others at the table to empty their
pockets. Pro complied with the demand and placed his wallet and car keys on the table.
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Pro’s grandfather took the money from his pocket and placed it on the table and his wife,
Helen, placed her purse on the table. After the man with the rifle took Pro’s cell phone,
his grandfather’s money and the cash from his grandmother’s purse, he left the dining
room.
At about the same time Pro and his family were eating their dinner, Pedro Sandro
was working in the kitchen of the Las Margaritas restaurant. When someone hit him on
the back of the head, Sandro turned around and saw an African-American man wearing a
hat and a rag covering his face. The man placed a gun against Sandro’s head and told
Sandro and another man who was present, the dishwasher, Severo Morales, to lie down
on the ground, face down. Once Morales was lying on the floor, the man kicked him on
his left side, then took from his pocket Morales’s money and the keys to the restaurant.
The man with the gun then approached Sandro and, after Sandro gave the man his
wallet, the man had Sandro get up and open the cash register at the take-out window in
the kitchen. The man took the money from the drawer, then told Sandro to lie back down
on the ground and place both his hands behind his head. A second African-American
man, whose face was also covered, then brought a third restaurant employee, a waitress,
Maribel Serrano, into the kitchen. After one of the two men pulled off Serrano’s apron,
he threw her onto the ground.
Serrano, who usually worked as a waitress, had been working at the cash register
in the restaurant when two men, their faces covered with “handkerchiefs,” approached
her. While one man walked around behind her, the other man stood in front of Serrano,
aimed a gun at her and told her to open the register. After Serrano did so, the man
reached into the drawer and took the money. While the second man then headed toward
the kitchen, the man with the gun asked Serrano if she knew where the safe was. When
Serrano told the man she did not, he grabbed her by her clothing and escorted her to the
warehouse. When she still insisted she did not know where the safe was, the man took
from a pocket in her apron her wallet, which contained her driver’s license, money and
her bank card, then took her into the kitchen, threw her down onto the floor and asked her
“who would know about the safe.” Serrano again told the man she did not know. A third
4
African-American man, whose face was also covered and who was carrying a rifle and
wearing a long coat, then came into the kitchen. When the man with the rifle indicated it
was time to “go,” the three men left the restaurant.
Pomona Police Department Detective Greg Freeman had been the officer assigned
to investigate the series of robberies. After Freeman reviewed the video tape from each
of the restaurants, he received information that appellant, James, had been involved in
each of them. When the detective contacted James on August 29, 2012, he was wearing a
baseball cap just like the one in the video tapes of the robbers taken at each of the
restaurants. Freeman then went to the apartment of one of James’s accomplices and
found Montgomery’s cell phone. James, however, indicated the phone belonged to him.
When Freeman interviewed James’s girlfriend, Kiera Thomas, Thomas told the
detective that James and his cohorts had planned the robberies approximately a week
before they occurred and, during the robberies, had taken approximately $25,000. James
had given Thomas approximately $2,000 to “hold at her apartment” in case he was
arrested and needed money for bail.
James was taken into custody on August 29, 2012. After having been advised on
his Miranda5 rights, he admitted having taken part in the August 6 robbery of the
McDonald’s restaurant. Although he denied having been involved in the robberies of the
other two restaurants, recordings of telephone calls made from jail to his girlfriend
indicated he believed he knew who had “told on him” and he had been “dumb for
wearing the [same] hat [to] all three robberies.”
2. Procedural history.
In an information filed November 26, 2012, James was charged with 10 counts of
robbery (§ 211) and one count of attempted robbery (§§ 664, 211), during each of which
he was personally armed with a firearm (§12022.53, subd. (b)) and a principal was armed
with a firearm (§ 12022, subd. (a)(1)). It was further alleged he had committed the
5
Miranda v. Arizona (1966) 384 U.S. 436.
5
offenses after having been released on bail (§ 12022.1) and had served prison terms for
three prior convictions within the meaning of section 667.5, subdivision (b).
On January 23, 2013, James asked the trial court for a Marsden6 hearing. James
indicated he had asked his counsel to make a section 995 motion to have the information
set aside and a motion for discovery of the tape recordings of the robberies. He asserted
counsel had failed to act on either of his requests. James stated his counsel had
responded to his requests by advising him to “ ‘just take the 30 years’ ” being offered by
the People.
The trial court noted that, on August 7, 2012, James had been taken into custody
for being a felon in possession of a firearm and ammunition. A plea had been taken in
the matter on August 20, 2012. James had been released on bail and sentencing had been
set for September 10, 2012. However, in the interim, James had been “picked up” the
alleged robberies and attempted robbery. With the assistance of defense counsel, the trial
court determined James’s exposure with regard to both cases (the possession of a firearm,
to which he had pled “open,” and the robberies and attempted robbery) amounted to
approximately 75 years in prison. Defense counsel then informed the trial court that,
during her negotiations with the prosecutor, he had indicated he would go no lower than
30 years in prison because, while James’s case for possession of a firearm was pending,
he allegedly committed numerous violent offenses. It had been alleged James had
committed 10 robberies and an attempted robbery, each of which involved the personal
use of a firearm.
Defense counsel then addressed the trial court and indicated she had met and
discussed with James the police reports and some of the evidence recovered by police
officers. In particular, she had told James about the tape recordings of telephone calls he
had made to his girlfriend from jail and indicated to him they were especially
“incriminating.” With regard to James’s request that counsel make a section 995 motion,
counsel indicated she had not yet decided whether to proceed. As to James’s request for
6
People v. Marsden (1970) 2 Cal. 3d 118.
6
discovery, counsel stated she did not need to make such a motion as the prosecutor had
already provided her access to the requested evidence.
Defense counsel indicated, since James had informed her that he did not wish to
accept the People’s offer of 30 years, she would take the case to trial. However, by doing
so, James would be “exposing himself to all 11 counts rather than a plea disposition
where most of the counts would be dismissed.” Counsel continued, “And he’s exposing
himself to a significant period of time in state prison.” “I’ve given [James] my
assessment of the case.”
After defense counsel informed the trial court of the evidence the People could
present against James at trial, the court concluded counsel was familiar with and had
“worked hard to assess the strength of the case.” The trial court did not view James’s and
his counsel’s discussions regarding the potential disposition of his case as a “breakdown”
in their relationship such that counsel could not continue to “diligently . . . represent”
James. The trial court indicated, although it could understand James’s frustration with
his case, it did not believe his counsel had “failed [in any way] to comply with her
professional obligations and responsibilities.” Accordingly, the court denied James’s
motion.
At proceedings held on August 28, 2013, James decided to enter an “open” plea.
After waiving his right to a trial, to confront and cross-examine the witnesses against
him, his right to produce evidence and present a defense and his right to remain silent,
James pled nolo contendere to 10 counts of second degree robbery (§ 211) and one count
of attempted second degree robbery (§§ 664, 211), during each of which he personally
used a handgun (§ 12022.53, subd. (b)) and a principal was armed with a handgun
(§ 12022, subd. (a)(1)). In addition, he admitted having committed the offenses while
released from custody on bail (§ 12022.1) and after having suffered three convictions for
which he had served prison terms within the meaning of section 667.5, subdivision (b).
On December 10, 2013, the trial court sentenced James. As to the robberies and
attempted robbery, the court chose the robbery alleged in count 2 as the base term and
imposed the midtem of three years in state prison. For the robberies alleged in counts 1,
7
3, 5, 7 and 10, the court imposed consecutive terms of the low-term of one year as to each
count. For the robberies alleged in counts 4, 6, 8 and 9, the trial court sentenced James to
concurrent terms of the midterm of three years for each count and for the attempted
robbery alleged in count 11, the trial court sentenced James to a concurrent term of two
years. For his conviction of possession of a firearm by a felon in violation of section
29800, subdivision (a)(1), the crime for which he had been released on bail when he
committed the robberies and attempted robbery, the court imposed a consecutive term of
eight months.
As to the enhancements, for James’s personal use of a handgun during the
robberies and attempted robbery within the meaning of section 12022.53, subdivision (b),
the trial court imposed a term of 10 years with regard to count 2, a term of one-third the
midterm, or three years four months with regard to count 1, a term of three years four
months with regard to count 3, a term of 10 years with regard to count 4, a term of three
years four months with regard to count 5, a term of 10 years with regard to count 6, a
term of three years four months with regard to count 7, a term of 10 years with regard to
count 8, a term of 10 years with regard to count 9, a term of three years four months with
regard to count 10 and a term of 10 years with regard to count 11. The trial court then
ran the terms imposed for counts 4, 6, 8, 9 and 11 concurrently.
For the finding James committed the robberies and attempted robbery while
released on bail pursuant to section 12022.1, the trial court imposed a term of two years
with regard to the robbery alleged in count 2.7 As to the remaining counts, the court
stayed imposition of sentence pursuant to section 654.8 Punishment for the finding with
7
At the same proceedings, the trial court imposed a sentence of eight months for
James’s conviction of possession of a firearm by a felon (§ 29800, subd. (a)(1)), the
offense for which he had been out on bail when he committed the robberies and
attempted robbery.
8
Section 654 provides in relevant part: “(a) An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
8
regard to each of the 11 counts that a principal had been armed with a firearm pursuant to
section 12022, subdivision (a)(1) was stricken pursuant to section 1385, subdivision (a).9
The trial court found that “imposition of the 10 year gun use enhancement [was]
punishment enough for the conduct involved.” For his conviction of the three offenses
for which he served prison terms pursuant to section 667.5, subdivision (b), the trial court
imposed a total of three years in prison. Finally, the trial court determined James’s
sentence was to be served in state prison pursuant to sections 1170, subdivision (a),
1170.1, subdivision (a) and 1170, subdivision (h)(3). In total, the trial court sentenced
James to 40 years 4 months in state prison.
The court ordered James to pay $560 in restitution fines (§ 1202.4, subd. (b)), a
suspended $560 parole revocation restitution fine (§ 1202.45), a $10 fine because he was
convicted of several counts of robbery (§ 1202.5), a $480 court operations assessment
(§ 1465.8, subd. (a)), a $ 360 conviction assessment (Gov. Code, § 70373) and restitution
to the victims, the amount of which was to be determined at a later proceeding. The court
awarded James presentence custody credit for 940 days actually served and 140 days of
good time/work time, or a total of 1,080 days for both the case in which he unlawfully
possessed a firearm and the matter in which he was found to have committed the
robberies and attempted robbery. James filed a timely notice of appeal from the case in
which he was convicted of the robberies and attempted robbery on February 3, 2014. He
filed a request for a certificate of probable cause on February 21, 2014. The trial court
denied the request for a certificate of probable cause on February 21, 2014.
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.”
9
Section 1385, subdivision (a) provides in relevant part: “The judge . . . may, either
of his or her own motion or upon the application of the prosecuting attorney, and in
furtherance of justice, order an action to be dismissed.”
9
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no
issues and requested this court to conduct an independent review of the record. By notice
filed June 17, 2014, the clerk of this court advised James to submit within 30 days any
contentions, grounds of appeal or arguments he wished this court to consider. No
response has been received to date.
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully
with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People
v. Wende (1979) 25 Cal. 3d 436, 443.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
We concur:
KITCHING, J.
ALDRICH, J.
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