Filed 6/20/14 P. v. Ewers CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMILLE JAVADO EWERS,

Defendant and Appellant.

 B249956

 (Los Angeles County

 Super. Ct. No. NA094004)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Judith Levey Meyer, Judge. Affirmed.

Ari Dybnis, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. 

Wilson, Erika D. Jackson, and John Yang, Deputy Attorneys General, for Plaintiff 

and Respondent.

________________________________
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INTRODUCTION

Jamille Javado Ewers appeals from a judgment and sentence, following a 

plea of no contest to three counts of residential burglary. He contends the trial 

court breached the plea agreement by refusing to provide him with a full and 

complete sentencing hearing. He further contends the court erred by imposing a 

10-year gang enhancement not supported by the evidence. Finding no reversible 

error, we affirm.

FACTUAL BAKGROUND AND PROCEDURAL HISTORY

In an amended felony complaint filed December 6, 2012, appellant and a 

codefendant were charged with three counts of first degree residential burglary

(Pen. Code, § 459).

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 All crimes were alleged to be serious felonies within the 

meaning of section 1192.7, subdivision (c), and two counts were alleged to be 

violent felonies within the meaning of section 667.5, subdivision (c) because a

person other than an accomplice was present in the residence during the 

commission of the offense. It was also alleged that the crimes were committed for 

the benefit of, at the direction of, or in association with a criminal street gang, with 

the specific intent to promote, further, and assist in criminal conduct by gang 

members (§ 186.22, subd. (b)(1)(B) & (C)). Appellant pled not guilty to all counts 

and denied the allegations. 

On January 23, 2013, the date set for the preliminary hearing, the trial court 

made an “open-plea offer.” The court stated that if appellant were willing to say 

he “did the crimes, and . . . did it with all the allegations involved and everything,” 

the court would put the matter over to a sentencing hearing, to determine any 

aggravating or mitigating factors and the particular sentence that would be 

imposed. The court noted that the People had made an offer of 15 years, four 

 

1

All further statutory citations are to the Penal Code. 
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months, but that appellant faced a maximum of 23 years, 8 months. The court 

noted that “just based on the straight crimes themselves without any other 

extraneous issues,” it felt that the case was “roughly worth” six years for appellant. 

“However,” the court went on to note, “the prosecution did alert me to numerous 

other factors that are aggravating and that one should very much consider upon 

sentencing.” Accordingly, the court explained that pursuant to its offer, the 

sentence would be “somewhere in between your minimum[] and your 

maximum[] . . . .” Addressing appellant, the court stated, “You’re looking at a low 

[of] 6 and a high of 15 years, 4 months,” adding, “if I sentence you to the max, 

there will be no withdrawal of [the] plea[] saying you had no idea what you were 

getting yoursel[f] into.” Finally, the court expressly stated that it was making no 

representations as to the actual sentence, other than that it would fall between the

minimum and the maximum. 

Appellant accepted the court’s offer. After being advised of and waiving his 

constitutional rights, appellant pled no contest to all the charges and admitted the 

gang allegations. Defense counsel stipulated to a factual basis for the plea. 

On March 14, 2013, appellant moved to withdraw his plea because he had 

already served six months, the gang allegation was “wrong,” and the prosecution’s 

case was weak. The motion to withdraw his plea was denied. 

That afternoon, the trial court held the sentencing hearing. During the 

hearing, the prosecution requested a 15-year, four month sentence be imposed 

based on several aggravating factors: (1) the crimes involved a high degree of 

callousness; (2) the victims were particularly vulnerable; (3) the defendant’s 

potential sentence included concurrent sentences for which he could have received 

consecutive sentences; (4) the manner in which the crimes were carried out 

indicated planning, sophistication, and professionalism; (5) appellant engaged in 
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violent conduct indicating a serious danger to society; and (6) appellant’s criminal 

history showed escalating seriousness from prior arrests to the current felony 

charges. 

The trial court then heard statements from appellant’s mother and his 

younger brother. The mother stated that appellant was not a gang member, and 

that he received disability benefits, as he suffers from insomnia, obesity, and other 

medical conditions. The brother stated that appellant was not a gang member, that 

he “got caught up with the wrong crowd,” that he wanted to become a mechanic, 

and that he would have his family as support to pursue his goals. Appellant’s 

counsel indicated he wanted to present a rap music video appellant had made to 

show that the appellant was not a gang member, but merely an aspiring rap artist 

who used gang iconography for theatrical effect. The court stated, “we are pressed 

for time.” Appellant’s counsel requested that the court look at the video for 

30 seconds. The court questioned the relevance of the evidence, as appellant had 

admitted the gang allegation, but thereafter allowed appellant’s counsel to play

30 seconds of the video. 

Appellant then made a statement, apologizing for his actions and asking for 

leniency. Defense counsel argued that the court should impose a six-year sentence, 

as no evidence showed the victims were specifically targeted or that appellant was 

a gang member. He began arguing that appellant had cooperated with the 

investigating officers by assisting them in locating some of the stolen items when 

appellant interrupted, stating the argument was not “even relevant to the case.” 

Subsequently, the court stated that it had heard enough. Defense counsel indicated

he had additional argument, but the court stated: “I’m going to cut you off. Your 

client managed to do that for you.”
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The court sentenced appellant to state prison for a total of 12 years, 

consisting of the low term of two years on all counts, to be served concurrently, 

and a 10-year gang enhancement on the base count pursuant to section 186.22, 

subdivision (b)(1)(C). It struck the gang allegations as to the other counts. 

Appellant timely noticed an appeal, but did not seek a certificate of probable 

cause. 

DISCUSSION

Appellant seeks a new sentencing hearing. He contends the trial court had 

promised that it would impose a six-year sentence, unless there were aggravating 

or mitigating factors that would cause the court to deviate from its initial 

assessment of the “worth” of the case. Appellant further contends the court 

breached the plea agreement by (1) imposing the 10-year gang enhancement 

pursuant to section 186.22, subdivision (b)(1)(C) despite the lack of evidence 

supporting that enhancement, and (2) denying him a full and complete opportunity

to present his mitigating evidence and to challenge adverse evidence. We disagree.

The court did not breach the plea agreement by imposing the 10-year gang 

enhancement and sentencing appellant to a total of 12 years in prison. No promise 

was made that absent aggravating circumstances shown at the sentencing hearing, 

the default sentence would be six years. Rather, the trial court offered appellant a 

sentence of between six years and 15 years, four months, if he pled to all of the 

charges and allegations. The court expressly stated that it was making no 

representation about the final sentence to be imposed. It did not represent that it 

would strike the 10-year gang enhancement. At most, the court’s comments could 

be construed to acknowledge the court’s discretion to strike the gang enhancement 

if it determined that doing so would be in the interests of justice. (See § 186.22, 

subd. (g) [“the court may strike the additional punishment for the enhancements 
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provided in this section . . . in an unusual case where the interests of justice would 

best be served, if the court specifies on the record and enters into the minutes the 

circumstances indicating that the interests of justice would best be served by that 

disposition”].) The sentence imposed -- 12 years -- was within the range given 

appellant at the time of his plea and admission. The court neither promised -- nor

was obliged -- to strike the gang enhancement, and by imposing the 10-year 

enhancement, impliedly found the interests of justice would not be served by 

striking it. 

Appellant’s contention that insufficient evidence was presented at the 

sentencing hearing to support the gang enhancement must be rejected. Appellant’s 

admission of the gang allegation constituted substantial evidence to support 

imposition of the 10-year gang enhancement. In light of appellant’s admission, he 

cannot challenge the factual basis for the gang enhancement without first obtaining 

a certificate of probable cause. (People v. Zuniga (2014) 225 Cal.App.4th 1178, 

1187.) This he has not done.

We further reject appellant’s contention that the trial court breached the plea 

agreement and denied him due process by failing to afford him a full and complete 

sentencing hearing. A defendant has a right to present mitigating evidence and to 

respond to adverse sentencing information at the sentencing hearing. (People v. 

Arbuckle (1978) 22 Cal.3d 749, 753.) However, a defendant is entitled to relief on 

due process grounds only if the hearing procedures are “‘fundamentally unfair.’” 

(Id. at p. 754, italics omitted.) Thus, “short of a total preclusion of defendant’s 

ability to present a mitigating case to the trier of fact, no due process violation 

occurs.” (People v. Thornton (2007) 41 Cal.4th 391, 452-453.) Here, the court 

heard statements from appellant, his mother and his younger brother. At defense 

counsel’s request, the court also viewed a portion of a video, and heard argument 
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from defense counsel. The limitation on further argument did not rise to the level 

of a due process violation. (See id. at p. 453 [limitation of defense witness 

testimony, even if an abuse of discretion, “fell well short of constituting a due 

process violation”].) Moreover, the thrust of appellant’s sentencing argument was 

that he was not a gang member. While the trial court might have -- but was not 

required to -- consider this a factor in mitigation, it did not undermine the factual 

basis for appellant’s admission of the gang allegation, as gang membership is not a 

requirement for the imposition of the gang enhancement. (See, e.g., People v. 

Villalobos (2006) 145 Cal.App.4th 310, 321-322 [affirming imposition of gang 

enhancement as to nongang member, as she assisted gang member in committing 

burglary for benefit of gang].) In short, the court did not breach the plea agreement

by refusing to afford appellant a full and complete hearing. Accordingly, appellant 

is not entitled to a new sentencing hearing.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MANELLA, J. 

We concur:

WILLHITE, Acting P. J. EDMON, J.*

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* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.