Filed 6/20/14 P. v. E wers 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 JA VADO EWERS
,
Defendant and Appellant

. B 2 4 9956
(Los Angeles County Super. Ct. No. NA094004 )

APPEAL from a judgment of the Superior Court of Los Angeles County, Judith Levey Meyer
, Judge. Affirm ed

. Ari Dybnis, under appointmen t by the Court of Appeal, for Defendant and Appella nt

. 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 Attorn eys General, for Plaintiff and Respondent

.

________________________________2 INTRODUCTION
Jamille Javado Ewers appeals from a judgment and sentence, f ollowing a plea of no contest to three counts of residential burglary

. He contends the trial
court brea ched the plea agreement by refusing to provid e him with a full and complete sentenci n g 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 BAK GROUND AND PROCEDURAL HISTORY
In an a mended felony complaint filed December 6, 2012, appellant and a
codefendant w ere charged with three count s of first degree residential burglary (Pen. Code, § 459 )

. 1 All crimes were alleged to be serious felonies withi n 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 of

fense . 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

m embers (§ 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 w ere willing to say
he “ did the crimes, and

. . . did it with all the allega tions 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 cour t noted that the People had made an offer of 15 years, four

1 All further statutory citations are to the Penal Code.3

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 wa s “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 pu rsuant to its offer, the sentence would be “somewhere in between your minimum[] and your maximum[]

. . . . ” A ddressing 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,

t here 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
minimu m 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 admi tted the gang allegation s

. 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 crime s involved a high degree of callousness; (2) the victim s 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 in4

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 hea rd 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 u p with the wrong crowd,” that he wanted to become a mechanic,
and that he would have his family as support to pursue his goals. A ppellant ’ s counsel indicated he wanted to present a rap music video appellant had ma de to show that the appellant was not a ga ng 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 appel l a nt was a gang member . He began argui n g that appellant had cooperated with the investigating officers by assisting them in locating so me of the stolen items when

appe llant interrupted, stating the argument was not “even relevant to the case.” Subsequently, the court stated that it had heard enough. D efense counsel indicated
he had additi onal argument
, but the court stated : “I’m going to cut you off. Your client managed to do that for you. ”5

T he court sentenced appellant to state prison for a total of 12 years
, consisting of the low term of two year s on all counts, to b e 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 alleg ations 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 conten ds 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. N o promise was made that absent aggr avating circumstances shown at the sentencing hearing, the default sentence would be six years. Rather, t he trial court offered appellant a sentence of between six years and 15 years, four months, if he ple d to all of the charges and allegations. T he cou rt 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 discretio n 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 enhancements6

provided in this section

. . . in an unusual case where th e interests of j ustice 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 w ithin the range given appellant at the time of his plea and admission. The court neither promised

-- no r was obliged

-- to strike the gang enhancement, and by imposing the 10

- year enhancement, implied ly found the interests of justice would not be served b y 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 impo sition 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 Ca l.App. 4th 1178,
1187 .) This he has not done. We further reject appe llant ’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 st atements from appellant, his mo ther and his younger brother. At defense counsel’s request, the court also viewed a portion of a video, and heard argument7

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, t he 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 t he 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 no t breach the plea agreement by refusing to afford appellant a full an d complete hearing. A ccordingly, a ppellant 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.*

______________________________________________ __________________________ * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the Cali fornia Constitution.