Filed 6/25/15 P. v. Blackmon CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

THE PEOPLE,
                                                                                           F068462
         Plaintiff and Respondent,
                                                                                    (Madera Super. Ct.
                   v.                                                                No. MCR045570)

JASON KYLE BLACKMON,
                                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea,
Judge.
         Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-




         *   Before Levy, Acting P.J., Gomes, J. and Detjen, J.
                                    INTRODUCTION
       Appellant/defendant Jason Kyle Blackmon pleaded guilty to attempted murder and
was sentenced to nine years. On appeal, his appellate counsel filed a brief that
summarizes the facts with citations to the record, raises no issues, and asks this court to
independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) By
letter on April 24, 2014, we invited defendant to submit additional briefing. Defendant
has filed a letter brief and claims his defense attorney was prejudicially ineffective and
misled him during plea negotiations. We affirm.
                                          FACTS1
       On February 17, 2013, defendant and his wife were at his sister’s house. They
were in the midst of a contentious divorce. Defendant knew his wife had an affair with
John K. (John), the victim, but thought they could work out their problems.
       John drove up to the residence of defendant’s sister. When he arrived, defendant’s
wife walked up to his car; defendant also appeared. John did not know defendant was at
his sister’s house. Defendant approached John’s car, and John exited his vehicle.
Defendant asked John why he was there. Suddenly, defendant stabbed John in the
shoulder and stomach. John suffered a three and one-half inch horizontal wound to his
stomach.
       When defendant was taken into custody, he claimed to have consumed 15 shots of
vodka. Defendant’s wife said she had six to eight shots of vodka. Defendant’s wife
reported that defendant previously made numerous comments about killing John.
Defendant later claimed that John regularly threatened him and said he carried a gun.




       1The facts are from the probation report and the reports from the sheriff’s
department, which were introduced as exhibits at the plea hearing and included within the
probation report.


                                             2.
Procedural history
       On February 20, 2013, a complaint was filed in the Superior Court of Madera
County charging defendant with attempted premeditated murder (Pen. Code, §§ 664/187,
subd. (a)),2 with enhancements for personal use of a deadly weapon, a knife (§ 12022,
subd. (b)(1)), and personal infliction of great bodily injury (§ 12022.7, subd. (a)).
       On February 20, 2013, defendant appeared with his appointed counsel and pleaded
not guilty.
       On March 19, 2013, defendant substituted Scott Levy, a privately retained
attorney, in place of his appointed counsel.
Plea proceedings
       On August 30, 2013, defendant appeared at a change of plea hearing with Mr.
Levy. Mr. Levy stated there had been “extensive discussions with the Court” for a
negotiated disposition. Mr. Levy said the prosecutor would strike the premeditation
allegation, which would result in a possible sentence of either five, seven, or nine years;
defendant would enter an open plea; and the defense would introduce mitigating evidence
at the sentencing hearing. The prosecutor agreed with the terms and moved to dismiss
the premeditation allegation. The court asked defendant if there had been any other
promises made to him to induce a plea. Defendant said no.
       The court dismissed the premeditation allegation. It reviewed defendant’s change
of plea form, and asked defendant if he read, understood, initialed, and signed the
document. Defendant said yes. The court asked defendant if he had sufficient time to
speak with his attorney about the change of plea, and defendant said yes.
       The court advised defendant of his constitutional rights; defendant stated he
understood and waived his rights.



       2   All further statutory citations are tot the Penal Code unless otherwise indicated.


                                               3.
       The prosecutor asked the court to consider the reports from the sheriff’s
department as the factual basis. Defense counsel did not object, and the court accepted
the reports into evidence as exhibits.
       The court advised defendant that as a result of his plea to attempted murder, he
could be incarcerated for up to nine years; defendant said he understood. Thereafter,
defendant pleaded guilty to attempted murder.
       The prosecutor reminded the court that defendant had not admitted the
enhancements.

       “THE COURT:           … That wasn’t discussed as part of the agreement
       when he entered his plea. So … what [the prosecutor] is suggesting is that
       not only are you pleading to the maximum of nine years on the underlying
       felony, the violation of [sections] 664/187, the attempted murder, but there
       are also sentencing enhancements that include the use of a deadly weapon
       and the fact that great bodily injury resulted from your crime. Those
       weren’t included in the plea form either.

       “MR. LEVY:           I can interlineate those.

       “THE COURT:          Well, they need to be included in the plea form
       because it’s going to impact his exposure is [sic] significantly more than
       nine years.

       “[THE PROSECUTOR]: It adds three, four more years total.

       “THE COURT:          All right. [D]o you understand, sir, that with the
       addition of the special allegations you could be incarcerated for up to 14
       years? Do you understand that, sir?

       “THE DEFENDANT:              Yes.

       “THE COURT:         Does that change your decision in any way to enter
       into the plea agreement?

       “THE DEFENDANT:              No.” (Italics added.)
       Defendant admitted the personal use and great bodily injury enhancements.




                                             4.
Sentencing hearing
       On October 3, 2013, defendant appeared for the sentencing hearing with Mr. Levy.
The court stated it had read the probation report, defendant’s sentencing statement in
mitigation, and letters submitted by John.
       Mr. Levy asked the court to impose “the nine-year suspended lid” and place
defendant on probation with time in county jail. Mr. Levy argued the prosecutor had
overcharged the case as attempted murder instead of assault; defendant believed John was
carrying a loaded weapon and looking for him; and defendant acted in the heat of passion
because he and John were fighting over the same woman.
       Defendant addressed the court and said he was not a violent man, and he truly
believed John was going to shoot and kill him that night. Defendant said he was terrified
and was trying to protect his wife and family. He had no “ill will” against John and was
sorry it happened; he wished John and his wife well in their future relationship.
       Defendant said:

       “I turned down a five-year offer from the DA so I could have a chance for
       probation and to prove myself to this Court and to my children. The
       smallest chance was worth it to possibly … be with my boys again. They
       are my world.

              “Again, I was just a man that made a huge mistake. I thought I was
       protecting my life and my family’s. Please show mercy so I can make this
       Court and also my boys proud of me again. I am sorry and remorseful to
       the victim.” (Italics added.)
       The prosecutor stated that while defendant was remorseful, he needed to be held
accountable for his conduct. Defendant committed an unprovoked attack upon John, and
it was pure luck that John survived. There was no evidence from anyone, aside from
defendant’s self-serving statements, that John had threatened defendant or that he was
carrying a gun that day. There was no evidence of mutual combat or a fight, and John did
not touch or provoke defendant in any way.



                                             5.
        Mr. Levy replied that defendant was accepting full responsibility and probation
was appropriate because “this is a heat of passion where he’s with his family during
family time and the estranged lover comes over to his house.”
        The court stated defendant was ineligible for probation because he used a deadly
weapon and intentionally inflicted great bodily injury, and it was not an unusual case
where the interests of justice would be served by probation.
        The court found the mitigating factors outweighed the aggravating factors and
imposed the lower term of five years, plus three years for the great bodily injury
enhancement and one year for the personal use enhancement, for an aggregate term of
nine years. The court imposed a criminal protective restraining order for defendant to
stay away from J.K.
        On November 22, 2013, defendant filed a timely notice of appeal. He requested
and received a certificate of probable cause, based on his claim that defense counsel was
ineffective during plea negotiations and misrepresented the prison term he was going to
receive.
                                      DISCUSSION
        As noted above, defendant’s counsel has filed a Wende brief with this court. In
response to this court’s notice, defendant filed a letter brief and contends his attorney was
ineffective and misled him about the plea negotiations. Defendant asserts his attorney
convinced him not to take a five-year deal allegedly offered by the prosecutor; and his
attorney said they could “do better” and “get probation” by submitting an open plea.
Defendant claims he wanted to fight the case instead of taking a plea, but his attorney
said the plea was his only option and he would get either probation or five years at the
most.
        Defendant also complains the special allegations were added during the plea
hearing, and he was too scared and distraught to understand what was going on.



                                             6.
Defendant said he was shocked when he received nine years. He asked his attorney what
was going on, and his attorney said he did not know.
       A defendant’s guilty plea and waiver of constitutional rights must be knowing,
intelligent, and voluntary—“made with a full awareness of the nature of the right being
waived and the consequences of the waiver….” (People v. Smith (2003) 110 Cal.App.4th
492, 500.) As set forth above, the court carefully advised defendant of the consequences
of his plea to attempted murder. When the court addressed the enhancements, it advised
defendant of the potential additional terms that would result from his admissions, and
asked whether he still wanted to enter the plea. Defendant said yes.
       Defendant was well aware that he was not guaranteed probation, and he faced
substantially more time than five years. Defendant’s statements at the sentencing hearing
reflect this knowledge as he pleaded for mercy and asked the court for the “chance” to be
placed on probation. “A plea may not be withdrawn simply because the defendant has
changed his mind. [Citation.]” (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)
“Postplea apprehension (buyer’s remorse) regarding the anticipated sentence, even if it
occurs well before sentencing, is not sufficient to compel the exercise of judicial
discretion to permit withdrawal of the plea of guilty. [Citation.]” (People v. Knight
(1987) 194 Cal.App.3d 337, 344.)
       After further independent review of the record, we find that no reasonably
arguable factual or legal issues exist.
                                          DISPOSITION
       The judgment is affirmed.




                                              7.
