Filed 7/12/16 P. v. Spragans CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A142695
v.
DAMEON SPRAGANS,                                                     (Contra Costa County
                                                                     Super. Ct. No. 05-110797-8)
         Defendant and Appellant.




         By plea agreement, Dameon Spragans entered a plea of guilty to charges of
forcible rape while acting in concert with another person, forcible oral copulation while
acting in concert with another person, and forcible sodomy while acting in concert with
another person. As part of this negotiated disposition, appellant agreed to testify
truthfully for the prosecution in the trial of two co-defendants. For its part, the
prosecution dismissed all other charges and recommended that Spragans receive a
sentence totaling 31 years in prison.
         Spragans later reneged on his agreement to testify and moved to withdraw his
plea. That motion was denied, and he was sentenced to a total of 42 years in prison, the
maximum prison time for the crimes he had admitted. On appeal, appellant’s appointed
appellate counsel filed a brief asking this court to conduct an independent review of the
record under People v. Wende (1979) 25 Cal.3d 436. Counsel also informed appellant of
his right to file a supplemental brief. No such supplemental submission has been
received.


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          Having reviewed the record independently, we find no issues that require briefing.
We therefore affirm.
                                         I. BACKGROUND
          A. The Kidnapping and Sexual Assault of Doe1
          Appellant and his cousins, Derrick Ware and Robert McNeally, spent the evening
of February 13, 2010 at the Blue Macaw nightclub in the Mission District in San
Francisco. Across the street from the Blue Macaw, at the Medjool nightclub, Jane Doe
and a male friend, S. Mungia, were spending the evening with some friends of theirs.
Appellant, Ware, and McNeally left the Blue Macaw at around 1:00 a.m., just as Doe and
Mungia were leaving the Medjool.
          Doe and Mungia, who were very drunk, tried to hail a cab to take them to a
friend’s house in San Francisco. Appellant, Ware and McNeally offered them a ride,
which they accepted. All five then got into McNeally’s black Ford Silverado truck, with
McNeally driving, appellant in the front passenger’s seat, and Ware in the backseat with
Doe and Mungia. Doe and Mungia immediately passed out. Mungia awoke a short time
later while the truck was crossing the Bay Bridge, headed east, and realized that
appellant, Ware and McNeally were not dropping them off in San Francisco as promised.
          While the truck continued to head east, appellant was making derogatory remarks
to Mungia and Ware was fondling Doe in the backseat. At approximately 1:30 a.m., the
group reached Richmond and McNeally pulled off the freeway so that appellant and
Mungia could urinate by the side of the road. While Mungia and appellant were outside
the truck, appellant punched Mungia in the face. Mungia fell to the ground, and
appellant climbed back into the truck, which then sped off, leaving Doe alone in the
company of appellant, Ware and McNeally. Mungia immediately called police to report
the kidnapping of Doe.
          Appellant, McNeally and Ware proceeded another four miles, and stopped along a
road in San Pablo. By that point, Doe had awoken, and pleaded to be taken home, but

          1
              The statement of facts is based in large part on the facts set forth in the probation
report.

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appellant told her she would “have to do something if we’re going to take you home” and
“we’re going to put it in you.” He told her she was gong to have to “suck [his] dick.”
Doe attempted to fight her way out of the vehicle, but stopped when McNeally
brandished a gun and threatened to kill her if she did not do as she was told. In the
backseat, Ware raped and sodomized Doe and then forced her to orally copulate him.
        Ware pulled Doe out of the truck, where the sexual assault continued. At one
point, he grabbed Doe by the head and threw her to the ground, breaking her nose. Doe
was then pulled back into the vehicle, where she was force to orally copulate appellant,
while McNeally placed his hand in her vagina. After that, she was again forced out of
the truck. This time, the men took all of her belongings, including her clothes.
Appellant, Ware and McNeally finally drove off, leaving Doe naked by the side of the
road.
        Doe ran to various nearby residences and found someone who gave her a blanket
and called the police. Appellant, Ware and McNeally were arrested a few weeks later,
after Mungia and Doe identified them on video images from the Blue Macaw, and police
traced McNeally’s truck to him based on descriptions of its make and model. Doe’s
blood was found in the truck. DNA evidence from vulva swabs confirmed the presence
of Ware’s semen and the presence of non-semen traces from McNeally in Doe’s vagina.
By the time police found McNeally’s truck, weeks after the attack, he had ordered new
license plates and decals and painted the truck silver.
        B.       The Charges Against Appellant and His Co-Defendants, Appellant’s
                 Guilty Plea, and His Motion to Withdraw His Plea
        Appellant, Ware and McNeally were charged by information, as amended on June
1, 2011, with the following offenses: one count of kidnapping for sexual purposes in
violation of Penal Code section 209, subdivision (b)(1)2 (Count 1); one count of forcible
rape while acting in concert in violation of section 264.1 (Count 2); one count of oral
copulation in concert in violation of section 288a, subdivision (d) (Count 3); one count of

        2
            All subsequent statutory citations are to the Penal Code.


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rape by a foreign object while acting in concert in violation of sections 264.1 and 289
(Count 4)3; one count of forcible sodomy in concert in violation of section 286,
subdivision (d) (Count 5); and one count of assault with a semiautomatic firearm in
violation of section 245, subdivision (b) (Count 6).4
       After lengthy pre-trial proceedings, a joint trial was eventually set for all
defendants for January 28, 2014. Appellant unsuccessfully moved for a continuance of
the trial date, and this court denied a writ petition and a request for a stay of the trial on
January 27, 2014. Appellant then agreed to plead guilty to Counts 2, 3 and 5 and to
admit the charged sentencing enhancements under former section 12022.3, subdivision
(b) (on Count 2), former section 12022.8 (on Count 3), and former section 12022.3,
subdivision (b) (on Count 5). In exchange for this plea, the prosecution agreed to dismiss
all remaining charges and recommend a sentence of 31 years in prison if appellant


       3
        On December 14, 2011, the court granted appellant’s section 995 motion to
dismiss Count 4.
       4
         As to appellant, these charges were accompanied by the following sentencing
enhancement allegations: Count 1 (kidnapping for sexual purposes) alleged that
appellant was armed with a firearm, in violation of former section 12022, subdivision
(a)(1), and inflicted great bodily injury, in violation of former section 12022.7,
subdivision (a); Count 2 (forcible rape in concert) alleged that appellant was armed with a
firearm, in violation of former section 12022.3, subdivision (b), inflicted great bodily
injury, in violation of former section 12022.8, and that the circumstances specified in
section 667.61, subdivisions (a) through (e) (designating “one-strike” sex offenses
punishable by life in prison), rape and forcible oral copulation in concert with others, in
the course of a kidnapping, while armed, and having inflicted great bodily injury, were
true; Count 3 (forcible oral copulation in concert) alleged that appellant was armed with a
firearm, in violation of former 12022.3, subdivision (b), and inflicted great bodily injury,
in violation of former section 12022.8, and also alleged several one-strike sentencing
allegations under section 667.61; Count 4 (rape by a foreign object) carried enhancement
allegations identical to those charged with Count 3; Count 5 (forcible sodomy in concert)
carried enhancement allegations identical to those charged with Count 4; and Count 6
(assault with a semiautomatic firearm) carried sentencing enhancements allegations
identical to those charged with Count 5.


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provided truthful testimony on behalf of the prosecution in his co-defendants’ joint trial.
Absent the plea agreement, appellant would have been exposed to a total of 42 years in
prison on the charges to which he pled and a life sentence for conviction on all charges.
       On January 30, 2014, the court accepted appellant’s plea after advising him of the
constitutional rights he was relinquishing and after confirming a voluntary and knowing
waiver of those rights, on the record. (See Boykin v. Alabama (1969) 395 U.S. 238; In re
Tahl (1969) 1 Cal. 3d 122, 132.) An “Agreement to Provide Truthful Testimony”
executed by appellant and his counsel on February 20, 2014, memorializing the terms of
his agreement to testify for the prosecution, expressly provided that the terms of
appellant’s plea bargain were conditioned on “waiver of appellate rights.”
       Following his negotiated guilty plea, appellant moved three times to have his
appointed counsel replaced (see People v. Marsden (1970) 2 Cal.3d 118), reneged on his
agreement to testify for the prosecution, and filed a motion to withdraw his guilty plea
(see People v. Breslin (2012) 205 Cal.App.4th 1409). In support of his motion to
withdraw his plea, appellant argued that he had felt pressured by the prosecution when he
agreed to plead guilty, was not given adequate time to consider the prosecution’s
proposed terms, had come under familial pressure not to testify against his “blood
relatives,” and he did not realize he would be denied conjugal visits if he went to prison
for the crimes he admitted. The court denied each of appellant’s Marsden motions after
confidential in camera hearings.5 It also denied appellant’s motion to withdraw his guilty
plea, finding that he had not established cause for the withdrawal. On April 18, 2014, the
court sentenced appellant to a state prison term totaling 42 years. And on June 6, 2014,
the court denied a motion to reconsider the sentence pursuant to section 1170,
subdivision (d), entered judgment imposing the sentence, and dismissed the remaining
charges on motion by the prosecution.


       5
           We have reviewed the confidential transcripts of those proceedings.

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       Appellant, through counsel, timely filed a notice of appeal, accompanied by a
request for probable cause to appeal pursuant to section 1237.5. (See People v. Maultsby
(2012) 53 Cal.4th 296, 298.) On July 15, 2014, the court denied appellant’s request for a
section 1237.5 certificate of probable cause, indicating “Defendant waived his appellate
rights when he accepted PC 1192.5 disposition dismissing life-top counts.” Appellant’s
counsel filed an amended notice of appeal on July 29, 2014, attaching her declaration
stating: “Based on my personal recollection and the notes in my file, the defendant did
not waive his appellate rights,” and “The June 6, 2014 docket and minute order . . .
erroneously indicates that the defendant waived his appellate rights.”
       Appellant, without assistance of his counsel, filed an additional notice of appeal on
July 23, 2014, which included a handwritten portion stating in part: “I raised issues on
ineffective counseling. after realizing I was in a potential conflict of interest on 2/6/14.
After co-counsels revealed conflicts issues towards my counsel. Counsel moved to same
office as my co-defendant prior counsel still in which is Alternate defender counsel was a
public defender before she came to Alternat defender office. Which was 12-15-13 Jan
29-14 counsel pressured me to give a statement telling me I would receive a lesser
sentence then the current 31 years which was part of a package plea bargain. I agree to
those terms. 1/30/14 I enter a plea base on that understanding. 2-6-14 . . . Counsel which
Betty Barker stated to me that I would not be receiving a lesser sentence then the 31 yr.
Base on the fact that co-counsel raise a conflict of interest . . . Her exact words was
“Because of politics”! After that I went through Several Marsden motion raising all the
error Betty Barker caused. Those dates are (12-10-14) (2-28-14) (3-21-14) and in
between those Dates I underwent Betty’s tactical persuasion that effected my Better
Judgment.” (Sic.) In addition, appellant claimed that he was “given permission” to
withdraw his pleas by the judge who heard one of his Marsden motions, but that a
different judge, the judge who heard his motion to withdraw his plea, denied the motion
nonetheless.

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                       III. DISCUSSION AND DISPOSITION
       Upon our independent review of the record, we find no issues that warrant further
briefing. We have specifically examined the record as it bears on appellant’s negotiated
plea, agreement to testify for the prosecution, change of mind about testifying, and the
motions he made after entering his guilty plea, including his Marsden motions. We find
no error in the trial court’s denial of appellant’s Marsden motions, his motion to
withdraw his guilty plea, his motion for reconsideration of his sentence, or his motion for
a certificate of probable cause. The judgment and the sentence are affirmed.




                                                 _________________________
                                                 Streeter, J.


We concur:


_________________________
Reardon, Acting P.J.


_________________________
Rivera, J.




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