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               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                           B249956

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA094004)
         v.

JAMILLE JAVADO EWERS,

         Defendant and Appellant.



         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.


                                  ________________________________
                                 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
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(Pen. Code, § 459). 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.*
________________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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