Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Douglas A. Fettel, Judge, Ct.No. FVA022606
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Michael T. Murphy, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
Defendant pled guilty to three counts of robbery. (Counts 2, 3, & 4—Pen. Code, § 211.) He also admitted the truth of the allegations that he committed each robbery while personally using a firearm (§ 12022.53, subd. (b)) and in association with a criminal street gang (§ 186.22, subd. (b)(1)). On appeal, defendant contends the court abused its discretion in denying his motion to withdraw the plea and that the taking of his plea violated his due process rights. The People assert that defendant waived his right to appeal this issue because he specifically initialed the provision on his plea agreement asserting his right to appeal was waived. If not waived, the People contend the court acted appropriately in denying his motion and that the taking of defendant’s plea comported with constitutional requirements. We conclude that a defendant cannot waive an appellate claim that his plea was not intelligently or voluntarily made. We further find that, as it relates to defendant’s mental incompetency, this argument has been forfeited because defendant failed to raise it below. Lastly, we conclude that the trial court was well within its discretion in denying defendant’s motion and that defendant’s due process rights were not violated.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
Defendant confessed to committing six armed robberies while personally armed and as a member of the Pimps Players Hustlers Gang. The evidence against him included surveillance videotapes from at least three of the robberies, fingerprints from one of them, and witnesses from each. The People charged defendant with six counts of robbery (counts 1-6—§ 211), with allegations that each was committed with the personal use of a firearm (§ 12022.53, subd. (b)) and in association with a criminal street gang (§ 186.22, subd. (b)(1)). As charged in the information, defendant faced a maximum potential sentence of 62 years.
Towards the end of September 2004, the People offered defendant a deal pursuant to which he would admit guilt as to counts 2, 3, and 4, as well as the corresponding enhancements. In return, the People would move for dismissal of the remaining counts and enhancements and agree to the midterm of count 2, with an aggregate term of imprisonment of 31 years 8 months. On December 15, 2004, defendant indicated he wished to contemplate the plea agreement for an additional two weeks. The People declined to extend the availability of the deal and conveyed that if the deal was not taken that day, they would be adding an additional 19 charges, potentially exposing defendant to 90 years’ imprisonment. The court recessed the matter until the afternoon calendar to permit defendant to further discuss the deal with his counsel and mother. That afternoon, defendant entered his plea.
Approximately a month thereafter, defendant communicated a desire to withdraw his plea. The court appointed conflict counsel who filed a motion to withdraw the plea on April 25, 2005. The sole basis for the motion was that defense counsel had failed to advise defendant that as a result of the plea, he would be incurring three strikes. The People filed opposition based exclusively on that issue. At some point, conflict counsel apparently began to have reservations regarding defendant’s mental competency to stand for further proceedings. Conflict counsel incurred difficulties in his attempts to access defendant’s psychological reports, resulting in numerous continuances and a rather lengthy delay. On October 6, 2005, conflict counsel first informed the court that he had a doubt as to defendant’s competency. The court ordered appointment of a doctor to evaluate defendant’s competency to stand for further proceedings.
Three doctors subsequently evaluated defendant. Dr. Richard Lettieri examined defendant first on November 1, 2005. He reported that defendant had witnessed his brother being shot 13 times approximately one year prior to his arrest in the instant matter. Though his brother survived, the experience drastically affected defendant’s life. Defendant began using drugs for the first time and was arrested in another matter. Dr. Lettieri diagnosed defendant with posttraumatic stress disorder, noting that defendant was in an “extremely low category of intellectual ability,” and did not understand even the basic concepts of courtroom procedure. Dr. Lettieri ultimately determined that defendant was not competent to stand trial at that time, and that prior to being on medication, his ability to make a decision regarding a plea bargain was “greatly impaired.”
Dr. Rob Zimmermann evaluated defendant on April 20, 2006. Defendant informed Dr. Zimmermann that he began using drugs daily at the age of 13, two years prior to the incident with his brother. Dr. Zimmermann also noted that defendant had lied to another psychologist regarding his use of drugs. Dr. Zimmermann conducted an extensive battery of tests, ultimately concluding defendant was competent to stand for further criminal proceedings. Dr. Zimmermann noted that defendant’s intellectual capabilities were tested as average at age 10, that he appeared to show understanding of his crimes and criminal procedure, that he showed no need for antipsychotic treatment, and that his current performance on testing appeared to underestimate his actual ability. Dr. Zimmermann also expressed skepticism towards the fact that a previous psychologist had only performed one test on defendant. He further noted that defendant’s treating psychologist had conveyed defendant’s intent “‘to withdraw his plea and try to obtain a better plea bargain or go to trial on the allegations.’”
Dr. Harvey Oshrin interviewed defendant on June 12, 2006. Dr. Oshrin noted from the beginning that he felt defendant was being untruthful: “It should be stated at the outset that this young man impressed me as a person playing dumb. His level of cooperation and reliability are open to grave question.” Defendant told Dr. Oshrin that he began using drugs at age 13 and had never been involved in a gang. Defendant informed Dr. Oshrin that he had been arrested three times and was on probation when arrested for the present crimes. Dr. Oshrin concluded that defendant was competent to stand for further proceedings and that “[i]f [he] has questions about the legal process, this is a matter of simple education and not any purported mental illness.”
On July 21, 2006, conflict counsel stipulated to the contents of Dr. Oshrin’s report; in particular, that defendant was competent to stand for further proceedings. The hearing on defendant’s motion to withdraw his plea took place on October 12, 2006. From the onset of the hearing, defense counsel indicated he was not pursuing the mental competency issue. While defendant testified that he had limited mental acuity and was on suicide watch at the jail prior to the taking of his plea, his primary basis for seeking to withdraw the plea was that his counsel had neglected to inform him that the counts he pled to were strikes. According to defendant, his counsel also informed him he could take his plea back any time he wanted. On cross-examination, defendant admitted that he had initialed the box on his plea form indicating that he was pleading to strikes; however, he testified he had not read the form himself. Defendant stated he would not have pled guilty had counsel informed him the plea involved strikes.
Defendant’s prior counsel testified that she had discussed the case with defendant and his parents, including all the evidence against him, any defenses, and the nature of the plea offer. She indicated she had spoken with defendant approximately seven times. She specifically remembered informing him that he would be pleading to strikes.
The court denied defendant’s motion, finding both that defendant had the mental capacity to understand what he was doing and that he had been informed that with the plea he was incurring strike convictions. The court sentenced defendant to the aggregate term of 31 years 8 months contained in his plea agreement.
II. DISCUSSION
A. Defendant Did Not Waive the Issue of His Competency to Enter the Plea for Purposes of This Appeal
The People claim that defendant waived his right to challenge on appeal his competency to enter the plea by initialing term 20 on his agreement which expressly waived his right to appeal. Term 20 reads, “I waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain.” Defendant counters that where a waiver was not knowingly and intelligently made, it cannot be enforceable. We agree with defendant that a defendant cannot waive the issue of competency to enter a plea by waiving his right to appeal as part of that plea agreement.
In People v. Vargas (1993) 13 Cal.App.4th 1653, 1659, we held that “an express waiver of the right of appeal made pursuant to a negotiated plea agreement is valid provided defendant’s waiver is knowing, intelligent and voluntary.” (Italics added.) “Just as a defendant may affirmatively waive constitutional rights to a jury trial, to confront and cross-examine witnesses, to the privilege against self-incrimination, and to counsel as a consequence of a negotiated plea agreement, so also may a defendant waive the right to appeal as part of the agreement. [Citations.]” (People v. Panizzon (1996) 13 Cal.4th 68, 80.) However, “[t]o be enforceable, a defendant's waiver of the right to appeal must be knowing, intelligent, and voluntary.” (Ibid., citing People v. Vargas, supra, at p. 1659.) “The burden is on the party claiming the existence of the waiver to prove it by evidence that does not leave the matter to speculation, and doubtful cases will be resolved against a waiver. [Citation.]” (People v. Vargas, supra, at p. 1662.) “The right of appeal should not be considered waived or abandoned except where the record clearly establishes it. [Citation.]” (Ibid.)
Here, by challenging his competency to enter the plea, defendant is arguing that his plea was not knowing, intelligent, and voluntary. Thus, a mentally incompetent defendant cannot waive his right to appeal because, a fortiori, any such waiver would not be free and voluntary. Moreover, we are not so sure that, to the extent defendant was competent to enter the plea, his waiver of his right to appeal was effective. As both the People and defendant note, defense counsel signed the plea agreement acknowledging concurrence in the plea, but specifically wrote in “Except Term # 20.” Furthermore, defendant requested and obtained a certificate of probable cause on the ground that “he was misinformed about the plea agreement.” The trial judge’s grant of and signature on the certificate of probable cause certifies that there are “reasonable constitutional, jurisdictional, or other grounds going to the legality of the [plea] proceedings.” (§ 1237.5, subd. (a).) Therefore, defendant did not waive his right to challenge on appeal his competency to enter the plea. Whether defendant forfeited the issue by failing to raise it below is another issue altogether.
B. Defendant Forfeited an Appellate Challenge to His Competency to Enter the Plea by Failing to Preserve the Issue Below
“Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal. [Citations.]” (In re Sheena K. (2007) 40 Cal.4th 875, 880.) “‘“[N]o procedural principle is more familiar to this [c]ourt than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.”’” (Id. at pp. 880-881, quoting United States v. Olano (1993) 507 U.S. 725, 731 [113 S.Ct. 1770, 123 L.Ed.2d 508].) “As the United States Supreme Court has clarified, the correct term is ‘forfeiture’ rather than ‘waiver,’ because the former term refers to a failure to object or to invoke a right, whereas the latter term conveys an express relinquishment of a right or privilege.” (In re Sheena K., supra, at p. 881, fn. 1.)
Here, defendant’s motion to withdraw his plea was predicated solely on the basis that his counsel failed to inform him that the plea involved the incurrence of three strike convictions. This was the only issue to which the People filed a written response. While sometime thereafter, conflict counsel became apprehensive of defendant’s mental competency to stand for further proceedings, he never indicated to the court that his suspicions extended to defendant’s mental competency when he entered the plea. Indeed, the court-ordered psychological evaluations appear to have been limited to the purpose of determining defendant’s competency to stand for further proceedings. All three psychologists listed the purpose of their evaluations as determining defendant’s competency to stand trial. None of them indicated the purpose of their interviews was to determine whether defendant was mentally competent to enter the plea. Only Dr. Lettieri expressed an opinion regarding defendant’s competency to enter the plea nearly 11 months earlier, but nothing indicates this opinion was invited or requested.
Moreover, prior to the hearing on the motion to withdraw the plea, defense counsel stipulated on June 21, 2006, to Dr. Oshrin’s conclusion in his report that criminal proceedings should be reinstated:
“THE COURT: All right, so that you are willing to submit that if Dr. Oshrin came to testify, he would testify in accordance with his report?
“[DEFENSE COUNSEL]: Yes, your Honor.
“THE COURT: And that he found [defendant] to be competent?
“[DEFENSE COUNSEL]: Yes.
“THE COURT: And he was the division or there was a two to one
“[DEFENSE COUNSEL]: Right.
“THE COURT: — for competency.
“[DEFENSE COUNSEL]: That is right.
“THE COURT: Then I will accept the stipulation. [¶] And you stipulate also to his qualifications?
“[DEFENSE COUNSEL]: Yes.
“[THE PEOPLE]: And the People also stipulate.
“THE COURT: And at this point in time, I will reinstate criminal proceedings.”
This stipulation in no way appears limited to the determination that defendant was competent to stand for further proceedings, but would also appear to extend to any claim that defendant was not mentally competent to enter his plea. Indeed, Dr. Oshrin’s report, as indicated above, began with the assertion that “this young man impressed me as a person playing dumb. His level of cooperation and reliability are open to grave question.” Dr. Oshrin made at least a couple of other references to defendant’s dissemblance in his evaluation. He also noted that defendant was concerned with having his plea bargain rescinded because he was not aware he would be incurring strike convictions. Thus, the rational inference from Dr. Oshrin’s report is that defendant’s mendacity regarding his mental status was a ploy to enable him to withdraw his plea.
Furthermore, immediately prior to the hearing on the motion to withdraw the plea on October 12, 2006, defense counsel clarified the nature of the delay and the focus of the current hearing: “I just wanted to make it clear for the record that the long delay in actually hearing this matter was due to the fact we’ve had [defendant] seen by at least three doctors, maybe four, during the interim. We were looking into any mental issues. We did have one report come back of a [section] 1368 evaluation finding [defendant] [in]competent. We’ve had at least two—I think three doctors after that evaluate [defendant], coming back with opposite conclusions. Therefore, that was not pursued, but it took a long time to do it and now we are at the stage that we are at.” (Italics added.) Thus, defense counsel was no longer pursuing the issue of defendant’s competency to continue with further criminal proceedings, let alone any issue that defendant was not competent when he entered his plea.
Finally, it does not appear that any evidence of defendant’s mental incompetence was offered at the hearing on the motion. Defendant offered no testimony from any of the psychologists who evaluated him. Defendant did not even move into evidence or even refer to any of the psychological evaluations other than at the beginning of the hearing to note they were no longer pursuing that issue. Indeed, the People contend defendant’s reliance on these reports is inappropriate because they were not used below. Defendant replies that the court stated that it had read the record; hence, indicating it acknowledged familiarity with the psychological evaluations. While the court did indicate that it had read the record, there is nothing to indicate the psychological evaluations were part of that record. In fact, the court all but suggests its only knowledge of the evaluations was defense counsel’s mention of them at the beginning of the hearing: “You have indicated to the [c]ourt that [defendant] had been seen several times by several doctors since the taking of the plea.” Thus, defense counsel forfeited any reliance on Dr. Lettieri’s determination that defendant was mentally incompetent at the time he entered the plea.
Nonetheless, defendant did educe limited testimony at the hearing that he had some mental issues. Defendant testified that his highest level of education completed was the eighth grade. He testified that when he was in school, both before and while in juvenile hall, he was enrolled in special education classes. Furthermore, he indicated that he was on suicide watch and was seeing a counselor around the time he entered his plea. In response, the People argued, “I don’t believe [defendant’s] ability or capacity to understand necessarily his mental maturity level, for lack of a better term, is really a question here. He stated on the stand if he thought they were strikes, he wouldn’t have taken the deal. So clearly he understands the implications of strikes, he understands what a strike means. It is not that he didn’t understand that he was pleading to strikes, he says he was never informed that they were actually strikes he was pleading to; knowing full well what that meant, he wouldn’t have taken the deal.” Likewise, the court reiterated that the true issue was whether defendant had been informed that his plea resulted in his incurrence of three strikes, not his mental capacity: “Having that knowledge—and [defendant’s] own statement is that it is not [a] matter of understanding, it is just he knew he was pleading to strikes . . . .” Nevertheless, in an abundance of caution, we will discuss below why defendant’s plea was entered voluntarily, even in consideration of all the evidence defendant contends reveals that it was not.
C. Defendant Entered His Plea Knowingly, Voluntarily, and Intelligently
Defendant contends the court abused its discretion in denying his motion to withdraw his plea because the evidence demonstrates that defendant was mentally incompetent at the time he entered the plea. He also asserts the taking of his plea violated his due process rights. We see little difference between the two arguments and will now address both.
“A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. [Citations.] ‘Section 1018 provides that . . . “On application of the defendant at any time before judgment . . . the court may, . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.” Good cause must be shown for such a withdrawal, based on clear and convincing evidence. [Citation.]’ [Citations.] ‘To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.] Other factors overcoming defendant’s free judgment include inadvertence, fraud or duress. [Citations.]’ [Citation.] ‘The burden is on the defendant to present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty.’ [Citation.]
“‘When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] On appeal, the trial court’s decision will be upheld unless there is a clear showing of abuse of discretion. [Citations.]’ [Citation.] ‘Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.’ [Citation.]” (People v. Weaver (2004) 118 Cal.App.4th 131, 145-146.)
“Abuse of discretion is established if, considering all of the circumstances before it, the trial court exceeded the bounds of reason. [Citation.] Of course, ‘[t]he scope of discretion always resides in the particular law being applied; action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an abuse of discretion.’” (People v. Parmar (2001) 86 Cal.App.4th 781, 792-793.)
Defendant contends that Dr. Lettieri’s evaluation, combined with the facts of defendant’s minimal education, attendance in special education classes, and status on suicide watch at the time, establish that he was not mentally competent when he entered his plea. However, Dr. Lettieri’s report nowhere asserts that defendant was incompetent to enter his plea: “It would seem to me that, prior to being on medication, his ability to reflect on the case, disclose pertinent facts surrounding the case, apprise himself of legal defenses, and make a decision regarding a plea bargain was greatly impaired. He said when he accepted the thirty-one year plea bargain, he was confused and frightened. He was experiencing Posttraumatic Stress Disorder, probably, at that time, in full syndrome.” (Italics added.) Thus, Dr. Lettieri never explicitly stated that defendant was not mentally competent when he entered the plea despite his unequivocal determination that defendant was currently incompetent to stand for further proceedings.
Moreover, the two other psychologists who evaluated defendant concluded that he was competent to proceed and suggested that he may have been faking incompetency all along. Dr. Zimmermann implied that, from the police reports, defendant appeared to have a sophisticated understanding of his crimes and the criminal process. He reported that defendant lied to another examining psychologist, possibly Dr. Lettieri, regarding when he had initially used drugs. Defendant told Dr. Zimmermann he began using drugs two years earlier than when he had told Dr. Lettieri. Dr. Zimmermann impliedly faulted an earlier psychologist for administering only one psychological test: the verbal subtests of an abbreviated IQ test. Dr. Lettieri had earlier conducted only the verbal subtests of an abbreviated IQ test. On the other hand, Dr. Zimmermann conducted a wide array of psychological tests. Dr. Zimmermann noted that defendant had previously informed a treating psychologist that he “‘intended to withdraw his plea and try to obtain a better plea bargain or go to trial on the allegations.’” An examination of defendant’s testing at the age of 10 revealed that he tested average, rather than significantly below average. Dr. Zimmermann concluded that defendant’s current “performance on standardized testing appears to be a slight underestimate of his actual intellectual potential given his adaptive skills.” Likewise, Dr. Zimmermann concluded that an “[a]bsence of psychotic symptomatology suggests against the need for antipsychotic treatments.” Ultimately, Dr. Zimmermann determined that defendant was competent to stand trial. It is clear from the nature of the report that Dr. Zimmermann also believed that defendant’s “mental” issues were somewhat feigned.
Dr. Oshrin stated “at the outset that this young man impressed me as a person playing dumb. His level of cooperation and reliability are open to grave question.” He repeatedly questioned defendant’s veracity. Defendant denied gang involvement to Dr. Oshrin, despite having previously admitted it to others. Dr. Oshrin concluded that defendant was competent to stand trial.
Two out of three psychological reports indicated that defendant was currently competent to stand trial. Two of the reports suggested that defendant was faking incompetency. Moreover, the latter two evaluations were more thorough than Dr. Lettieri’s. Therefore, the court was well within its discretion in discounting Dr. Lettieri’s determination regarding defendant’s mental status when he entered the plea.
Nonetheless, defendant notes that Dr. Lettieri reported that defendant had been on psychiatric medication for two weeks when he was evaluated. Dr. Lettieri indicated this had improved his mental status to some degree, though not enough to render him competent to stand for further proceedings. However, Dr. Lettieri prognosticated that several months of such pharmacological treatment, along with counseling, would likely render defendant competent to stand for further proceedings. Thus, defendant contends that the subsequent evaluations by Drs. Zimmermann and Oshrin were skewed by the fact that he had had the very treatment prescribed by Dr. Lettieri, i.e., defendant appeared competent then only because he had received such treatment, just as Dr. Lettieri predicted. This, of course, completely ignores that both doctors believed defendant was still feigning incompetency. Moreover, it disregards the fact that none of the doctors were requested to render an opinion regarding defendant’s mental competence at the time he entered the plea. Had they been so requested, they may very well have conducted a different series of tests and examinations directed at determining the prior status of defendant’s competency, rather than that of his current condition.
Furthermore, the trial judge, who was in a much better position than we to judge defendant’s competence by virtue of his demeanor and appearance at the taking of the plea, explicitly determined that defendant understood the effect and consequences of his plea. The court noted that defendant had had several months to discuss the plea deal with his attorney and parents. She asked if defendant understood the plea deal; defendant replied that he did. Nonetheless, the court went over all the details of the plea agreement with defendant. She then recessed the matter so that defendant could further discuss the deal with his counsel and his mother. The court went over the plea form with defendant, ensuring that he had read the form, discussed it with counsel and understood all his rights. The defendant answered these inquiries in the affirmative. Ultimately, the judge found that defendant “has read and understands his declaration pursuant to his change of plea, that he understands the nature of the crimes charged against him, and the consequences of his guilty plea and his admissions. [¶] That he understandingly and intelligently waives his [c]onstitutional rights. That he has personally, orally, and voluntarily entered his guilty plea and his admissions.”
Finally, after indicating he reviewed all the appropriate documentation, the judge presiding over the hearing on defendant’s motion to withdraw the plea determined that defendant’s plea was intelligent and volitional: “I don’t see anything on the face of the taking of the plea, the filling out of the paperwork, or anything in the record that leads me to believe that [defendant] was suffering from any kind of a condition at the time that he entered this change of plea that would have overcome his ability to make decisions about his future and about this plea.” The court reiterated: “You have indicated to the [c]ourt that he had been seen several times by several doctors since the taking of the plea. And some of those had been for mental state issues, as well. But at this point in time, it appears to me that those were not issues that were really present at the time of the taking of the plea. Even if he entered [j]uvenile [h]all on suicide watch, I don’t know if he was still on suicide watch when he came to court and when he changed his mind and decided to accept the offer from the [d]istrict [a]ttorney. [¶] So in reviewing all of the evidence that I have, and the testimony that I have listened to, I do not see any clear and convincing evidence of coercion or confusion on behalf of [defendant] that would allow this court to grant his motion to withdraw his plea and I am going to deny that motion at this time.” The court’s ruling is abundantly supported by the evidence and well within its discretion.
Defendant similarly contends that his due process rights were violated because his plea was not voluntary and knowing. In Boykin v. Alabama (1969) 395 U.S. 238 [89 S.Ct. 1709, 23 L.Ed.2d 274], our Supreme Court held that when a defendant enters a plea of guilty, he is concurrently waiving a number of constitutionally guaranteed rights. (Id. at p. 243.) Thus, in order to comport with constitutionally required due process, the judge taking such a plea must ensure that the plea is voluntary and knowing and that the record adequately establishes such. (Id. at pp. 243-244.) For the same reasons discussed above, we believe that the record adequately establishes that defendant knowingly and voluntarily waived his constitutional rights in entering his plea.
III. DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst, Acting P.J., Richli, J.