Opinion
A147913
03-29-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMELIAH BATES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC082640)
Jameliah Bates contends the court erred and abused its discretion when it denied her motion to withdraw her no contest plea to one count of committing a lewd or lascivious act on a child of 14 or 15 years old and at least 10 years younger than her. (Pen. Code § 288, subd. (c).) Bates asserts she demonstrated her plea was based on duress and a mistaken understanding of its consequences, and that her attorney was ineffective in failing to investigate and declare a doubt as to her competency. We affirm.
Further statutory citations are to the Penal Code.
BACKGROUND
I. Charges and Plea
The following facts are taken from the probation officer's report. The reverend of a local church received a call from a parishioner who said that Bates, a church volunteer, had sexually assaulted his 13-year-old son. The minor told the reverend that Bates kissed and had sexual intercourse with him during a youth retreat and subsequently sent him sexually suggestive text messages and naked photographs of herself. Bates befriended the boy's family and stayed at their home numerous times. Each time she would ask him to go to the garage or her car to kiss, and on one occasion they engaged in oral sex and intercourse in the garage. Bates told the minor not to tell anyone, but his sister overheard him confide in a cousin and informed their parents, who called the church.
The boy told police that Bates sent him numerous text messages and pictures, but said he had deleted them at her request. He said the phone he initially used broke and was turned over to the insurance company so it could be replaced. He and his parents gave police consent to search his new phone. The boy later repeated his description of events in an interview at the Keller Center.
Bates's phone records indicated she sent the boy 17 text messages and two photographs. One of the photographs was a "selfie" she had taken wearing only a short jacket with a fur lined collar. She was leaning over and a portion of her breasts was visible.
Bates was charged in an information with five counts of committing a lewd or lascivious act on a child under 14 (§ 288, subd. (a)), five counts of committing a lewd or lascivious act on a child of 14 by a defendant at least 10 years older than the child (§ 288, subd (c)(1)), exhibiting harmful matter to a minor (§ 288.2, subd. (a)), and contacting a minor with the intent to commit a sexual offense (§ 288.3, subd. (a)).
On July 22, 2015, the first day of trial, Bates signed a change of plea form and entered a plea of no contest to one count of violating section 288, subdivision (c)(1). Pursuant to a negotiated disposition, the remaining 11 counts would be dismissed, Bates would serve 50 rather than 85 percent time, and the conviction would not be considered a strike.
The court asked Bates if she had read, understood and signed the waiver of rights form for her change of plea and understood she would be giving up certain constitutional rights by pleading no contest. She responded that she did. The court then reviewed each of the rights Bates would waive pursuant to the plea and invited her to ask questions if she did not understand. Asked whether Bates understood that a plea of no contest has the same legal effect as a guilty plea, Bates responded "Yes." The court explained the maximum penalty for the offense was three years in prison, four years of parole, genetic marker testing, registration as a sex offender for life and substantial fines and fees. Bates again said she understood. When the court asked Bates if anyone had made promises to get her to plead or threatened her or her family or close friends, Bates replied "No, your honor." The court found that Bates had entered a free, knowing and intelligent waiver of her constitutional and statutory rights and found a sufficient factual basis for the plea based on the preliminary examination transcript. The court accepted the no contest plea, found Bates guilty of count six and granted the prosecutor's motion to dismiss all other counts and special allegations.
II. Motion to Withdraw Plea
Bates later moved to withdraw her plea on the grounds that she was under duress because she was told her case would no longer have an assigned investigator; she mistakenly believed she would have 60 days to fight her case after entering her plea; she was not competent when she changed her plea; and her attorney's failure to investigate and declare a doubt as to her competency constituted ineffective assistance of counsel.
The defense called three witnesses: Michael Armstrong, Bates's defense attorney through her plea; Michael Hartmann, the investigator assigned to her case until shortly before her plea; and Bates.
A. Armstrong
Armstrong testified he had been an attorney for 36 years, practiced criminal law almost exclusively since 1982 and was a criminal law specialist as designated by the State Bar Board of Legal Specialization. He visited Bates in jail at least 10 to 12 times between December 2014 and July 22, 2015. They discussed the evidence and the risks in going to trial. Bates was "very vocal and contributory to the defense efforts in terms of investigation and witness lists and character witnesses and all kinds of things like that. She wrote, from the very beginning of my representation, she wrote voluminously to me about things she wanted to have done or things she was thinking or feeling or things she remembered. So she was forceful in putting forth her viewpoint." She maintained her claim of innocence throughout Armstrong's representation.
Bates was housed in jail administrative segregation. For many months she was dressed in a Ferguson gown, used when an inmate is perceived to be at risk for suicide, but nothing she ever said led Armstrong to believe she was suicidal. Armstrong was aware that for brief periods during her incarceration Bates had been transported to the main jail for mental health issues. In late June or early July, Armstrong received feedback on her competency from a psychologist he had retained to assess her for potential Stoll testimony.
People v. Stoll (1989) 49 Cal.3d 1136. --------
The most disturbed Armstrong ever saw Bates was during the first part of July, when she "was getting stressed out, appropriately, because the trial was coming up." Defense investigator Hartmann commented that Bates appeared emotionally unstable around that time. Then, in early July, Bates twice refused to let Armstrong visit her. After she declined the second visit, on July 7, he became concerned. "And where the second time that she did that we were like six days before the trial date. . . . [¶] I don't know if I communicated that to anyone other than Mr. Hartmann, but I did communicate my thought about possibly declaring a doubt, based on the fact that she wouldn't meet with me and I—that makes it difficult for an attorney to continue to represent somebody effectively when their client won't talk to them. And I did have doubts about that." But, shortly after that Bates met with Armstrong and she seemed fine. Although Bates was at times very emotional, their subsequent visits convinced Armstrong there was no reason to question her competency.
Sometime between July 16 and July 22 Armstrong learned that the Private Defender Program would not allow investigator Hartmann to assist the defense during the trial. Armstrong did not feel Hartmann's absence at trial would make a big difference because, while Hartmann "was wonderful and spent hours and hours and hours" on the case, "his value at trial would not have been so much running out and interviewing people or talking to people during the trial as the evidence developed, as it was trying to sort of work with Ms. Bates so that she was sort of as cool, calm and collected as one could possibly be in those circumstances." Moreover, the defense still had the investigator originally assigned to the case, Greg Oglesby, who was a seasoned and highly regarded investigator. The only downside was that "the one she liked better could no longer sit."
Bates was "very disappointed" and distressed when she learned Hartmann would no longer be on her case. But Armstrong did not tell her they would no longer have an investigator, because Oglesby was available.
On July 22, 2015, the first day of trial, the prosecutor offered Bates a plea agreement. Over the course of the day the offer changed two or three times in Bates's favor. Armstrong went over the terms and consequences of each offer with Bates to make sure she understood everything. Bates never said she did not understand the terms of an offer or the effects of a plea.
The final offer, which Bates accepted, proposed that she plead to one felony violation of section 288, subdivision (c), with a maximum three-year sentence and sex offender registration. Bates had about an hour and thirty or forty minutes to consider whether to accept. At her request, Armstrong called three of her friends or relatives to solicit their views. He had no recollection of telling Bates she had three minutes to decide. Armstrong believed Bates's waiver was knowing and intelligent.
Armstrong remembered discussing two different 60-day time periods with Bates, one relating to her right to a speedy trial and the other to the time limit for filing an appeal. They did not discuss any 60-day periods in connection with the plea.
B. Hartmann
Hartmann succeeded Greg Oglesby as the investigator on Bates's case in January 2015. Bates worked well with Hartmann. She was very involved in and knowledgeable about her case, but her behavior was frequently odd. She was highly emotional at times, she cried uncontrollably, her thoughts jumped from one matter to another, and on multiple occasions she did not make any sense. She became hysterical at least twice and was seen for emergency mental health evaluations around three times. In July 2015 Armstrong told Hartmann he was considering declaring a doubt about Bates's competency, but he never did.
Hartmann considered Oglesby to be a well-regarded investigator and he had no issues with turning the investigation over to him. He had not previously worked with Armstrong but "checked him out and his credentials are impeccable."
C. Bates
Bates testified that Armstrong told her around July 20, 2015, that Hartmann was no longer on the defense team. She felt like she "couldn't breathe," and "started freaking out." Bates felt the success of her defense depended on having Hartmann assigned to her case and that "going forward without [him] would be putting myself at an unfair disadvantage." She initially thought both Hartmann and Oglesby were off the case, so she would not have an investigator at trial. If Hartmann were still on her case she would have proceeded to trial. Her attorney was "very kind, but truthfully was not prepared in the least bit for my case."
When he presented her with the plea offer, Armstrong told Bates she had three minutes to make a decision. When she entered her no contest plea she did not understand that it was the same as admitting guilt. Had she known that she would have declined the offer. She took the offer because she thought it meant she would be released and would have 60 days to fight her case.
Bates was shown a copy of her change of plea form on cross-examination. She testified she never had the opportunity to review it and "never even picked it up off the table." She remembered being advised of the rights she would give up by entering the plea, but remembered very little as to the judge's specific questions. She testified, "What I recall is being rushed to make a plea and not having any time to really sit and think of it. And then coming into a courtroom with my lawyer sitting down and the bailiff escorting me here. And then my attorney saying, okay, this is the paper. And then telling me to sign. And then the judge came in. I remember being rushed." Bates remembered being advised her no contest plea would be considered a guilty plea and responding that she understood, but she testified that "then I looked at Armstrong with that. And I—we were basically, like, we would discuss it when he came to see me."
D. Ruling
The court denied Bates's motion to withdraw her plea. It rejected her ineffective assistance of counsel claim, explaining, "The only reason why Mr. Armstrong was thinking about declaring a doubt in the testimony was because . . . he felt that when [Bates] refused to meet him he thought something was up and that that might have been a basis. But he was also aware that she'd been dressed in a Ferguson gown. And at the time she entered into her plea, and the days preceding, she was able to articulate her thoughts, her defenses, her feeling that she wanted to fight the charges, that she was innocent. And all of these weigh against a finding that at the time she entered into the plea she was not competent to proceed. [¶] And, in fact, I think Ms. Bates is a very intelligent woman. She's very articulate. She wanted to fight her case; that doesn't mean that you are incompetent, it means you want to fight your case."
The court also found Bates's duress and mistake arguments unpersuasive. "[L]istening to Ms. Bates, I'm struck, again, by the fact that she's very articulate. She doesn't remember a lot, but remember, she's been in isolation for a good part of almost a year now, and I'm sure that's affected her ability to talk and articulate her thoughts. [¶] But she makes sense. She wanted to deny the claim. She wanted to fight to clear her name. But when faced with the trial, and we were picking a jury, a jury was coming in at two o'clock, I had called 70 jurors, the existing crimes against the Defendant, as we all know, included six counts of 288 and beyond; had she been convicted of that, and I'm not saying the jury would have convicted her, she could have spent the rest of her life in prison. [¶] That's just the consequence. She would have had several strike offenses against her. And I believe that in weighing the options that she—this young woman made a calculated decision to plead no contest. She didn't plead guilty; she plead[ed] no contest. Because she was aware that the trial was going to happen and that this was her best option. And I think that shows not a mistake or duress, but a calculated, intelligent decision."
Bates was sentenced to the middle two-year term and released for time served. She filed this timely appeal.
DISCUSSION
I. Legal Standards
"Section 1018 provides, in part: '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. . . . This section shall be liberally construed to effect these objects and to promote justice.' The defendant has the burden to show, by clear and convincing evidence, that there is good cause for withdrawal of his or her guilty plea. [Citations.] 'A plea may not be withdrawn simply because the defendant has changed his [or her] mind.' [Citation.] The decision to grant or deny a motion to withdraw a guilty plea is left to the sound discretion of the trial court. [Citations.] 'A denial of the motion will not be disturbed on appeal absent a showing the court has abused its discretion.' [Citations.] 'Moreover, a reviewing court must adopt the trial court's factual findings if substantial evidence supports them.' " (People v. Breslin (2012) 205 Cal.App.4th 1409, 1415-1416.)
II. Duress and Mistake
"To establish good cause to withdraw a guilty plea, the defendant must show by clear and convincing evidence that he or she was operating under mistake, ignorance, or any other factor overcoming the exercise of his or her free judgment, including inadvertence, fraud, or duress. [Citation.] The defendant must also show prejudice in that he or she would not have accepted the plea bargain had it not been for the mistake." (People v. Breslin, supra, 205 Cal.App.4th at p. 1416.)
Bates attributes her decision to enter the plea to (1) duress stemming from Hartmann's removal from her case shortly before trial, and (2) her mistaken belief that if she accepted the plea offer she would have 60 days to fight her case after her release. She argues she "presented sufficient information and evidence" through declarations and testimony to support both points. But "the trial judge is the sole arbiter of all conflicts in the evidence, conflicting interpretations and conflicting inferences which reasonably may be drawn therefrom; is the sole judge of the credibility of the witnesses and may disbelieve them even though they are uncontradicted if there is any rational ground for doing so." (Davis v. Kahn (1970) 7 Cal.App.3d 868, 874.) Here the trial court credited Armstrong's version of events and disbelieved Bates's. Moreover, Armstrong's testimony about their pertinent discussions was corroborated by the change of plea form and hearing transcript, as well as Hartmann's and Armstrong's testimony that Oglesby would replace Hartmann on the defense team. On this record, the court reasonably found Bates's plea was not due to mistake or duress but rather to a "calculated, intelligent decision." That decision is supported by substantial evidence and within the court's sound discretion.
III. Ineffective Assistance of Counsel
Bates contends Armstrong's representation was constitutionally inadequate because he "failed to take the statutorily authorized steps to determine—prior to her plea—whether or not she might have been mentally incompetent while incarcerated awaiting trial and during the change of plea proceedings." Here too, we have no basis to disturb the trial court's contrary determination.
To establish constitutionally inadequate representation, Bates had to show that Armstrong's representation fell below prevailing professional norms and a reasonable probability she would secure a more favorable result but for the deficient representation. (Strickland v. Washington (1984) 466 U.S. 668, 687-696.) "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." (Id. at pp. 690-691.)
A defendant is incompetent to stand trial if, as a result of mental disorder, he or she "is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (§ 1367, subd. (a).) Armstrong and Hartmann testified that Bates contributed productively to her defense. Although Armstrong testified that Bates seemed upset and disturbed in early July, he considered this normal because the trial was approaching. His discussions of her mental state with the psychologist retained to explore a Stoll defense raised no red flags about her competency to stand trial. The only events that gave him concern were her two refusals to see him in the weeks preceding trial, but shortly after that she did meet with him and appeared to be fine.
Bates emphasizes the undisputed evidence of her emotional and at times odd behavior, particularly medical records from the jail and the fact that she was considered a suicide risk and evaluated for mental health issues several times during her incarceration. All of that is true, but none of it undermines the court's conclusion that Armstrong reasonably found no cause to further investigate or declare a doubt as to Bates's ability to understand the charges and participate in her defense. Accordingly, her claim of ineffective representation fails.
DISPOSITION
The judgment is affirmed.
/s/_________
Siggins, J.
We concur:
/s/_________
McGuiness, P.J.
/s/_________
Jenkins, J.