Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. HEF004024. Robert J. McIntyre, Judge. Affirmed with directions.
Defendant filed a petition for writ of habeas corpus (case No. E046926), which we ordered considered with this appeal. We will resolve that petition by separate order.
John L. Staley, 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, Assistant Attorney General, James D. Dutton, Scott C. Taylor, and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ, P.J.
Defendant, Steven Crosby, pled guilty to transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and having suffered five prior drug convictions (Health & Saf. Code, § 11370.2, subd. (c)), and possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)). He further admitted having suffered four convictions for which he served prison terms. (Pen. Code, § 667.5, subd. (b).) He was sentenced to prison for 23 years and appeals, claiming his plea was not voluntary. We reject his contention and affirm the conviction, while directing the trial court to correct an error in the abstract of judgment.
Factual and Procedural Background
In March 2001, defendant was charged by information with transporting methamphetamine. (Health & Saf. Code, § 11379, subd. (a).) It was further alleged that defendant had suffered five prior drug convictions (Health & Saf. Code, § 11370.2, subd. (c)) and four prior convictions for which he served prison terms (Pen. Code, § 667.5, subd. (b)). On April 3, 2002, the prosecutor amended the information by adding a second count, charging possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) Defendant agreed to plead guilty to simple possession and be granted probation with local time in exchange for assisting law enforcement and testifying truthfully in any criminal proceeding against two named individuals in a case in which they had been charged with attempted murder and torture. Sentencing was continued and defendant remained in custody in the county jail.
While his case was pending, defendant contacted authorities and claimed to have overheard conversations between these two men in county jail, where they were awaiting trial.
On November 27, 2002, the court ordered the “sheriff to allow defendant [to] receive appropriate dental care including outside... treatment if necessary.” The court further ordered the jail to provide it with a written report concerning defendant’s course of treatment within 10 days. On December 9th, defendant informed the court that he had not received the dental care it had ordered. Defense counsel told the court that “the nurse or the dentist person kind [o]f reviewed your order and indicated to [defendant] that she wasn’t going to allow you to run her office.” The court ordered the jail dental staff to appear and show cause why it should not be held in contempt for failing to abide by the court’s order. Two days before the show cause hearing was to take place, the medical director of the jail told the court that the dental facility in the jail was not set up to do crowns, which is what defendant needed in order to avoid extraction. The court concluded that the only reasonable solution was to have defendant transported to his own dentist and have the work done. The court placed the show cause hearing off calendar. It set a hearing on the motion concerning defendant’s dental care for December 16th.
The court stated, “... [Defendant] is faced with extensive dental work that needs to be done. And apparently the jail does not have the ability to conduct that short of extraction of the teeth. [¶]... [I]n the court’s mind, with extraction as the only alternative, if that is the case, is wrong.” Defendant responded, “I wish I would have mentioned it sooner. It would have saved two more teeth.”
According to defendant, whoever took care of him at the dental infirmary in the jail told him he could have only one fourth of his mouth treated at a time, then would have to wait a month each for the other three quarters. He said his understanding of the court’s order was that he was to have a “full checkup.” He also said this person offered to pull his tooth, but would not “fix” it.
On December 16th, the court ordered defendant to be transported to a named dentist in Hemet on January 2, 2003, and it set a status hearing for January 6th. However, on December 31st, another judge vacated this order and set a hearing for January 2, 2003, apparently because it was anticipated that the court would have to pay defendant’s dental expenses and it did not have the funds to do so. On January 2, defendant was not present in court, but counsel and a third judge discussed transportation for defendant’s dental treatment.
On January 6, 2003, the judge who had ordered that defendant receive dental treatment noted that defendant had not yet received it because the second judge had revoked its order. The prosecution told the court that defendant was in “intense pain” and it had been agreed that defendant would withdraw his previous guilty plea to simple possession and plead guilty to all the charges and enhancements and would be released on his own recognizance under what it called a Cruz waiver. The conditions of that waiver were, inter alia, that defendant obey all laws and that he cooperate with law enforcement and testify truthfully in any criminal case brought against the two named individuals and in the case against them for attempted murder and torture. Defendant agreed that if he failed to fulfill any of the terms of the agreement, “he will be sentenced to the maximum term of imprisonment... [which] [¶]... [¶] is 23 years.” Upon completion of his trial testimony, defendant would have an opportunity to withdraw his plea, plead guilty to simple possession and be granted probation, with local time. Defense counsel said he was in agreement with this disposition. Defendant and his attorney stated that they wanted to withdraw the previous guilty plea to simple possession and the court granted the motion to withdraw. Defendant told the court that he understood the disposition and it was acceptable to him. Defendant said he understood that if he failed to appear for sentencing or failed to comply with any of the terms of his release, he would be sentenced to 23 years in prison. Defendant acknowledged and waived each of his Boykin/Tahl rights and said he understood the maximum terms that could be imposed for each of the counts and the enhancements and the fines and other consequences of his pleas and admissions. Defendant said he had had enough time to discuss the case with his lawyer, that he had told his lawyer everything he knew about the case and his lawyer had explained to him his rights and the consequences of his plea. When the court asked defendant whether he was pleading guilty freely and voluntarily, defendant said, “Absolutely.” Defense counsel said he was satisfied that defendant’s plea was free and voluntary. Defendant then pled guilty to both offenses and admitted all the enhancements. Defendant signed an OR Release Agreement, the original change of plea form, which he had already signed in April 2002 and a written agreement which provided, inter alia, that if defendant failed to testify truthfully against the two named individuals in any criminal proceeding against them and to cooperate with law enforcement and testify truthfully in the case charging the latter with attempted murder and torture, at the prosecutor’s discretion, his guilty pleas would stand and he would be sentenced within the full range of potential penalties. The court noted that “the jail... could only provide for extraction of the defendant’s teeth rather than treatment that would be appropriate that would preserve the teeth. And the defendant stands ready with his private dental service involving a doctor who believes that the teeth can be preserved. And he also is in extraordinary pain because of the lack of rapid treatment of all his dental problems.”
People v. Cruz (1988) 44 Cal.3d. 1247.
At that point, defendant had already spent 22 months in county jail, for which he would have been credited, therefore, he would have been released without serving further time.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d. 122.
During this time, the court reiterated that if defendant failed to appear for sentencing or failed to comply with the terms of his release, he could be committed to prison for 23 years.
The OR Release Agreement provided that if defendant failed to appear on January 27, 2003 or any time ordered by the court, he may be charged with a felony violation of Penal Code section 1320, subdivision (b).
Because defendant and/or his mother had been threatened by skinhead gang members, possibly tied to the two men defendant was expected to testify against, he was, thereafter, placed in the witness protection program by the prosecutor’s office and moved to Arizona, where the office paid defendant’s rent and utilities and gave him money on which to live. In late May or early June 2003, defendant testified against one of the men named in his plea agreement, in a case involving that man slashing a fellow inmate in jail. The man was convicted of assault with a deadly weapon and mayhem. Defendant was then arrested in Arizona and, in November 2004, pled guilty to methamphetamine possession, receiving a two-and-a-half-year sentence. The officer to whom defendant was to report weekly under the terms of his bargain later testified at the sentencing hearing that defendant had, upon his arrest, left the apartment the district attorney’s office had provided him in such a state that the office had to spend $2,300 to have it repaired. Additionally, $4,700 cash was found in the apartment. The attempted murder and torture trial for which defendant was to provide testimony occurred in August 2005, while defendant was in prison in Arizona. Defendant did not testify at the trial, and the officer to whom defendant was supposed to be reporting weekly testified later that he did not know where in the Arizona prison system defendant was located at that time.
According to defendant, he was also a paid informant for the Arizona city in which he was living, making $1,000, and for the DEA. He claimed he had been paid “thousands of dollars” for his testimony in the slashing case described in the text of footnotes 11 and 12, post.
Defendant had witnessed the attack.
However, by February 2007, with sentencing to prison for 23 years in this case looming over his head, defendant recanted his testimony in that case.
Defendant admitted he began using drugs again while living in Arizona and was incarcerated for it.
Meanwhile, back in California, in September 2004, defendant’s OR release was revoked due to his arrest in Arizona and a bench warrant for his arrest was issued. In July 2006, a month before he was released from prison in Arizona, defendant contacted the Riverside court and asked, in his absence, to have his arrest warrant quashed and/or the case against him dismissed and/or to be sentenced to a term concurrent with his Arizona sentence and/or to be tried within 90 days.
In August 2006, defendant completed his prison sentence in Arizona and in December he was, once again, back in custody and before the court in Riverside. In April 2007, a hearing was scheduled for a motion to withdraw defendant’s plea. When the hearing took place in May 2007, defense counsel told the court there were no grounds upon which to bring such a motion and one would not be filed. The court took the motion off calendar. Three weeks later, defendant replaced his court appointed attorney with the attorney who had represented him when he entered into the plea bargain, except, this time, counsel was retained.
In his sentencing memo, in which he urged the court to impose a sentence of less than 23 years, defendant stated that after he was released from custody in Arizona, he was arrested in Nevada. The memo, authored by the attorney who had represented defendant in both April 2002 and January 2003, said absolutely nothing about defendant being in so much pain during these times that he was incapable of understanding what he was doing. At the sentencing hearing, counsel again said nothing about this topic.
At the sentencing hearing on March 24, 2008, defendant stated that after he testified in the slashing case, “the tooth issue came up.” He went on to say to the court, “I was in so much pain at the time I signed that plea agreement, I didn’t even know what I signed. All I know is when I signed that plea agreement,... you ordered them to transport me to the dentist. They refused to do it. I was in this dental limbo of pain and suffering. All I knew was if I signed this [plea agreement], I was gonna go to the dentist, to be able to go home and go to the dentist. [¶] I didn’t hear what... was said. All I know is I had to testify in a... case [involving one of the men charged with attempted murder and torture] to fulfill my obligation.... [¶] The point is, they leapfrogged the cases on me. I got out because of the dental issues.... [T]he whole time I was under the impression, was told, either case [against the man charged with attempted murder and torture] I testified in [was sufficient]....” “I was told several times either case I testified in, they would release me and my obligation would be fulfilled.” Later, he asserted, “I was under duress when I signed the thing” and “I didn’t know what I was signing at the time I signed it,” without specifying whether this was in April 2002 or in January 2003. Thus, defendant, while asserting that he was in a “dental limbo of pain and suffering” at the time he agreed to the second plea bargain in January 2003, did not unequivocally assert that he was in so much pain at that time that he did not know what he was doing. Rather, he asserted that he was so eager to get the dental care he wanted (versus the care the county was willing to give him) that he agreed to the bargain and did not pay attention to his obligation to testify in the attempted murder and torture case, but felt his testimony in the slashing case was sufficient.
The judge who sentenced defendant was the same judge who had accepted his initial plea and his second plea and who, between the two, had ordered dental treatment for defendant.
By this, he meant that the slashing case came to trial first and the attempted murder/torture case was tried second.
Defendant went on at length to describe efforts he had made to aid law enforcement in other ways while in Arizona.
He did not specify on what occasion. (See text following fn. 6, ante, p. 5.)
The trial court found that defendant’s arrest, conviction and incarceration in Arizona “violated an integral part of the original and the subsequent plea agreements” and sentenced him to 23 years.
Issues and Discussion
Defendant contends that the trial court erred in accepting his plea in January 2004 because “he had been in pain for nearly two months because of an untreated dental condition.” However, there is no support in the record for such an assertion. Moreover, pain is relative—some people have a very high threshold, others do not. Additionally, the record does not suggest whether defendant was on medication for whatever pain he was experiencing on January 6, 2003 and whether, despite the medication, the pain was so great it prevented him from knowing what he was doing. What the record does disclose, however, is that the trial court, which was particularly solicitous of defendant and sensitive to his dental needs, the prosecutor and defendant’s own attorney believed at the time, and years later, at the sentencing, that defendant was of sufficiently sound mind to agree to the bargain.
At the sentencing hearing, the prosecutor, who had been the prosecutor on January 6, 2003, said, “I know this Court would not take a revised plea without understanding and believing that the defendant was fully capable of joining that agreement at the time of the agreement. That he was mentally capable at the time to understand what he was doing and... willfully and voluntarily going forward on it. I know that. I was there. I remember the occasion. [Defendant] was quite lucid.”
Defendant goes on to assert that he “entered into the amended plea agreement because it was the only way he could receive dental treatment.” Defendant again overstates the facts. The January 2003 plea agreement was the only way defendant could get the dental treatment that he wanted. There is a significant difference. He did not want the treatment the county was offering, which was extraction. He wanted an attempt to be made to save his teeth by having crowns installed. Notably, he had lost two teeth previously to extraction for apparently the same condition, so this was nothing new for defendant.
See footnote 3, ante, page 3.
Thus, under the totality of circumstances, we cannot agree with defendant that his January 2003 plea was not voluntary and intelligent. (See People v. Howard (1992) 1 Cal.4th 1132, 1175) It is notable that defendant entered the bargain in January 2003 and it was not until after he got caught breaking its terms, more than four years later, in May 2007, that he first began rattling his saber about withdrawing his plea, and, even then, his attorney reported that there were no grounds upon which to do so. Then, it was not until the specter of a 23-year prison term was looming over his head at sentencing, more than five years after January 2003, that defendant, for the first time, made an equivocal assertion that he was in so much pain then that he did not know what he was doing. For “an intelligent and articulate person,” so versed and sophisticated in the criminal justice system, that’s a remarkably long delay.
Defendant also asserts that the trial court retained discretion at sentencing to withdraw its acceptance of the plea bargain and its failure to do so constituted an abuse of discretion. However, defendant had already received the benefit of his bargain. Unlike the situation discussed in defendant’s opening brief, he did not just fail to appear for sentencing. He violated the terms of his bargain, while enjoying its benefits. Under the circumstances, we cannot agree with defendant that the court abused its discretion in not allowing defendant to escape the consequences of his actions.
Defendant claims that the bargain was not in the best interests of society. He asserts that he gave evidence that resulted in a life sentence in the slashing case. However, he ignores the fact that he retracted that testimony, causing, perhaps, irreparable harm to the conviction. Moreover, this court takes judicial notice of the fact that the defendant in the slashing case was convicted in the case for which defendant was supposed to, but did not, testify, and received a 27-years-to-life term, plus 15 years, which has been affirmed by this court. (People v. Garrett, Oct. 21, 2008, E039367 [nonpub. opn.], and People v. Abbott, Oct. 21, 2008, [nonpub. opn.], E040423.) Both of these render defendant’s “contribution” to society via his testimony in the slashing case a nullity.
Defendant attempts to place blame for the fact that he did not testify in the attempted murder and torture case at the feet of the officer to whom he was obligated, by the terms of his bargain, to report to weekly. Once again, defendant’s effort is in vain. It was his obligation to let the officer know where he was in the Arizona prison system. Moreover, by then, as the prosecutor explained at sentencing, his breach of the plea bargain by engaging in criminal activity in Arizona had rendered him useless as a reliable prosecution witness in the attempted murder/torture case.
Finally, as the People correctly note, in both April 2002 and January 2003, defendant waived his right to appeal as part of his bargain. In determining that defendant voluntarily entered into this bargain, we necessarily conclude also that he is bound by that waiver.
We reject defendant’s contention that because he waived his right to appeal when the maximum sentence he faced was three years (in April 2002) he should have refilled out the change of plea form when the maximum sentence was 23 years (in January 2003). Defendant signed the change of plea forms on both dates, and the waiver of his right to appeal bound him on both bargains.
Disposition
The trial court is directed to amend the abstract of judgment to show that there is a fifth enhancement under Health and Safety Code section 11370.2, subdivision (a), for which a three-year term was imposed. In all other respects, the judgment is affirmed.
We concur: RICHLI, J., MILLER, J.