Opinion
C086720
08-05-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH PATRICK FIELD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. STK-CR-FECOD-2016-0010415)
Defendant Joseph Patrick Field pleaded guilty to two counts of lewd and lascivious acts with a child under the age of 14 (Pen. Code, § 288, subd. (a)) and was sentenced to a stipulated term of 10 years in state prison.
Undesignated statutory references are to the Penal Code.
On appeal, he contends the trial court abused its discretion in denying his motion to withdraw the plea based on a critical misapprehension of the state of the case. We shall affirm.
BACKGROUND
According to the factual basis of defendant's plea, between July 15 and July 25, 2016, defendant twice touched the vagina of Jane Doe, who was born in February 2011 and lived with defendant.
The Plea
Defendant was initially charged with two counts of digital penetration or oral copulation of a minor under the age of 10. (§ 288.7, subd. (b).) On the day of the preliminary hearing, March 27, 2017, defendant's retained counsel, Mary Ann Bird, stated defendant was willing to accept the prosecution's offer of pleading guilty to two counts of the reduced charge of lewd and lascivious acts with a child under the age of 14, with a stipulated term of 10 years. Defendant had several questions about credits against his sentence, how the plea gave him two strikes, whether he would get a strike for defending himself from an assault while in prison, and who determines if he acted in self-defense while in prison. After defendant expressed concern about getting assaulted in prison and said he was innocent, the trial court told defendant it sounded like defendant was not ready to enter a plea. Defendant agreed.
The prosecutor replied that he had not planned on offering anything at this time, but made the offer, for this day only, at defense counsel's request because defense counsel thought defendant would take the offer. The initial complaint had an exposure of two life terms, and if defendant did not take the prosecution's offer, he will not get it again, because the prosecutor planned to have the young victim testify at the preliminary hearing that day. After the trial court explained to defendant the court's experience as a former official with the Department of Corrections and Rehabilitation and the existence of sensitive needs in yards at California prisons, defense counsel asked to confer with defendant. While defendant conferred with counsel, the court took the no contest plea of the codefendant, the victim's mother, to felony child endangerment. (§ 273a, subd. (a).)
Following codefendant's plea, counsel informed the court that defendant accepted the prosecution's offer. During the second and final plea colloquy, defendant asked the trial court about his ability to move to another county or state when he was on parole, about GPS monitoring while he was on parole, whether he had to pay for the GPS monitor, and when victim restitution would be ordered. Defendant also asked if the deal would be off if he asked for more time to defend himself. When the prosecutor reiterated that the offer, which had been in place since September, expired that same day, defendant stated, "I've had enough time to converse with her, yeah, I just haven't had enough time to defend myself, I don't think, so that's the thing I'm upset about."
Motion to Withdraw the Plea
Defendant, represented by new counsel, moved to withdraw the plea on August 10, 2017, asserting he had not received the results of the SART (sexual assault response team) examination or his DNA test, former defense counsel (Bird) failed to follow up on a lead from defendant that the victim said she lied during the child center interview, and that Bird had told defendant before entering the plea that he could withdraw the plea within 180 days of entering it.
The prosecution filed a response which asserted the following facts concerning events before the plea: "On March 6, 2017, a preliminary hearing was set for March 27, 2017. In that hearing, Ms. Bird requested the People to provide her the results of the DNA analyst. During a side conference, the People advised Ms. Bird that if there was any positive DNA results the People's offer would be higher than the 10 year offer previously recited. On March 14, 2017, Ms. Bird sent an email to Elton Grau, the prosecutor on the Field case, requesting the results of the DNA test. Mr. Grau forward[ed] the email to Domingo Rivera, [the] San Joaquin District Attorney's Office clerk, to forward the results of the test. Mr. Domingo sent out the results of the test on March 15, 2017." Copies of Bird's e-mail to Grau requesting the discovery, Grau's e-mail forwarding the request to Rivera, and Rivera's reply to Grau that he would do so were attached to the response.
The motion was heard on November 20 and December 1, 2017. Defendant testified that he had no prior experience with the criminal justice system and was a handyman plumber whose education extended to high school and some vocational classes at junior college. Defendant had intended to proceed with the March 27, 2017 preliminary hearing. Communications with Bird led him to believe the preliminary hearing would happen that day. Prior to that day, he had no indication from Bird that she would resolve the case through a plea.
Defendant never saw defense exhibit A, an e-mail Bird sent to the prosecutor on March 14, 2017, requesting the SART examination and DNA reports, along with other discovery materials. Defendant had given a DNA sample; Bird told him its usefulness depended upon the results. Defendant was concerned about the DNA sample, as it could be used as evidence against him. Defendant asked Bird about DNA evidence several times, but "she would say forget the DNA, get off DNA, they don't need that. All they need is a witness." Defendant did not receive the DNA test results before he entered his plea. He also asked Bird for the SART examination results but never received any.
Defendant believed defense exhibit B was a writing indicating, "how the preliminary exam happens and that you can take a plea on the sentencing and you can take the plea back." Bird wrote it in his presence before the preliminary hearing date. Defendant understood the diagram to mean he had 180 days from sentencing to withdraw the plea. Bird told him more than once that he had 180 days from sentencing to move to withdraw the plea.
A handwritten diagram in the form of a flow chart, indicating that if there was a plea, there were 180 days from sentencing to file a motion to withdraw the plea.
When he conferred with Bird in the holding area that day, Bird told defendant that she "had some missed information that was very damaging from the discovery. She didn't see it before." Bird told him it was "tantamount to admission of guilt."
Defendant identified this admission as a portion of a transcript in which he says, "It is possible I'm under arrest and (inaudible) file and that is just it, suspected child molestation. Well, unless you got proof of it and I don't want to see no file on me get rid of it, yeah."
Defendant was originally represented by John Panerio, who he replaced with Andrew Dosa on August 17, 2016. Dosa was discharged on November 1, 2016, and Panerio resumed representing defendant; Panerio informed defendant at some point in November about a 10-year offer from the prosecution. Defendant did not want to plead guilty and retained Bird on December 20, 2016. He met with Bird about three times in county jail.
Defendant did not want to plead guilty when he entered his plea on March 27, 2017, but did so because he did not know what else to do. He was told the offer would be taken off the table if he did not accept it that day; Bird told him he could get a life term if he did not plead guilty.
Bird testified that defendant retained her on December 12, 2016. Before he entered his plea, she saw defendant at the jail on her December 10, 2016 contact visit, and at the jail on January 21, February 12, March 5, March 25, April 8, April 25, and May 7, 2017, before she was relieved on May 8, 2017. She spoke to defendant about a plea agreement from the very beginning. Defendant, who was concerned about the cost of retained counsel to his family, wanted to take the deal, but she persuaded him to reconsider. The offer was discussed at every subsequent contact, but defendant did not know the specifics of the proposed deal.
Bird believed the prosecution's offer would expire if not accepted the first day she appeared for defendant, but the prosecutor would entertain a counteroffer on the next court date. On February 12, 2017, she informed defendant of the consequences of the plea, his defenses and their weaknesses, the strength of the prosecution's case, defendant's constitutional rights, and his minimum and maximum exposure. She did not discuss defendant's statement to the police but did discuss the DNA evidence with defendant at this meeting. The prosecutor said the offer would be different if there was DNA evidence; Bird thought he would not entertain a counteroffer if there was DNA evidence. Her advisements to defendant "were in general and it was actually based on the age of the minor, the potential of recollecting while on the stand, also the lack of any DNA evidence."
On March 14, 2017, Bird sent to the prosecutor a request for discovery that included the results from the SART examination and DNA testing. The prosecutor's consistent reply regarding this request was, "I will ask for all the reports, and once I get anything I will get them to you." Defense counsel also made a previous request for discovery of all items the defense was entitled to receive. She did not have the DNA or SART examination reports when defendant entered his plea on the scheduled day for the preliminary hearing and was never given them. The prosecutor never claimed to have this evidence and told her he had not received it.
Bird met with defendant in the courtroom's holding cell on the day of the preliminary hearing. She recently gave him a transcript of his statement and told him that some of the statements would be tantamount to an admission of guilt. That statement was made by defendant when he was talking to himself in his jail cell; Bird thought defendant incriminated himself when he said to get rid of something. Afraid he would otherwise get a longer sentence, she advised defendant to take the deal. She also told defendant that once he entered the plea, "it is like concrete. You have to show good cause." Visiting defendant in jail after he entered his plea, Bird told defendant that he could move to withdraw the plea now, but once he was sentenced, he had 180 days to file the motion.
The handwritten chart in defense exhibit B was written after defendant's guilty plea. Bird drafted it when she visited defendant at the jail on April 25, 2017, to get his authorization to release his records. She explained to defendant that, between the day of the plea and sentencing, he could file a motion to withdraw from the plea for good cause, with the last day to file being 180 days after sentencing.
Defendant's family was unhappy with the plea after defendant entered it. Bird later received letters from defendant and his brother expressing their desire for defendant to withdraw the plea. Defendant also asked for all discovery to be made available to his brother. On April 11, 2017, defendant's brother wrote her a letter expressing the family's shock at the plea, asking for all records, and expressing an intent to seek new counsel to prepare a motion to withdraw the plea. Defendant sent her a letter dated April 17, 2017, asserting his innocence and asking for a copy of the statement she believed was incriminating.
Domingo Rivera is a legal technician for the San Joaquin County District Attorney's Office working in the domestic violence unit. On March 14, 2017, the prosecutor sent him an e-mail requesting that he forward various discovery items to Bird, including the results of the DNA test and the SART examination. He responded that he would make copies of the requested items, and put them in a package for Bird, which was placed at the front desk of his office for pickup by Bird's office, as was customary. If an attorney did not pick up the package, the front desk was supposed to inform Rivera or one of his colleagues. The front desk would then generally be asked to give the attorney a second call. When the prosecutor told him Bird never received the discovery, he checked the front desk, but the package was gone.
The trial court found the prosecutor was not dilatory regarding discovery; Bird never got the items requested and they are not in evidence. Defendants often enter pleas before they have all the evidence. The court found defendant entered the plea without the DNA report or SART examination results, but he factored many other things into his decision, and the court had no evidence the decision would be different if he had those items at the time. Bird did not pressure defendant to enter the plea; she did her job in advising him of her view of the transcript. For these reasons, the trial court denied the motion.
DISCUSSION
Defendant contends the trial court erred in denying his motion to withdraw his plea.
"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.' [Citation.]
"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 (2012) 205 Cal.App.4th 1409, 1415-1416.)
On a motion to withdraw, the trial court is the exclusive judge of credibility. (People v. Caruso (1959) 174 Cal.App.2d 624, 636.) It need not "accept and give credence to the affidavits submitted in support of the motion." (Ibid.) Nor must it " 'accept as true the sworn testimony of a witness, even in the absence of evidence contradicting it.' " (Ibid.)
Defendant argues the utility of the DNA test and SART report to his defense were patent. If the DNA test implicated defendant, it would affect his assessment of the case's strength, while the lack of forensic evidence would rest the prosecution's case on the testimony of a young child and the codefendant. According to defendant, if the DNA test found none of his DNA on the child, then his claim that he did nothing illegal or improper would be powerfully buttressed.
Defendant additionally claims that he and his trial counsel considered the prosecution's offer to be provisionally made to hasten the conclusion of the case, and assumed that the prosecutor believed his case would be improved by the results of the test, causing any subsequent negotiations to be based on the stronger case with a higher offer, thereby increasing the pressure on defendant to accept the plea based on his incorrect assumption. He concludes that the fact that the prosecution was willing to make a 10-year offer knowing the results of the DNA and SART reports was a material fact affecting his decision to enter the plea, which he should be permitted to withdraw.
The results of the DNA test and SART exam are not in the record. Since the results of those tests appeared to be available before defendant entered his plea, when Rivera sought to send them to Bird on March 14, 2017, it can be reasonably inferred the prosecutor knew the results. While there is a basis to infer that this evidence did not implicate defendant as the prosecutor did not change the offer from the original 10 years, the fact remains neither defendant nor the prosecution sought to inform the court of the test results at the hearing on defendant's motion.
Even if we were to assume the results most favorable to the defense, that his DNA was not found on the victim, defendant fails to establish good cause for withdrawal by clear and convincing evidence. First, there is no evidence for defendant to have believed accepting the plea when he did, prevented him from having to accept a worse plea if he was later implicated by the DNA test. The prosecution's statement at the change of plea hearing showed this was defendant's last opportunity to get any plea agreement. At Bird's request, the prosecutor reopened the 10-year offer on the day of the preliminary hearing. The prosecutor stated that if defendant rejected the prosecutor's offer and the case went forward with a preliminary hearing, then the prosecutor would not entertain another offer as the young victim would have to testify at the preliminary hearing. This was not an offer to resolve the case quickly, but rather an effort to spare the six-year-old victim from testifying. Defendant had no reason to believe that accepting this offer would forestall a worse offer later if DNA evidence subsequently implicated him because this was the last offer he would ever get.
At the time he accepted his plea, defendant was facing a maximum exposure of 30 years to life for the two charged offenses. (See §§ 288.7, subd. (b), 669, subd. (a).) The complaining witness, while very young, was evidently ready to testify. If the case went to trial, then the codefendant, the child's mother, would also testify. Finally, defendant's remarks that were identified by Bird as inculpatory had the potential to support the other evidence. While defendant expressed concerns about his plea on the day he gave it, those concerns were focused on how much time he would serve and his safety in prison. Neither his plea colloquy nor Bird's testimony indicated he had any concern with the potential DNA evidence or forestalling a worse offer by accepting the offer before him.
Part of codefendant's plea agreement was that her crime would be reduced to a misdemeanor if she completed her probation without incident and testified truthfully at any preliminary hearing or trial of defendant.
The cases defendant primarily relies on, People v. Ramirez (2006) 141 Cal.App.4th 1501 and People v. Dena (1972) 25 Cal.App.3d 1001, do not persuade us. In Ramirez and Dena, the prosecutor failed to disclose, before the defendant changed his plea to guilty or no contest, evidence in the prosecutor's possession that was favorable to the defendant. (Ramirez, at pp. 1504-1505; Dena, at pp. 1006-1007.) The evidence at issue here is not known to us and was, at best, not damaging to defendant. DNA evidence is not necessary for a successful prosecution in cases of child sexual abuse, which often involve discovery of the crime long after it happened. The fact that defendant did not know that the prosecution's case may not be further strengthened by DNA evidence is not good cause for withdrawing his plea. There was no abuse of discretion in denying his motion.
DISPOSITION
The judgment is affirmed.
/s/_________
BLEASE, P. J. We concur: /s/_________
ROBIE, J. /s/_________
MAURO, J.