Opinion
B226009
10-20-2011
THE PEOPLE, Plaintiff and Respondent, v. CESAR MADRIGAL, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PA063915)
APPEAL from a judgment of the Superior Court of Los Angeles County. Jeffrey M. Harkavy, Commissioner. Affirmed.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Cesar Madrigal pled no contest to one count of first degree residential robbery in violation of Penal Code section 211 and one count of child abuse in violation of section 273, subdivision (a), as part of a negotiated plea agreement, and admitted the truth of the allegation that he intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c). Five months later, appellant filed a motion to withdraw his plea, which the trial court denied. The trial court sentenced appellant to his previously agreed-upon sentence of 23 years and dismissed two counts of assault with a firearm and two counts of child abuse. The trial court granted appellant's request for a certificate of probable cause. Appellant appeals, contending the trial court abused its discretion in denying his motion to withdraw his plea. We affirm the judgment of conviction.
All further statutory references are to the Penal Code unless otherwise indicated.
Facts of the offenses
The facts are taken from the probation report in this matter, as appellant entered his plea before a preliminary hearing was held.
In 2009, appellant went to Richard Hall's home. Appellant and Hall were friends. Appellant demanded money from Hall. Hall refused, and a fight ensued. Hall's roommate, Garrett Behnke, heard the sounds of a struggle, looked into Hall's room and saw appellant and Hall wrestling on Hall's bed. Behnke saw appellant holding a gold-colored gun. Behnke left Hall's room, then heard two loud noises that sounded like gunshots. Hall, who had been shot twice in his hips, gave appellant $3,000. As appellant left Hall's room, he pointed his gun at Behnke and said, "Get back." Appellant drove away in a black Cadillac Escalade.
Police officers on their way to the scene of the shooting stopped appellant's vehicle. Yvonne Gutierrez was driving. Three small children were in a rear seat. Appellant was hiding near the children. After appellant got out of the car, police found a gold-colored revolver on the floor of the car, near the children. One of the children said, "That's daddy's gun, it's just a toy." Two rounds had been fired from the gun. Police also found $3,000 in cash under a seat.
Procedural facts
On October 6, 2009, prior to the preliminary hearing, appellant was represented by Christopher Sharpe of the Public Defender's Office. Appellant asked the court for a continuance to hire a private attorney because he was unhappy with Sharpe's assessment of a reasonable plea deal. Sharpe had advised appellant that 15 years would be a realistic offer to the prosecutor. The prosecutor had offered 19 to 24 years. Sharpe also said the prosecutor was going to amend the complaint to add special allegations, substantially increasing appellant's exposure. The court gave appellant one month to retain private counsel.
On November 9, 2009, Sharpe still represented appellant. Appellant pled no contest to count 1, first-degree residential robbery, with a special allegation of intentional discharge of a firearm, and count 4, child abuse, as part of a negotiated plea agreement.
Before taking appellant's plea, the prosecutor described the charges to which appellant was pleading, and appellant said he understood. The prosecutor explained the agreed-upon sentence of 23 years, which was arrived at by the low term of three years on count 1, plus 20 years for the gun allegation, and a concurrent term of four years on count 4. Appellant said he understood.
The following exchange took place:
Prosecutor: "And have you had enough time to speak with your lawyer about these charges, any defenses you might have and your constitutional rights? Have you had enough time to speak with him?"
Appellant: "Yes."
Prosecutor: "Do you need further time to speak with him?"
Appellant: "No."
Prosecutor: "After speaking with your attorney, is it your desire to plead no contest to these charges today?"
Appellant: "No contest."
The prosecutor advised appellant of his constitutional rights, and appellant said he understood and gave up his rights. The prosecutor explained the consequences of appellant's plea, and appellant said he understood each consequence.
Appellant gave the following answers about the voluntariness of his plea:
Prosecutor: "Are you pleading no contest freely and voluntarily?"
Appellant: "Yes."
Prosecutor: "Has anyone made threats or promises to you or anyone close to you in order to get you to enter your no contest plea today and to admit the allegations?"
Appellant: "No."
Prosecutor: "And are you pleading no contest because it is in your best interest to do so?"
Appellant: "Yes."
After taking appellant's plea, the court stated: "The court finds [appellant] has freely and voluntarily, understandingly, intelligently, waived his constitutional rights with an understanding of the nature and consequences thereof. [¶] The court finds there is a factual basis for the plea. [Appellant's] plea and admission to counts 1 and 4 as well as the admission of the use of the firearm are accepted by the court and [appellant] is found guilty upon his plea."
On April 8, 2010, appellant filed a motion to withdraw his plea through private counsel, Betsy Mogul. The prosecution opposed the motion. A hearing was held on April 23, 2010 and June 18, 2010.
At the hearing, appellant testified that he had never been arrested or charged with a crime before. He believed he was charged with attempted murder. The first time he met with Sharpe, it was a quick meeting, lasting five to six minutes. Sharpe did not tell him what the charges were, but said he was facing 17 years and that he should waive time. The meeting was in "the tank," where it was loud, and appellant could not hear Sharpe well. The only thing appellant was clear about was that he had no chance of winning. Appellant asked Mr. Sharpe for a copy of his discovery, but never received it.
At the second meeting, Sharpe told appellant the clerk had made a mistake, and he was now facing life. Sharpe stated that appellant had no chance to win at trial because he had confessed. Appellant told Sharpe that he never told the police he shot the victim, but had told them he had not wanted to hurt the victim. Sharpe would not listen to appellant's explanation of the facts, and said, "It's pretty much done. I can't help you out." This meeting was also very quick. Appellant never met with Mr. Sharpe for more than ten minutes.
After this meeting, appellant lost faith in Sharpe. Appellant tried to hire a lawyer, but did not do so. When appellant came back to court, he believed he had no choice but to continue with Sharpe.
Sharpe kept giving appellant increasing estimates of the maximum time he could spend in prison. The day appellant entered his plea, Sharpe said he was facing 69 years to life. Appellant did not understand that his time was increasing because charges were being added.
Appellant told Sharpe he wanted to take his case to trial, but Sharpe told him, "No, you can't. You have no hope in winning. You're screwed. Sorry." Appellant asked Sharpe if he could fight for him, and he said, "I can't do nothing for you."
The day appellant pled no contest, Sharpe told him about an offer of 23 years, and said it was the best deal he could get. This was the first time appellant was told about any offer. Sharpe met with appellant in the booth for about five minutes, left to talk to someone, and came back for another five-minute talk.
Appellant said he wanted time to think about it, but Mr. Sharpe said he had to decide at that point or the deal would be off the table, and appellant would regret it. Mr. Sharpe told him, "[T]he next time you come back we're going to San Fernando, [Gutierrez] is going to be brought back and handcuffed, arrested." Ms. Gutierrez also told appellant that Sharpe had told her if appellant did not plead, there was a 99 percent chance that she would be arrested and charged as a codefendant in his case.
Appellant felt he had no choice but to plead. He made the decision to plead while Mr. Sharpe was sitting there with him.
Appellant did not tell the court he felt pressured to plead because he did not think he could make any statements or voice his opinion in court. He felt scared, confused, and stressed. Appellant did not remember the court asking him if he was pleading of his own free will. In fact, he did not remember what happened in court that day other than looking to Sharpe for guidance about how to answer the questions. Appellant claimed that when he entered his plea, he did not understand the charges or to what he was pleading. He admitted knowing he was charged with robbery and believed he was charged with attempted murder, however. He also admitted knowing that he was facing many years in prison.
Prior to getting on the bus for court on the day of the plea hearing, appellant took some medication from a fellow inmate because he felt nervous and stressed. Appellant felt more stressed after taking the medication, and it gave him a migraine. He began feeling more stressed when he was talking to Sharpe about his potential deal.
Sharpe also testified at the hearing on appellant's motion. He stated that he had practiced as a criminal attorney for ten years and had been with the Los Angeles County Public Defender's Office for nine years. He had been assigned to felony cases for about three and a half years and had represented many hundreds of felony defendants. He had completed 12 to 15 felony trials at the time of appellant's plea. About ten percent of his cases pled before the preliminary hearing.
Sharpe did not review his file in appellant's case before testifying because it was in the archives.
Sharpe testified that when he represented appellant, he reviewed the discovery provided by the prosecution, then reviewed the case with appellant and advised him to seek a disposition prior to trial. Sharpe told appellant how many years he was facing and advised him that the complaint could be amended to add a life allegation. Sharpe could not recall how many years that was, but believed it may have been twenty-something. He also expressed his opinion that "there could be no additional charges against [Gutierrez] as to the alleged crimes against him." Sharpe never told appellant that a plea in this case would affect Ms. Gutierrez legally. Appellant told Mr. Sharpe he wanted to offer a settlement, but without significant time.
The meeting took place in a private interview room. It involved an in-depth discussion about the case, which lasted about half-an-hour to an hour. Appellant conversed with Mr. Sharpe about the issues raised and appeared to understand.
After the first amended complaint was filed, Sharpe met with appellant and again advised him that it was in his best interest to seek a disposition. Appellant appeared receptive and asked Sharpe to offer a certain number of years. Sharpe was unsure if an offer was made at that time, but told appellant a realistic offer, based on the first amended complaint, would have been in the upper teens. Appellant was open to an offer in the single digits, possibly seven years. Mr. Sharpe was unsure but believed there may have been an offer of 14 years or he was going to ask for 14 years. Appellant said that was too much time because this was his first offense.
After the second amended complaint was filed, Sharpe explained to appellant that his exposure had increased to 38 years to life, based on the addition of special allegations. Appellant appeared to understand. Appellant raised a possible defense to the discharge of the gun. Sharpe advised appellant it would be a difficult defense. He told appellant it would be "a hard sell for a jury to find him not guilty."
Sharpe received an offer of 23 years, and conveyed that offer to appellant. Sharpe advised appellant that it was in his best interest to accept the offer based on the facts of the case and appellant's incriminating statements. Appellant was upset but appeared to understand the offer. He initially rejected it because he felt it was too much time. Sharpe told appellant this was a pre-preliminary hearing offer, and it would likely be the best disposition he would get short of an acquittal. He told appellant that his choices were to accept the offer or elect to go to trial. Appellant struggled with the decision and appeared to weigh his choices.
Sharpe did not tell Gutierrez that she faced potential charges or incarceration if appellant did not plead. He did not tell her to convince appellant to plead to save her.
Sharpe said he met with appellant each time he came to court, sometimes multiple times a day, and estimated they met at least six times prior to his plea. Sharpe also spoke to appellant's family, at appellant's request, and advised them to talk to him about making a decision based on the facts of the case. Sharpe told Gutierrez about the time appellant was facing and offered his opinion that it was in appellant's best interest to plead.
Sharpe believed that the offer of 23 years had been on the table for about two to three weeks at the time appellant entered his plea. After a few discussions, appellant said that he was willing to accept the offer.
Appellant never indicated that he wanted to go to trial. Sharpe never told appellant that he was unwilling or unable to take the case to trial. He stated: "I advised him it would be in his best interest to seek a disposition, but the final say is always in the client's hands."
Appellant never appeared to be under the influence of any kind of substance. On the day appellant entered his plea, he appeared distraught but seemed alert and aware. He never told Sharpe he was not feeling well or had taken any kind of medication. During the plea, appellant never indicated an unwillingness to go forward and never said that he did not want to plead. At the next court appearance after the plea, however, appellant told Sharpe he did not want to accept the offer.
The trial court denied appellant's motion to withdraw his guilty plea.
Discussion
Appellant contends that the trial court abused its discretion in denying his motion to withdraw his no contest plea. We see no abuse of discretion.
Section 1018 permits a trial court to allow a criminal defendant to withdraw his guilty plea "for a good cause shown." (§ 1018.) Good cause includes mistake, ignorance, fraud, duress or any other factor overcoming the exercise of free judgment. (People v. Cruz (1974) 12 Cal.3d 562, 566; People v. Ravaux (2006) 142 Cal.App.4th 914, 917.) Good cause must be shown by clear and convincing evidence. (In re Vargas (2000) 83 Cal.App.4th 1125, 1142.) Guilty pleas resulting from a plea bargain should not be set aside lightly. (People v. Sandoval (2006) 140 Cal.App.4th 111, 123.)
When a defendant is represented by counsel, the trial court has discretion to grant or deny the withdrawal of the plea after consideration of "all factors necessary to bring about a just result." (People v. Sandoval, supra, 140 Cal.App.4th at p. 123.) The trial court's ruling will be upheld on appeal unless an abuse of discretion is clearly demonstrated. (People v. Ravaux, supra, 142 Cal.App.4th at p. 917.) All factual findings by the trial court that are supported by substantial evidence must be accepted. (Ibid.)
Here, the court found that appellant entered his plea voluntarily, understandingly and intelligently, and of his own free will and accordingly denied appellant's motion to withdraw that plea. There is substantial evidence to support this ruling, in the form of Sharpe's testimony and the court's own recollection of appellant's acceptance of the plea agreement.
Appellant and Sharpe presented two differing versions of events leading up to appellant's acceptance of the plea agreement. The trial court found Sharpe credible and accepted his version of events. Appellant contends that the trial court should not have found Sharpe credible because Sharpe did not review the case file before the hearing and was vague and equivocal about many things.
The trial court was aware of Sharpe's failure to review the case, and did not agree with Sharpe's recollection of events in every detail. The court had the advantage of observing Sharpe's demeanor during his testimony and also appellant's demeanor during appellant's testimony. Further, the court had its own recollection of the plea hearing. We have no basis to second-guess the court's credibility determinations. (See People v. Ravaux, supra, 142 Cal.App.4th at pp. 917-918.)
For example, it appears that the court believed appellant's testimony on the length of time appellant had to decide on the plea offer and not Sharpe's testimony on that point.
Appellant also contends that even under the undisputed facts, he demonstrated good cause to withdraw his plea. We do not agree.
It appears to be undisputed that appellant had never been arrested or convicted for any crime before this case and had no experience with the criminal justice system. He was a 26 year-old high school drop-out. The trial court found that appellant demonstrated an understanding of his circumstances and his plea at the plea hearing, however. Appellant stated that he understood the charges against him, the sentence he would receive and the constitutional rights he was waiving. He stated that he was pleading no contest freely and voluntarily and that no threats or promises had been made to him to get him to plead. The trial court specifically found that appellant showed his understanding by asking questions during the plea hearing, and at one point stating that he did not understand something the prosecutor had just said. Further, appellant had previously requested a continuance to hire counsel to replace Sharpe and told the court that the reason he wanted to hire counsel was that he was unhappy with his potentially lengthy sentence. These events further show that appellant was able to understand his case and speak up when unhappy.
The prosecutor restated his comments, and appellant stated that he understood.
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It was uncontradicted that appellant took some kind of pill on the way to court the day he accepted the plea deal. The trial court found that appellant did not appear to be under the influence during his plea, however, and that he answered questions clearly and directly, showing that his understanding was not impaired. (See People v. Fairbank (1997) 16 Cal.4th 1223, 1254 [motion to withdraw plea properly denied; trial court was entitled to disbelieve defendant's claim of intoxication based on its own observations of defendant during the plea].)
The trial court accepted Sharpe's representation that he told appellant that his case would be a "hard sell" and that a plea would be in his best interest. As the trial court recognized, appellant's counsel did dispute this assessment of the case. The trial court concurred in Sharpe's assessment of the difficulty of obtaining an acquittal. The court also pointed out that the plea deal was for a determinate term, which although lengthy, would ensure that appellant would get out of prison. A conviction at trial would have resulted in a life term, and there was no guarantee that appellant would be paroled. Thus, appellant did not show any misadvisement by counsel.
The trial court accepted appellant's claim that he had only one day to consider the plea offer. A short time to consider a plea offer is common and does not provide a sufficient basis to withdraw a plea. (People v. Watts (1977) 67 Cal.App.3d 173, 183 [denial of motion to withdraw guilty plea proper where defendant was given only one hour to accept or reject offer].) Further, appellant was specifically asked during the plea hearing if he had had enough time to speak with his attorney and if he wanted more time. Appellant replied that he had had enough time.
Appellant's belief about the impact of his plea on Gutierrez was not fully contradicted. Appellant testified that he believed that if he did not enter a plea, Gutierrez would be arrested and charged in the case. Appellant claimed that both Sharpe and Gutierrez told him that this was the case. Sharpe denied telling appellant or Gutierrez that she would be charged if appellant did not take the plea, or under any circumstance. The trial court found Sharpe credible. Appellant's claim that Gutierrez told him that she would be charged was undisputed. A claim that a family member pressured a defendant into a plea is not enough to constitute duress, however. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)
In sum, the record shows only that appellant was under the same pressures as every other defendant charged with serious felonies and offered a plea bargain. A defendant's reluctance and uncertainty about whether to plead does not make the plea involuntary and is not sufficient to show good cause to withdraw the plea. (People v. Huricks, supra, 32 Cal.App.4th at p. 1209; see People v. Hunt (1985) 174 Cal.App.3d 95, 104 [motion to withdraw plea properly denied where plea was "against [defendant's] better judgment"].) The trial court did not abuse its discretion in denying appellant's motion to withdraw his plea.
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, J. We concur:
TURNER, P. J.
MOSK, J.