Opinion
A149618
02-16-2018
THE PEOPLE, Plaintiff and Respondent, v. ERIK STEVEN MONTES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SC081907B)
Defendant Erik Steven Montes pleaded guilty to felony attempted murder and admitted an allegation of personal infliction of great bodily injury and a gang enhancement. On appeal, defendant contends the trial court abused its discretion by denying his motion to withdraw his guilty plea because he presented clear and convincing evidence he was unduly and improperly influenced to accept the plea bargain. Defendant also argues the case must be remanded to allow defendant an opportunity to make a record for a later youthful parole suitability hearing under People v. Franklin (2016) 63 Cal.4th 261 (Franklin), a point conceded by the Attorney General. We remand the matter for limited further proceedings under Franklin, and otherwise affirm the judgment.
I. BACKGROUND
We briefly summarize the facts of the underlying offense, as they are largely irrelevant to the issues raised on appeal. On April 15, 2013, three young men, including defendant, approached a 17-year-old boy walking alone after school. Defendant grabbed the victim from behind, then stabbed him multiple times in the chest, causing him to fall to the ground. The other two young men kicked and punched the victim as he lay on the ground. The victim was taken to the hospital, where he required numerous stitches on his neck and head. The victim was unable to speak or walk after the assault, and reportedly suffered a stroke while receiving medical treatment.
The facts are taken from the probation restitution report. Additional facts relevant to our analysis of defendant's contentions regarding the motion to withdraw his guilty plea are discussed further below.
In a second amended information filed on April 19, 2016, defendant was charged with attempted deliberate and premeditated murder (Pen. Code, §§ 664, 187, subd. (a); count 1), assault with a deadly weapon (§ 245, subd. (a)(1); count 2), street terrorism (§ 186.22, subd. (a); count 4), and attempted murder (§§ 664, 187, subd. (a); count 6). Two codefendants were also charged with various counts. All counts charged against defendant alleged an enhancement for personal infliction of great bodily injury (§ 12022.7, subds. (a) (counts 1, 2 & 4) & (b) (count 6)), and counts 1, 2, and 6 alleged gang enhancements (§ 186.22, subds. (b)(1)(c) (counts 1, 2 & 6) & (b)(5) (count 1)).
All statutory references are to the Penal Code unless otherwise indicated.
A jury trial commenced with hearings on motions in limine and jury selection. After the jury had been impaneled, just before opening statements, defendant entered a change of plea of no contest to count 6 and admitted the allegations of great bodily injury with brain injury/paralysis and the street terrorism gang enhancement. The remaining charges and special allegations were dismissed.
Two months later, defendant made a motion to withdraw his plea. New counsel was appointed to represent defendant. After briefing and an evidentiary hearing, the trial court denied defendant's motion. Defendant was sentenced to a prison term of 24 years, comprised of an upper term of 9 years for attempted second degree murder, plus 5 years for the great bodily injury enhancement and 10 years for the gang enhancement. With an additional 4 years imposed in unrelated cases, his total term was 28 years. Defendant timely appealed.
After the trial court initially denied defendant's request for a certificate of probable cause, defendant petitioned this court for writ of mandate. (See Montes v. Superior Court, case No. A150998.) We issued an alternative writ of mandate, and the trial court subsequently complied with the alternative writ by granting the request for a certificate of probable cause. At the request of both parties, we take judicial notice of the record in case No. A150998. (Evid. Code, §§ 459, subd. (a), 452, subd. (d).)
II. DISCUSSION
A. Motion to Withdraw Guilty Plea
Defendant contends the trial court erred in denying his motion to withdraw his guilty plea because evidence presented at the hearing showed he felt pressured by his attorney to accept the deal despite misgivings, he was not allowed to talk with his family and was given only a few hours to consider the offer though he asked for time to think about it overnight, and his attorney did not inform him when he would be entitled to initial and subsequent parole hearings if convicted at trial, nor explain the factors considered by the Board of Parole Hearings (the Board) at a parole hearing.
1. Background
In support of his motion to withdraw, defendant filed a declaration in which he claimed (1) on the first day of his trial, he was prepared to go forward and had "no expectation" he would receive any offer of a negotiated plea; (2) defendant was approached by his attorney, Jonathan McDougall, and investigator, Scott Williams, "[l]ate in the morning" on the first day of trial about the possibility of a deal; (3) about 10 to 20 minutes later, McDougall and Williams returned with a plea form to explain the terms of the deal; (4) defendant told McDougall he did not want to accept a deal and wanted to go to trial; (5) McDougall and Williams told defendant he would be convicted at trial and the only way to avoid a life sentence was to take the offer; (6) McDougall "continued to pressure" defendant over the course of the next hour to take the offer though defendant "continued to tell [McDougall he] wanted to proceed to trial"; (7) defendant asked to think about it overnight and discuss the offer with his mother but McDougall told him " 'they would not allow it,' " which defendant took to mean the judge and the prosecutor; (8) McDougall told him he had to decide by 1:30 p.m. what he was going to do; (9) defendant knew that evening he had made a mistake and would not have accepted the plea if he had more time to think about it; and (10) he signed the offer because he was pressured by McDougall, who forced him to make a decision that morning.
At the evidentiary hearing on the motion to withdraw, the defense called both McDougall and defendant as witnesses. McDougall testified that up until the first day of trial, defendant had wanted to go to trial and McDougall advised he should. Multiple negotiations had occurred over the course of "roughly two plus years" on this case and three others, but in this case, the prosecution had insisted on an "open plea," which would require a life sentence on the attempted murder charge.
Defendant waived his attorney-client privilege with respect to the circumstances of his plea. --------
At 8:30 a.m. on the first day of trial, McDougall approached the prosecutor, Bryan Abanto, to inquire if the parties could discuss a determinate sentence. That decision was motivated by two unexpected events: first, defendant had believed the victim and witnesses would not appear and testify, but on the first day of trial, both the victim and the "main eyewitness" were outside the courtroom; second, defendant had anticipated favorable testimony from a codefendant, but the previous day defense counsel had interviewed the codefendant and learned he would not testify on defendant's behalf. After McDougall asked about a determinate sentence, Abanto indicated he would need to talk with his office. At that point, McDougall went to speak with defendant. Defendant instructed McDougall to " 'get a number.' " After speaking with Abanto again, McDougall returned to defendant along with his investigator, Scott Williams, with a proposed stipulated sentence of 28 years—24 years on the attempted murder charge and 4 years for his other cases.
McDougall testified he had "probably three hours of conversations" with defendant. He had "lengthy conversations about the different options," and told defendant "[s]everal times" it was his decision. When asked for his opinion, McDougall said "it was a good offer considering the odds of being successful at trial," and in his professional opinion, defendant should accept the offer. McDougall conceded defendant was reluctant to accept the offer. After defendant requested additional time to consider the offer, McDougall asked Abanto if defendant could think about it overnight and talk with his family. Abanto refused, and when the parties discussed the issue with the court, the judge indicated it was his understanding the offer would not be open and an overnight break would not be allowed.
Around 10:30 or 11:00 a.m., McDougall conveyed to defendant he would not be allowed to think about the offer overnight. "At this point," McDougall said, "he was going back and forth" about whether to take the offer. McDougall testified there was "some crying" and "discussions about it being a life sentence regardless of whether it was a determinant or indeterminant" sentence. After defendant asked to talk with his family, McDougall had Williams talk with defendant's mother and girlfriend outside. McDougall remembered defendant's mother wanted to hand him a religious card with a prayer on it. She told Williams she had been praying to God, God had indicated he would take care of everything, and defendant should go to trial and not take the deal. McDougall and Williams relayed the information to defendant.
McDougall discussed with defendant approximately how much time he would serve if he accepted the prosecution's offer. McDougall also told defendant if he received a life sentence at trial, he would be subject to parole, and "depending on his conduct in custody, when he would be initially eligible for parole." McDougall did not recall telling defendant he would be eligible for parole after approximately 15 years on a life sentence, discussing the factors the Board would consider in deciding whether to grant parole, or telling defendant his parole deferral could be as little as three years if he were a model inmate. McDougall also testified he had discussed with defendant, "multiple times" during the previous two and a half years, "the procedure in terms of a life sentence, the availability of parole, how infrequent, and the amount of years in between assuming that he remained out of trouble while in custody."
Around 11:00 or 11:30 a.m., McDougall went to get plea forms, completed them, and explained them to defendant. Defendant finished signing the forms between 12:30 and 1:00 p.m. Though McDougall testified he "would have liked a lot more time" to explain the ramifications of the deal, "at no point did [defendant] indicate to [McDougall] that he was not understanding what was happening, that he was coerced or forced, that it wasn't his free decision."
Defendant also testified at the hearing. Verifying the facts stated in his declaration were true and correct, defendant claimed he felt coerced because he kept telling McDougall he wanted to go to trial but McDougall "kept talking about the deal." Defendant said McDougall did not discuss the plea deal with him until after lunch, and while McDougall was explaining the terms, he felt like he "wasn't in the right state of mind" and his head "felt like it was in a cloud." He testified he "didn't orally understand what [McDougall] was trying to tell [him] when he was talking about a plea deal." Defendant further testified he did not understand how the parole process worked if he received a life sentence, and stated he would not have accepted the deal if he understood he could be released at his first parole hearing after 15.3 years. Defendant denied Williams told him his mother wanted him to take the case to trial.
On cross-examination, defendant conceded he had previously accepted two plea bargains in other matters, and McDougall and Williams "[p]robably told [him] once" that it was his decision whether to plead guilty. Defendant also admitted the trial judge asked him if he was entering the plea freely of his own free will and explained his rights three different times, with three different plea forms. When asked why he felt pressured by McDougall, defendant explained, "I felt like he kept talking about how we would go to trial, and he made it seem really bad to me. . . . I just wasn't processing everything, and I just felt pressured. . . . because he kept talking about how we go to trial if I didn't sign the deal."
McDougall's investigator, Williams, testified at the hearing on behalf of the prosecution, and corroborated much of McDougall's testimony. He confirmed defendant's mother told him that God told her defendant should go to trial and he conveyed that information to defendant, though he did not recall defendant's mother handing him a prayer card. Williams recalled McDougall explaining the plea forms in detail and answering defendant's questions. Both McDougall and Williams told defendant it was his choice whether to take the offer. Williams firmly denied McDougall was trying to coerce or force defendant to take the plea, noting McDougall "was making it clear to [defendant] that the decision was his."
After considering all the papers filed, the evidence submitted, the information in the court file, and based on the court's own recollection of the pleas, the trial court denied the motion to withdraw.
2. The Trial Court Did Not Abuse Its Discretion
A guilty plea may be withdrawn at any time before judgment upon a showing of good cause, established by clear and convincing evidence. (§ 1018; People v. Cruz (1974) 12 Cal.3d 562, 566 (Cruz).) The California Supreme Court has defined good cause as "[m]istake, ignorance or any other factor overcoming the exercise of free judgment." (Cruz, at p. 566.) "Other factors overcoming [a] defendant's free judgment include inadvertence, fraud or duress." (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)
When a defendant is represented by counsel, the withdrawal of a guilty plea is within the sound discretion of the trial court, and the judge's decision will not be disturbed on appeal absent an abuse of discretion. (People v. Weaver (2004) 118 Cal.App.4th 131, 146.) In reviewing the trial court's decision, we accept the factual findings if supported by substantial evidence. (People v. Archer (2014) 230 Cal.App.4th 693, 702.)
Contrary to defendant's claims, there is no evidence defendant's free will was overcome by any action of defense counsel here. McDougall explained the plea forms to defendant, answered his questions, and discussed defendant's options, likelihood of success at trial, and the parole process. Although McDougall shared his professional opinion defendant should take the deal, he told defendant "[s]everal times" the choice was his to make. Faced with a difficult decision, defendant may have reluctantly accepted his counsel's advice, but "[n]othing in the record indicates he was under any more or less pressure than every other defendant faced with serious felony charges and the offer of a plea bargain." (People v. Huricks, supra, 32 Cal.App.4th at p. 1208; People v. Hunt (1985) 174 Cal.App.3d 95, 103 ["Defendant's unwilling acceptance of his counsel's advice is not a '. . . factor overreaching defendant's free and clear judgment.' "].)
Further, though defendant asserts he needed more time to decide, McDougall said he spoke with defendant for approximately three hours about the deal, and defendant had at least two and a half hours to decide after his request to think about it overnight was rejected. "The law does not require that an offer to plead be held open for any specified period of time; it need only be held open for a reasonable period of time, upon request therefor." (People v. Watts (1977) 67 Cal.App.3d 173, 183.) In addition, both McDougall and Williams testified Williams spoke with defendant's mother and conveyed her advice to defendant. Defendant has not shown the amount of time provided was unreasonable, or prevented him from freely and voluntarily agreeing to the plea bargain.
Defendant contends he lacked sufficient information to make an informed decision because his counsel failed to tell him when he would be entitled to parole hearings if he received a life sentence after trial and what factors the Board would consider at a parole hearing. But a plea cannot be attacked on the basis it was made in ignorance simply by alleging defendant did not correctly assess every relevant factor entering his decision. (Brady v. United States (1970) 397 U.S. 742, 757; People v. Knight (1987) 194 Cal.App.3d 337, 344.) McDougall testified he discussed the parole process for a life sentence generally, including "depending on his conduct in custody, when [defendant] would be initially eligible for parole." Defendant does not argue his counsel misled him or gave him inaccurate information, and McDougall's failure to explain every detail of the parole process does not render defendant's plea to a determinate sentence involuntary.
In sum, on the record before us, we conclude the trial court did not abuse its discretion in denying defendant's motion to withdraw his plea. B. Remand for Franklin Hearing
Defendant asserts this matter must be remanded to the trial court for a further hearing because trial counsel was ineffective in failing to make a record of information relevant to defendant's eventual youth offender parole hearing under Franklin. Without taking a position on whether fault lies with defense counsel or the trial court for the failure to make an appropriate record, the Attorney General concedes the matter should be remanded to allow defendant an opportunity to make the record contemplated by Franklin, supra, 63 Cal.4th at page 284.
In Franklin, the California Supreme Court held under sections 3051 and 4801, the defendant was entitled to present evidence in the trial court about his characteristics and circumstances at the time of the offense to facilitate parole consideration at a future youth offender parole hearing. (Franklin, supra, 63 Cal.4th at pp. 283-284.) Here, the record reveals no probation report or other information was prepared or submitted documenting defendant's characteristics and circumstances at the time of the offense, and no such information was presented at sentencing. Accordingly, we accept the Attorney General's concession, and remand the matter to the trial court to conduct a hearing allowing defendant the opportunity to make a record that will allow a future parole board to fulfill its statutory obligations under sections 3051 and 4801. (See Franklin, at p. 284.)
III. DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court for the limited purpose of allowing defendant an opportunity to make a record of information that will be relevant to the Board of Parole Hearings at a future parole eligibility hearing held pursuant to sections 3051 and 4801.
/s/_________
Margulies, Acting P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.