Opinion
A156112
09-10-2019
THE PEOPLE, Plaintiff and Respondent, v. LAMONT MOORE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 615021)
After pleading no contest to forcible rape, forcible oral copulation, and assault by means of force likely to produce great bodily injury in exchange for a 20-year sentence that was significantly lower than he could have received if convicted after a trial, appellant Lamont Moore moved unsuccessfully to withdraw his plea on grounds it was involuntary due to a medical condition. He appeals, arguing the trial court abused its discretion in denying his motion. We see no merit to his arguments and shall affirm.
I. BACKGROUND
The probation report reveals the following background facts.
A. Doe 1
On September 7, 2011, at approximately 10:00 p.m., Jane Doe 1 and a friend were outside a bar on International Boulevard in Oakland. Appellant approached in a light blue sedan and asked Doe 1 if she wanted to smoke marijuana. Doe 1 had her own marijuana and agreed to smoke with appellant if he had some of his own to share as well. Doe 1 approached appellant's car and sat in the passenger seat with the door slightly opened. From the driver's seat, appellant pulled Doe 1 further into the car by her ponytail. He drove off, causing the passenger side door to shut.
Shortly after driving off, appellant produced a silver revolver from the driver's side door area and pointed it at Doe 1. He ordered her to remove her jacket and cover her face with it. Appellant drove to an area near Laney College and parked in an alleyway. Once there, he forced Doe 1 to orally copulate him. He then forcibly raped and sodomized her. During the sodomy, appellant ejaculated and told Doe 1 he "nutted so fast" because he missed "fucking men in prison." Appellant would later make a similar comment to Jane Doe 2, whom he also forcibly sodomized.
During the assault, appellant spoke on the phone to another male, saying, "I've got her. I'm at the spot." Soon after, another car arrived. A second male exited the car and walked over to appellant's car. The second male raped Doe 1 as well. After the second male raped Doe 1, appellant told her, "Give me a good reason why I shouldn't kill you." Doe 1 showed appellant a picture of her kids on her phone and begged appellant to let her go home to them. Appellant stated, "I guess that's what saved you."
Appellant then drove Doe 1 to a point near 18th Avenue and East 12th Street in Oakland and told her to get out of the car. She ran back to the bar and told her friend what happened. They went to Highland Hospital for a SART exam. An anal swab taken during Doe 1's exam contained DNA matching appellant's reference sample, with a statistical frequency of one in one quintillion.
2. Doe 2
On December 17, 2011, at approximately 11:00 p.m., Jane Doe 2 was on the corner of 17th Avenue and International Boulevard in Oakland working as a prostitute. Appellant attempted multiple times to pick up Doe 2 for a "date," but each time she refused. Eventually, appellant spoke to another prostitute who then convinced Doe 2 to go with appellant.
After Doe 2 entered appellant's car, he drove over the overpass to Embarcadero and parked in a dark parking lot. He then pulled out a silver revolver, pointed it at her temple, and questioned her about a person named "Apple," who appellant claimed stole money and drugs from him. After questioning Doe 2, appellant forced her to orally copulate him. Next, appellant forced her into the backseat of the car, where he zip-tied her hands together and placed a jacket over her head. In the backseat of the car, appellant forcibly raped and sodomized Doe 2.
After appellant finished, he drove to 15th Avenue and East 12th Street and let Doe 2 go. She eventually went with her sister to Saint Rose Hospital and reported the rape. She was transferred to Highland Hospital for a SART exam. Evidence collected from a tampon removed from Doe 2 during her exam and the crotch panel of her underwear contained appellant's DNA. After DNA testing identified appellant, Oakland police officers executed a search warrant for his car. Inside the car, police found zip-ties, lubricant, and condoms.
3. Charges and Plea Bargain
Subsequently, the Alameda County District Attorney filed an amended information charging appellant with one count of forcible rape (Pen. Code, § 261, subd. (a)(2))(count 1); two counts of forcible sodomy (§ 286, subd. (c)(2)(A)) (counts 2 & 5); two counts of forcible oral copulation (§ 288a, subd. (c)(2)(A)) (counts 3 & 6); and one count of forcible rape while acting in concert (§ 264.1, subd. (a)) (count 4). Each of the counts also contained allegations under the "One Strike Law." As to counts 1 through 6, the information alleged the offenses were committed against more than one victim (§ 667.61, subds. (c) & (e)(4)), and appellant used a firearm, or dangerous or deadly weapon, during commission of the offenses (§ 667.61, subd. (e)(3)). Counts 1 through 4 further alleged appellant kidnapped the victims (§ 667.61, subds. (d)(2) & (e)(1). Count 5 further alleged appellant tied or bound the victim in the commission of the offense (§ 667.61, subd. (e)(6)).
All further statutory references are to the Penal Code . --------
Each of the counts also contained additional allegations under section 667.6. Counts 1 through 3 alleged appellant came under the purview of section 667.6, subdivision (c), because the offenses were one of several committed against Jane Doe 1. Count 4 alleged appellant came under the purview of section 667.6, subdivisions (c) and (d), because the offense was one of several involving the same victim on separate occasions. Counts 5 and 6 alleged appellant came under the purview of section 667.6, subdivision (d), because the offenses were one of several involving separate victims. All counts were alleged to be violent felonies under section 667.5, subdivision (c).
Appellant agreed to accept a 20-year state prison term—a term significantly less than his total exposure under all charges and allegations brought against him. In accordance with this negotiated plea agreement, appellant pleaded no contest to one count of forcible rape and one count of forcible oral copulation (counts 1 and 6, respectively). He also pleaded no contest to assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), a lesser included offense of count 3. In exchange, counts 2, 4, and 5, as well as all enhancement allegations, were dismissed. Before sentencing, appellant moved to withdraw his no contest plea. He argued his plea was involuntary because a mental health condition greatly affected his judgment. The trial court heard and denied the motion.
Appellant obtained a certificate of probable cause and timely appealed.
II. DISCUSSION
Appellant contends the trial court abused its discretion in refusing to grant the motion. He claims his plea was involuntary because he was not being adequately treated for his mental health condition at the time he entered it. We conclude that substantial evidence supports the trial court's finding that appellant's plea was voluntary.
A. Governing Legal Principles
"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." (§ 1018.) This statute "shall be liberally construed . . . to promote justice." (Ibid.) Good cause for the withdrawal of a guilty plea is any mistake, ignorance, or other factor overcoming the exercise of free judgment. (People v. Breslin (2012) 205 Cal.App.4th 1409, 1416.) The burden is on the defendant "to present clear and convincing evidence the ends of justice would be served by permitting a change of plea to not guilty." (People v. Shaw (1998) 64 Cal.App.4th 492, 496; accord Breslin, at pp.1415-1416.)
"Postplea apprehension (buyer's remorse) regarding the anticipated sentence, even if it occurs well before sentencing, is not sufficient to compel the exercise of judicial discretion to permit withdrawal of the plea of guilty." (People v. Knight (1987) 194 Cal.App.3d 337, 344; see also People v. Archer (2014) 230 Cal.App.4th 693, 702 ["The defendant may not withdraw a plea because the defendant has changed his or her mind."].)
In addition, pleas resulting from a bargain " ' "should not be set aside lightly and finality of proceedings should be encouraged." ' " (People v. Archer, supra, 230 Cal.App.4th at p. 702.) The withdrawal of a guilty or no contest plea is subject to the trial court's discretion and " 'is final unless the defendant can show a clear abuse of that discretion.' " (Ibid.) A reviewing court must adopt a trial court's factual findings if supported by substantial evidence. (Ibid.)
B. Analysis
We conclude substantial evidence supports the trial court's determination that appellant's judgment was not impaired at the time he entered his no contest plea.
People v. Ravaux (2006) 142 Cal.App.4th 914 (Ravaux) is instructive. There, the defendant, Ravaux, claimed he was suffering from medical problems that resulted in an involuntary plea. (Id. at p. 917.) The Court of Appeal held the trial court did not abuse its discretion in denying the motion (id. at p. 916) because Ravaux "indicated numerous times that he understood the consequences of the guilty plea and the rights he was waiving." (Id. at p. 918.) Ravaux had completed the plea form attesting he understood the rights he was waiving, and confirmed it again in court. (Ibid.) At no time "did his medical condition or demeanor indicate to his attorney or the court that he was intoxicated or confused to the point where his judgment was impaired." (Ibid.) Ravaux's statements made in the motion to withdraw the plea "were also at odds with what the trial judge, who presided over both hearings, recalled about the demeanor and performance of Ravaux at the plea hearing." (Ibid.)
The same is true here. During pretrial proceedings the trial court observed appellant at a time when his dosage of Zoloft was 50 milligrams (when appellant entered his plea) and again when it was 200 milligrams (when the court denied the motion to withdraw the plea). Based on appellant's conduct in these instances, the court made several findings supporting the conclusion appellant entered the plea voluntarily. Like Ravaux, appellant was "apprised of his rights, informed of the consequences of a guilty plea, and advised by counsel." (Ravaux, supra, 142 Cal.App.4th at p. 918.)
Noting appellant's significant criminal exposure based on the charges filed against him, the trial court found he made a "knowing, intelligent, and voluntary" decision to plead no contest and accept a determinate prison term. The court found appellant entered each of his pleas voluntarily and that he did not require assistance from counsel to understand the court's questions. Also like Ravaux, at no time during the proceeding did appellant's demeanor indicate to the court that he was confused to the point that his judgment was impaired. (Ravaux, supra, 142 Cal.App.4th at p. 918.) During the motion to withdraw the plea, appellant spoke to the court at length. The court found, "Mr. Moore, your comments are clear and coherent, and this is exactly how you were" on the day the plea was entered.
In support of his contention that his plea was involuntary at the time of his plea, appellant relies on the change to his prescribed medication. But the notes from his treating physician showed no change in his mental abilities after his Zoloft prescription was increased. At dosages of both 50 milligrams and 200 milligrams, appellant's treating physician described appellant's thoughts as coherent, linear, and free of delusions. On this record, the court rationally could conclude that appellant's effort to withdraw his plea was nothing more than a case of "buyer's remorse." (See People v. Hunt (1985) 174 Cal.App.3d 95, 104 [trial court did not abuse its discretion in finding defendant acted out of buyer's remorse rather than any mistake, ignorance or overbearance of his free will].)
The court found that the reports from the physician did not show appellant's mental health disorder affected his judgment at the time he entered his plea, and its own observations of appellant supported that finding. In appellant's comments to the court, he professed his innocence but did not mention the change in his medication or any effect it had on his decisionmaking. On these facts the court was within its discretion to find that appellant failed to bear his burden of showing good cause for a change of plea. (See People v. Fairbank (1997) 16 Cal.4th 1223, 1253-1254 [defendant failed to produce clear and convincing evidence that he entered his plea unknowingly where his treating physician testified that his thinking was not disordered or confused and defendant's claim of intoxication contradicted the trial court's own observations of defendant].)
Widening the aperture to take into account the totality of the circumstances, we agree with the trial court that this not a case in which "the ends of justice would be served by permitting a change of plea to not guilty." (People v. Shaw, supra, 64 Cal.App.4th at p. 496.) The evidence against appellant was strong—from the DNA evidence, to his comments to both victims about learning to like forcible sodomy during his time in prison, to the zip-ties and lubricant found in his car. It is also appropriate to take into account, as the trial court did, that the victims of these crimes "consider the 20 year agreement to be one that appropriately punishes the defendant for the crimes he committed against them, yet spares them from having to relive these terrible events through testifying at trial in front of a jury."
III. DISPOSITION
The denial of appellant's motion to withdraw his plea is affirmed.
/s/_________
STREETER, J. We concur: /s/_________
POLLAK, P. J. /s/_________
BROWN, J.