Opinion
E051476
03-01-2012
THE PEOPLE, Plaintiff and Respondent, v. MELVIN TIMOTHY NELSON, Defendant and Appellant.
Mark Anchor Albert, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
(Super.Ct.No. FBV900152)
OPINION
APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie, Judge. Conditionally affirmed as modified.
Mark Anchor Albert, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
This is an appeal by Melvin Timothy Nelson, defendant and appellant (hereafter defendant), from the judgment entered after the trial court denied his motion to withdraw his guilty plea to one felony count of grand theft in violation of Penal Code section 487, subdivision (a), in return for which the prosecutor dismissed a second felony count of vandalism and agreed defendant would be placed on felony probation a condition of which could include that he serve no more than 60 days in county jail. After denying defendant's motion to withdraw his guilty plea, the trial court placed defendant on supervised probation for 12 months but did not impose any additional time in custody. Defendant obtained a certificate of probable cause on September 10, 2010.
Defendant raises various claims in this appeal, including the ineffective assistance of counsel claim he asserted in the trial court as the basis for his motion to withdraw his guilty plea. In addition, defendant contends he is entitled to the benefit of the amendment to Penal Code section 487, subdivision (a) which changes the definition of grand theft by increasing the monetary value from more than $400 to more than $950. Defendant also contends that his guilty plea is invalid because the police reports the parties stipulated the trial court could consider in order to find a factual basis for the plea do not include facts that establish the value of the stolen items. Finally, defendant contends the trial court should have exercised authority under Penal Code section 17, subdivision (b) to reduce his theft conviction from a felony to a misdemeanor.
We conclude as we discuss below that defendant was afforded the effective assistance of counsel and therefore the trial court's denial of defendant's motion to withdraw his guilty plea was not an abuse of discretion. The Attorney General concedes the amended definition of grand theft applies to defendant. We conclude the concession is appropriate. For reasons we explain in more detail below, we will conditionally reduce defendant's conviction from a felony to a misdemeanor unless within 30 days after issuance of the remittitur the district attorney files an amended felony complaint that charges defendant with grand theft.
FACTUAL AND PROCEDURAL BACKGROUND
Because defendant pled guilty before his preliminary hearing, we take the facts from the report prepared by San Bernardino County Deputy Sheriff Brunson who stopped defendant at around 5:15 a.m. on August 5, 2009, as defendant was driving his Dodge flatbed truck out of a section of national forest located in the Sugarloaf area near Big Bear. That area of the forest is posted as a sensitive area where vehicles and woodcutting are prohibited. Defendant had pieces of cut wood, colloquially referred to as "biscuits," in the bed of his truck. Deputy Brunson had been investigating a noise complaint received around 2:30 a.m. on August 5, 2009, from a resident who heard chainsaws and had seen vehicles enter the restricted forest area. The forest service prohibits woodcutting after dark and on August 4, 2009, the cut-off for use of chainsaws in the forest was 1300 hours due to the high fire danger. Defendant's truck, a 1968 light blue Dodge truck with a flatbed, fit the description the resident provided of one of the vehicles that had entered the forest area each of the past few nights.
Biscuits apparently are pieces or sections that are cut from a larger log or tree and which are later split in order to be used as firewood.
Another deputy stopped a second vehicle driven by Matthew Deason. Deason is not a party to this appeal although he also was charged with and pleaded guilty to grand theft of wood taken from the restricted forest area.
Defendant told Deputy Brunson that earlier he had been cutting firewood but his truck got stuck for several hours, which is why he was coming out of the forest so late. With defendant's permission, a second deputy checked defendant's chainsaw and determined it was warm. Defendant did not respond when the deputy asked him why his chainsaw was still warm. When interviewed after his arrest, defendant acknowledged that he knew the area was a no cutting area. Defendant did not have a valid forest service permit to cut wood. Photographs of the biscuits in the bed of defendant's truck, and of split firewood at defendant's residence, are appended to Deputy Brunson's report.
The District Attorney of San Bernardino County charged defendant with one felony count of grand theft in violation of Penal Code section 487, subdivision (a) and one count of felony vandalism in violation of Penal Code section 594, subdivision (b)(1). On August 19, 2009, after consulting with his attorney, defendant pled guilty to the felony grand theft charge in return for the district attorney's agreement to dismiss count 2 and that defendant would serve no more than 60 days in county jail with credit for time served.
On October 13, 2009, defendant (represented by a new attorney) filed a notice of motion to withdraw his guilty plea. On January 15, 2010, defendant filed his actual moving papers, including supporting points and authorities, in which he claimed, among other things, that he was denied the effective assistance of counsel because his appointed attorney, Mr. Belton, advised him to plead guilty "without giving any thought to whether the value and damage amount to $400 and with no investigation as to the circumstances or the value." In his supporting declaration, defendant stated, in pertinent part, that he met Mr. Belton for the first time in court on August 19, 2009; defendant had not seen the discovery (which apparently consisted of the sheriff's report); after Mr. Belton told him the district attorney's offer, defendant said the five biscuits of wood he had taken from the forest "was not nearly worth $400"; Mr. Belton told defendant that "'trees were cut in the forest, and you had trees in the back of your truck'"; he also told defendant this was the best deal defendant "was ever going to get but that [he] couldn't even get this deal unless [he] took it right then, and that [his] co-defendant was pleading guilty." Defendant also stated that he had a license to cut wood which he obtained last October but did not know had expired in March.
In his declaration, defendant's attorney, John Belton, stated in pertinent part, as follows: "I acknowledge that I did not think about the $400 valuation separating the felonies from the misdemeanors and don't remember discussing this with Mr. Nelson. It was my assumption that there would have been inherent value in the living trees of more than $400 and that, in addition, there would have been damage exceeding that amount for having driven in the forest with his vehicle. I was unaware until my conversation with [defendant's new attorney] that the trees from which the biscuits had been cut were already dead and that the driving which had been done in the forest was on already-existing road, according to [defendant's new attorney]." Mr. Belton also stated that he did not recall defendant "mentioning that he didn't think the five biscuits (i.e., the horizontal slabs of wood cut from the trunks of trees to be split and then used as firewood) he had taken were worth less than $400."
Defendant, Mr. Belton, and various other witnesses testified at the hearing on defendant's motion to withdraw his guilty plea, which took place over four separate days, beginning on March 9 and ending on June 7, 2010. In addition to testifying to the things set out in his declaration, quoted in part above, defendant testified that he told his attorney he did not understand the change of plea form; he lied when he told the court he understood the form and his constitutional rights because he figured he did not have any other choice; his attorney told him to tell the court that he understood and that the attorney would explain it to him later; and he was told it was in his best interest to plead guilty. The trial court denied defendant's motion to withdraw his guilty plea, finding the issue was one of credibility.
At the sentencing hearing on July 21, 2010, the trial court denied defendant's motion to reduce the theft charge from a felony to a misdemeanor. The trial court then withheld pronouncement of judgment and placed defendant on supervised felony probation for a period of 12 months.
DISCUSSION
1.
APPLICATION OF AMENDED SECTION 487
In 2010, the Legislature amended the definition of grand theft set out in Penal Code section 487, subdivision (a) by increasing the value of the "money, labor, or real or personal property taken" to more than $950. (See Stats. 2010, ch. 693, § 1, p. 1.) At the time defendant committed his alleged crime and pled guilty to grand theft, the monetary value of the money, labor, or real or personal property taken had to exceed $400. Defendant contends, and the Attorney General concedes, that the amended version of section 487 applies in this case.
All further statutory references are to the Penal Code unless otherwise indicated.
The Attorney General's concession is appropriate. The Supreme Court held in In re Estrada (1965) 63 Cal.2d 740, that where a statutory amendment "mitigates punishment and there is no saving clause . . . the amendment will operate retroactively so that the lighter punishment is imposed" in all cases not reduced to final judgment as of the amendment's effective date. (Id. at p. 748.) "Of particular relevance, courts have held that amendments, such as the one at issue here, that mitigate punishment by increasing the dollar amount for certain crimes or enhancements, should be applied retroactively, in the absence of a saving clause or other indicia of a contrary legislative intent." (People v. Nasalga (1996) 12 Cal.4th 784, 793, citing In re Kirk (1965) 63 Cal.2d 761, 763.) Because the judgment in this case is not final, the amendment to section 487 increasing the dollar amount for the crime applies retroactively to defendant. Therefore, in order for defendant to have committed grand theft, as defined in section 487, subdivision (a), rather than petty theft as defined in section 488, the value of the wood defendant took from the restricted area of the forest must exceed $950.
Contrary to the parties' apparent understanding, grand theft of anything other than a firearm, can be either a felony or a misdemeanor. (See § 489, subd. (b).)
The sheriff's reports do not establish the value of the wood defendant is charged with having stolen. According to Deputy Brunson's report, defendant admitted to taking four to five loads of wood from that area, but the report does not indicate when defendant took those loads of wood. Even if the report supported an inference that defendant took more than one load of wood during the night of August 4 and early morning of August 5, the value of the wood nevertheless is not established in Deputy Brunson's report. That omission is the basis for defendant's claim that his guilty plea is invalid since the parties stipulated the trial court could take a factual basis for the plea from the sheriff's reports. Similarly, defendant claims he was denied the effective assistance of counsel, in part, because his trial attorney did not investigate whether the value of the wood was more than $400. Defendant raised the ineffective assistance of counsel claim in the context of moving to withdraw his guilty plea. That assertion, if valid, would require us to reverse defendant's conviction and that in turn would render moot all other issues in this appeal. Therefore, we next address defendant's claim that the trial court should have granted his motion to withdraw his guilty plea.
The Attorney General mistakenly asserts defendant admitted to Deputy Brunson that he had taken four to five loads of wood out of that area "on the date in question." Deputy Brunson's handwritten report includes a period after the word area. The quoted phrase "on the date in question" refers to the forest service's 1:00 p.m. cut off for cutting wood: "On the date in question Forest Service had a 1300 cut off time for wood cutting due to the fire danger."
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2.
MOTION TO WITHDRAW HIS GUILTY PLEA
A. Standard of Review
Under section 1018, a trial court may grant a defendant's request to withdraw a guilty plea or plea of no contest "before judgment . . . for a good cause shown . . . ." "Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.]" (People v. Cruz (1974) 12 Cal.3d 562, 566.) We review the trial court's ruling for abuse of discretion and adopt the court's factual findings if those findings are supported by substantial evidence. (People v. Wharton (1991) 53 Cal.3d 522, 585.) Abuse of discretion is found only if the trial court has exercised its discretion in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice. (People v. Shaw (1998) 64 Cal.App.4th 492, 496.)
1. Ineffective Assistance of Counsel
Defendant contends, as he did in the trial court, that he was denied the effective assistance of counsel in connection with his guilty plea because his trial attorney did not investigate whether the value of the wood defendant allegedly stole was worth less than $400. Defendant raises an additional claim of ineffective assistance of counsel with respect to both trial attorneys which we address later because it is raised for the first time on appeal rather than in defendant's motion to withdraw his guilty plea.
"It is well settled that where ineffective assistance of counsel results in the defendant's decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea." (In re Alvernaz (1992) 2 Cal.4th 924, 934.) A claim of ineffective assistance of counsel requires the defendant show both that trial counsel's performance was deficient and as a result of that deficient performance defendant suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668.) In the context of a guilty plea, in order to show ineffective assistance of counsel a defendant has the burden to prove by a preponderance of the evidence: (1) his or her counsel's representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) he or she suffered prejudice from counsel's deficient performance in that "there is a reasonable probability that, but for counsel's errors, he [or she] would not have pleaded guilty and would have insisted on going to trial." (Hill v. Lockhart (1985) 474 U.S. 52, 59, fn. omitted; see also In re Resendiz (2001) 25 Cal.4th 230, 239, 248-254.) "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" (People v. Ledesma (1987) 43 Cal.3d 171, 218, quoting Strickland v. Washington, supra, 466 U.S. at pp. 693-694.)
a. Value of Wood
Assuming without actually deciding that trial counsel should have investigated the value of the wood that is the subject of the grand theft charge, defendant did not suffer any prejudice as a result of that presumed oversight. According to the evidence presented in support of his motion to withdraw his guilty plea, defendant knew at the time he entered his guilty plea that an element of the crime of grand theft is that the value of the stolen property must exceed $400; defendant also claimed the allegedly stolen wood was not worth that much. Specifically, and as previously recounted, defendant stated in his declaration in support of his motion to withdraw his guilty plea that he told Mr. Belton the wood was not worth $400. Defendant also testified at the hearing on that motion that he told Mr. Belton the wood was not worth $400, and defendant knew because he had spoken with another attorney before he signed the change of plea form that the value of the stolen item has to be more than $400 in order for the crime to be grand theft. Defendant's girlfriend of 22 years also testified at the hearing on defendant's motion to withdraw his guilty plea that she knew from talking to an attorney other than Mr. Belton that the difference between misdemeanor and felony grand theft is $400. She also testified that she and defendant told Mr. Belton the wood was not worth $400, but "[h]e really didn't have an answer. The only thing he would ever say was that [defendant] was caught red-handed. He really didn't discuss it."
In short, the evidence is undisputed that defendant knew before he entered his guilty plea that in order for a theft to constitute felony grand theft, the value of the stolen item had to exceed $400. The evidence is equally undisputed that defendant also believed, before he pled guilty, that the value of the wood he was charged with stealing did not exceed $400. Therefore, defendant cannot demonstrate prejudice from his attorney's purported failure to investigate the value of the wood. In other words, defendant has not met his burden to demonstrate there is a reasonable probability that, but for Mr. Belton's failure to investigate the value of the stolen wood, defendant would not have pleaded guilty and instead would have insisted on going to trial. (Hill v. Lockhart, supra, 474 U.S. at p. 59.)
What defendant is really claiming is that Mr. Belton did not listen to defendant's protestations about the value of the wood, and that defendant pled guilty to the felony because he did not really understand what he was doing. This is the issue the trial court expressly rejected when it denied defendant's motion to withdraw his guilty plea. In the trial court's view "this is just a fairly unremarkable credibility question." Defendant claimed that Mr. Belton did not explain anything about the plea to him, that defendant only signed the plea form because Mr. Belton told him to, that defendant could read only at a third grade level, and that Mr. Belton only spent about five minutes total with defendant before he talked defendant into accepting the offer. In denying defendant's motion to withdraw his guilty plea, the trial court found that the plea looked entirely voluntary and, as Mr. Belton testified, if defendant had indicated he did not understand his rights or that he wanted to talk to him, Mr. Belton would have talked to defendant before defendant entered his guilty plea. "That's persuasive to the Court as well. Based on those credibility determinations" the trial court denied defendant's motion to withdraw his guilty plea.
We too reject defendant's effort to cast those credibility issues as ineffective assistance of counsel. Because we are bound by the trial court's resolution of disputed facts, we must conclude the trial court did not abuse its discretion in denying defendant's motion to withdraw his guilty plea. (People v. Wharton, supra, 53 Cal.3d at p. 585.)
b. Claim of Right
Defendant testified during cross-examination by the district attorney at the hearing on his motion to withdraw his guilty plea that he had a permit to cut wood that he believed was valid at the time he cut the wood that is the subject of the grand theft charge in this case. Defendant said he did not know the permit had expired in March 2009 because defendant bought the permit in October 2008 and thought it was valid for a year from the time of purchase. Based on that testimony, defendant asserts in this appeal that Mr. Belton should have advised him on the purported defense based on a claim of right, namely that such a claim negates the specific intent to steal that is required in order to be guilty of theft. Defendant also contends he was denied the effective assistance of counsel by his second attorney, Mr. Jordan, because Mr. Jordan did not consider defendant's claim of right, or absence of intent to steal, when he later conceded that defendant had committed a theft but that the crime was only a misdemeanor.
On appeal, we must presume counsel's conduct fell within the wide range of reasonable professional assistance and accord great deference to counsel's tactical decisions. (People v. Lewis (2001) 25 Cal.4th 610, 674.) If the record sheds no light on the reasons for counsel's action, and the circumstances suggest counsel could have had a valid tactical reason for not acting, an ineffective assistance of counsel claim is more appropriately decided in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
As previously noted, defendant did not raise the claim of right issue in the trial court with respect to either attorney and consequently the record on appeal is silent on this purported issue. We must presume both attorneys had valid reasons for their actions. Several valid reasons occur to us, the most obvious of which is that defendant never told either attorney that he thought he had a valid woodcutting permit. In addition, the sheriff's report states defendant was cutting wood in an area where woodcutting is prohibited, which suggests that even if he actually had a valid permit, defendant nevertheless could not cut wood in the restricted area. Because the record suggests valid reasons for the actions of both attorneys, we must reject defendant's ineffective assistance of counsel claim in this appeal.
Because we conclude defendant did not demonstrate ineffective assistance of counsel in the trial court, we will affirm the trial court's order denying defendant's motion to withdraw his guilty plea. Our conclusion that defendant is entitled to the benefit of the amended version of section 487, subdivision (a) requires us to remand this matter to the trial court and that remand renders moot each of defendant's remaining claims. However, we must briefly discuss the effect of our conclusion that defendant is entitled to the benefit of the amended version of section 487, subdivision (a).
3.
APPROPRIATE DISPOSITION
Several dispositions arguably are appropriate in this case, including a reversal and remand to the trial court for the purpose of allowing the district attorney to amend the felony complaint to allege grand theft under the current version of section 487, subdivision (a), i.e., theft of timber or wood of a value exceeding $950. It occurs to us however that by now defendant has most likely successfully completed his 12 months of probation, and may petition the court to reduce his conviction from a felony to a misdemeanor. (§ 17, subd. (b)(3); see Meyer v. Superior Court (1966) 247 Cal.App.2d 133, 139-140 [crime punishable as felony or misdemeanor, may be reduced from felony to misdemeanor when defendant satisfactorily completes probationary period; this discretionary authority under section 17 is "intended to enable the court to reward a convicted defendant who demonstrates by his conduct that he is rehabilitated"].) Therefore, we will take a pragmatic approach in this case and conditionally reduce defendant's conviction from a felony to a misdemeanor unless within 30 days of issuance of the remittitur, the district attorney files an amended complaint that charges defendant with a violation of section 487, subdivision (a) as currently in effect.
DISPOSITION
The judgment is modified by reducing defendant's grand theft conviction from a felony to a misdemeanor unless the district attorney, within 30 days from the date the remittitur is issued, files an amended felony complaint charging defendant with grand theft under section 487, subdivision (a), in which case the judgment is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MCKINSTER
J.
We concur:
HOLLENHORST
Acting P.J.
RICHLI
J.