Opinion
F077582
05-19-2020
THE PEOPLE, Plaintiff and Respondent, v. CORY JOE PEARSON, Defendant and Appellant.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Michael A. Canzoneri, and Clifford E. Zall, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF167900A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John S. Somers, Judge. Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Michael A. Canzoneri, and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.
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Cory Joe Pearson alleges his motion to withdraw a plea in a criminal action was erroneously denied. In exchange for a stipulated sentence of 20 years in prison and the dismissal of numerous charges, Pearson pleaded no contest to one count of assault with a firearm and admitted the truth of certain enhancement allegations. He later moved to withdraw the plea, alleging it was induced by (1) threats of his family members being prosecuted if he rejected the deal and (2) defense counsel's erroneous calculation of his maximum penalty exposure. His attorney believed he faced an aggregate prison term of 81 years, which basically meant a life sentence for the then 34-year-old Pearson.
The trial court found the alleged threats were never made. Defense counsel did miscalculate the potential aggregate sentence, which the trial court found to be 58 years. However, the trial court determined the error was not a motivating factor in Pearson's decision to plead out of the case. In other words, Pearson did not satisfy his burden of showing he would not have accepted a 20-year deal had he known the potential consequence of losing at trial was a prison sentence of 58 years instead of 81 years.
We previously considered Pearson's arguments and affirmed the judgment in full. (People v. Pearson (Sept. 12, 2019, F077582) [nonpub. opn.].) Pearson petitioned the California Supreme Court for review. While the petition was pending, he requested permission to raise a new issue. The request was granted and the case was transferred back to this court with directions to vacate the prior opinion and "reconsider the cause in light of Senate Bill No. 136 (Stats. 2019, ch. 590)."
As a result of Senate Bill. No. 136 (2019-2020 Reg. Sess.) (Senate Bill No. 136), most prior prison terms no longer qualify for the one-year enhancement provided for in Penal Code section 667.5, subdivision (b). Pearson's 20-year sentence was calculated using two enhancements imposed under the former version of the statute. The People concede Senate Bill No. 136 applies retroactively and affords Pearson relief in this case. We accept the concession and will modify the judgment by striking the prior prison term enhancements, thereby reducing the aggregate sentence to 18 years. We affirm the judgment as modified.
FACTUAL AND PROCEDURAL HISTORY
Pearson allegedly committed a series of crimes during a two-week period in 2017. He reportedly shot his girlfriend (victim 1) in the leg with a handgun, led sheriff's deputies on a high-speed chase while operating a stolen motorcycle, and fired a bullet through the windshield of a moving car. On September 11, 2017, at a prepreliminary hearing, Pearson declined an "offer of a plea for 19 years in state prison." (Capitalization omitted.)
On November 3, 2017, a preliminary hearing was conducted. The People elicited testimony from eight witnesses: the mother of victim 1 and seven law enforcement officers who had investigated the crimes. The mother's testimony indicated victim 1 had identified Pearson as the person who shot her in the leg on March 21, 2017. This evidence was admitted under the excited utterance exception to the hearsay rule and was corroborated by the testimony of a sheriff's deputy who interviewed the mother on the day of the shooting.
A sheriff's deputy who had later interviewed victim 1 testified she denied knowing who shot her. However, victim 1 disclosed that she and Pearson had gotten into an argument before the shooting occurred. She further admitted to having heard Pearson's voice immediately prior to sustaining the gunshot wound.
The second shooting involved victim 1 and her cousin (victim 2). In the early morning hours of April 4, 2017, while victim 2 was giving victim 1 a ride in his car, someone fired a bullet through victim 2's windshield. Victim 2 lost control of the vehicle and crashed. Shortly thereafter, victim 2 heard a male voice "yelling at [victim 1] to get over here or get in." Victim 1 "got into the other vehicle that was there and it left." Police located victim 1 a few hours later, with Pearson, at a motel.
Police testified victims 1 and 2 were evasive and reluctant to discuss the incident. According to the testimony, victim 2 seemed to know who shot at them but was afraid to implicate the man. However, there was a point when victim 2 nodded affirmatively after being shown a picture of Pearson. Although victim 1 denied knowing what had happened, she admitted to leaving the scene of the accident with Pearson.
On November 7, 2017, Pearson was charged by information with three counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2); counts 1, 6 & 7); willful infliction of corporal injury upon a person with whom he had a dating relationship (§ 273.5, subd. (a); count 2); two counts of unlawful firearm possession (§ 29800, subd. (a)(1); counts 3 & 8); fleeing or attempting to elude a pursuing peace officer (Veh. Code, § 2800.2; count 4); and vehicle taking/unlawful driving (id., § 10851, subd., (a); count 5).
Unless otherwise specified, all undesignated statutory references are to the Penal Code.
Counts 1, 2, 6, and 7 included firearm enhancement allegations (§ 12022.5, subd. (a)). Counts 1 and 2 included allegations of personal infliction of great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). Pearson was further alleged to have suffered a prior strike and serious felony conviction (§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d)) and to have served six prior prison terms.
On January 25, 2018, while represented by appointed counsel, Fred Gagliardini, Pearson entered into the subject plea agreement. In addition to the terms previously discussed, the agreement required Pearson to admit his prior strike and serve at least 85 percent of the stipulated 20-year sentence. The trial court asked Pearson if anyone had threatened him or promised anything in exchange for his plea beyond the recited terms of the agreement, and he answered, "Nope." The response was consistent with his attestations on the written plea form.
Approximately one month later, the Christopher R. Martens Law Corporation substituted into the case as retained counsel in place of attorney Gagliardini. Pearson subsequently filed a motion to withdraw his plea. In a supporting declaration, he alleged Gagliardini had told him the "maximum exposure" on his charges was 81 years and he "would never get out of prison" if he rejected the People's offer. Gagliardini was further alleged to have threatened that Pearson's mother, "and potentially other family members, would be arrested on felony charges because they communicated with [victim 1]." Pearson claimed to have falsely denied being threatened and/or pressured to enter into the plea agreement because he was "terrified" of what might happen to his family if he told the truth.
When the motion was heard, Pearson's mother testified to having attended Pearson's plea hearing and speaking with Gagliardini shortly before the plea was entered. Gagliardini allegedly told her "that if [Pearson] did not take the deal, then [she] would be arrested for witness intimidation and that by the time that [she] got through court[,] [Pearson would be charged with the same offense and] that it wouldn't matter if [she] was innocent or not ...." Pearson's mother admitted she had been in contact with victim 1 but denied knowing there was a protective order in place prohibiting anyone from communicating with victim 1 on Pearson's behalf.
Gagliardini testified for the People. He denied threatening Pearson or his mother, explaining the circumstances as follows:
"I had been telling the family for months and months that if they wanted to accept text messages and e-mails from the victim, that's one thing. 'Do that all you want and give it to me, but do not engage in trying to talk to her and communicate with her about what her testimony should be, could be, whether she should take the Fifth. If you start doing that, that could be perceived as dissuading a witness and you could go to jail for that, and it's a serious crime. It's a strike.' So if the mom perceived that as a threat, that's her perception."
Gagliardini admitted telling Pearson he faced up to 81 years in prison if found guilty on all eight counts. His calculations assumed Pearson would be punished for seven prior prison terms, but in reality only six had been alleged. Gagliardini also assumed the time imposed for any enhancements would be doubled because of Pearson's prior strike. For example, although the upper term for a section 12022.5 firearm enhancement is 10 years, he treated the enhancement as potentially adding 20 years to Pearson's sentence.
Pearson's retained counsel argued the maximum exposure was between 44 years eight months and 50 years eight months, depending on whether punishment for some offenses was stayed under section 654. The People argued the correct number was 71 years eight months. The trial court found it was 58 years, with eligibility for conduct credit limited to 15 percent of the total sentence because of the violent felonies (see §§ 667.5, subd. (c)(8), 2933.1).
The trial court denied Pearson's motion to withdraw the plea, finding no threats were conveyed to him or his family members. The court also found Gagliardini's miscalculation did not materially affect Pearson's decision to plead out of the case—even if the maximum exposure was as low as 50 years, as retained counsel had argued. Having to serve 85 percent of a 50-year prison term meant Pearson would be approximately 77 years old at the earliest opportunity for release. Among other factors, the trial court considered Gagliardini's uncontroverted opinion that the People's evidence "was significantly bad" for Pearson and his chances of success at trial were low.
On May 30, 2018, Pearson was sentenced in accordance with the plea agreement. The stipulated 20-year term was calculated using the upper term of four years for assault with a firearm (§ 245, subd. (a)(1)), doubled to eight years for the prior strike, plus the upper term of 10 years for the firearm enhancement (§ 12022.5, subd. (a)) and two years for the prison priors under former subdivision (b) of section 667.5. On the date of sentencing, Pearson obtained a certificate of probable cause to appeal the judgment.
DISCUSSION
I. Motion to Withdraw Plea
"'Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.'" (People v. Weaver (2004) 118 Cal.App.4th 131, 146.) The withdrawal of a guilty or no contest plea requires a showing of good cause, which must be demonstrated by clear and convincing evidence. (§ 1018; People v. Patterson (2017) 2 Cal.5th 885, 894.) "'Good cause' means mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free judgment." (People v. Ravaux (2006) 142 Cal.App.4th 914, 917.) "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, 1416; accord, In re Alvernaz (1992) 2 Cal.4th 924, 934 [where deficient representation is alleged, defendant must show "a reasonable probability that, but for counsel's incompetence, [he/she] would not have pleaded guilty and would have insisted on proceeding to trial"].)
"A decision to deny a motion to withdraw a guilty plea '"rests in the sound discretion of the trial court"' and is final unless the defendant can show a clear abuse of that discretion. [Citations.] Moreover, a reviewing court must adopt the trial court's factual findings if substantial evidence supports them." (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) In determining the question of prejudice, an appellate court "may consider the probable outcome of any trial, to the extent that may be discerned." (In re Resendiz (2001) 25 Cal.4th 230, 254, partially overruled on other grounds in Padilla v. Kentucky (2010) 559 U.S. 356, 370.)
With regard to the alleged threats, the trial court evaluated the conflicting testimony of Gagliardini, Pearson, and Pearson's mother. The testimony of a single witness may alone constitute substantial evidence (Evid. Code, § 411), and the trial court believed Gagliardini's version of the facts. "We neither reweigh the evidence nor reevaluate the credibility of witnesses." (People v. Jennings (2010) 50 Cal.4th 616, 638.) Gagliardini's testimony was corroborated by the written plea form and Pearson's initial denial of any coercion at the January 2018 plea hearing. Therefore, substantial evidence supports the trial court's finding "that there was not a threat made which overbore [defendant]'s freewill and caused him to enter a plea of no contest to the charges when he otherwise would not have done so."
Gagliardini's representation was deficient to the extent he miscalculated the maximum penalty for all eight counts. However, a defendant's "assertion he would not have pled guilty if given competent advice 'must be corroborated independently by objective evidence.'" (In re Resendiz, supra, 25 Cal.4th at p. 253, quoting In re Alvernaz, supra, 2 Cal.4th at p. 938.) Pearson points to the fact he initially rejected a 19-year deal and waited to accept the revised offer of 20 years until just before trial was about to commence. He argues "[t]he only reasonable inference" is he entered into the plea bargain because of Gagliardini's actual and alleged misrepresentations. We disagree.
An alternative explanation is Pearson declined the offer of 19 years because he had not yet gauged the strength of the People's case and did not know if he would be held to answer to all charges asserted in the original complaint. He rejected the offer prior to the preliminary hearing and before the criminal information was filed. As for his delay in accepting the second offer, the record strongly implies Pearson had hoped victim 1 would not testify against him and believed her lack of cooperation would damage the People's case. Gagliardini recounted how he had explained to Pearson, prior to Pearson accepting the 20-year deal, why he believed the People's evidence was such that a jury would convict him "without [victim 1's] testimony at all."
Gagliardini's opinion regarding the strength of the People's case is supported by the preliminary hearing testimony. Pearson fails to identify any countervailing evidence. Furthermore, as noted in the trial court's ruling, "Pearson, himself, did not, in his declaration, state that Mr. Gagliardini's advisal or the difference between that and the lower calculations was the motivating factor for him entering his plea," and he made no such assertions at the motion hearing. Failure to allege such prejudice in the trial court undermines his appellate claim of ineffective assistance of counsel. (See Hill v. Lockhart (1985) 474 U.S. 52, 60.)
Pearson's reliance on People v. Johnson (1995) 36 Cal.App.4th 1351 is unconvincing. In Johnson, the appellant had accepted a 20-year plea bargain in reliance on his attorney's calculation that his maximum exposure was 38.8 years. (Id. at p. 1354.) The correct number was 27 years. "The 11-year error in [defense counsel's] calculation led appellant to believe that, by accepting the plea bargain, he was shortening his potential sentence by some 18 years when, in fact, he was saving 7 years at best." (Id. at p. 1357.) Stated another way, the deal required him to serve 74 percent of the maximum sentence, but he mistakenly believed he was receiving the benefit of only serving approximately 52 percent of the maximum sentence.
The appellate court in Johnson observed "defendant believed he may have cut his sentence almost by half, from a potential 38 years to 20, which under any circumstances would be a powerful inducement to plead." (People v. Johnson, supra, 36 Cal.App.4th at p. 1358, italics added.) Pearson received an even better deal. The stipulated sentence of 20 years shortened his potential sentence by approximately 38 years and required him to serve less than 35 percent of the maximum possible sentence. Given the apparent strength of the People's case and the other reasons we have discussed, it is not reasonably probable Pearson would have rejected the People's offer had Gagliardini accurately calculated the maximum sentence.
II. Senate Bill No. 136
The remaining issue concerns Senate Bill No. 136. Effective January 1, 2020, the one-year enhancement provided for in section 667.5, subdivision (b) is inapplicable to all prior prison terms except those served for a sexually violent offense within the meaning of Welfare and Institutions Code section 6600, subdivision (b). The parties contend, and we agree, Senate Bill No. 136 applies retroactively to cases not yet final on appeal. (People v. Jennings (2019) 42 Cal.App.5th 664, 681-682; People v. Lopez (2019) 42 Cal.App.5th 337, 341-342.)
Because Pearson's prior prison terms were not based on a sexually violent offense, he asks us "to remand his case to the trial court with directions to provide [him] with an opportunity to withdraw his plea or, in the alternative, to strike the section 667.5, subdivision (b), enhancements." Pearson cites no authority suggesting the relief available under Senate Bill No. 136 entitles him to withdraw his plea. The People impliedly agree the section 667.5 enhancements should be stricken but further contend the matter should be remanded so the trial court can "restructure [Pearson's] sentence to take into consideration the fact that the prison priors that were imposed are no longer valid."
The People cite to People v. Jennings, supra, 42 Cal.App.5th 664, but the defendant in Jennings had not been sentenced to the upper terms for his various crimes. (Id. at pp. 668-669.) Pearson received the upper term for assault with a firearm and the upper term for the firearm enhancement, which accounted for 18 years of the 20-year sentence, with the remainder being based on the two prison priors. Since the trial court is incapable of sentencing Pearson to an aggregate term in excess of 18 years, it is unnecessary to remand the matter for further proceedings. (See People v. Lopez, supra, 42 Cal.App.5th at p. 342 ["Because the trial court imposed the maximum possible sentence, there is no need for the court to ... exercise its sentencing discretion"].) Therefore, we will modify the judgment by striking the prior prison term enhancements. (Ibid.)
DISPOSITION
The judgment is modified to reflect that the prior prison term enhancements imposed under former subdivision (b) of section 667.5 are stricken. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modification and forward a certified copy to the Department of Corrections and Rehabilitation.
PEÑA, J. WE CONCUR: FRANSON, Acting P.J. DESANTOS, J.