Opinion
F080770
06-25-2021
THE PEOPLE, Plaintiff and Respondent, v. RIGOBERTO ALEMAN-RAMIREZ, Defendant and Appellant.
J. Edward Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. No. 1478832, Linda A. McFadden and Joseph R. Distaso, Judges.
Judge McFadden presided over the plea hearings, motion to withdraw plea, and sentencing hearing; Judge Distaso presided over the motion to revoke probation, the competency hearing, and the violation of probation hearing.
J. Edward Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
Appellant and defendant Rigoberto Aleman-Ramirez pleaded no contest to child endangerment, he was placed on probation, and he was ordered to serve a jail term in 2014. A few hours after being released from jail, he committed a vehicular homicide when he was driving while intoxicated. He was later convicted of second degree murder and sentenced to 15 years to life. The court found he violated probation in the child endangerment case and imposed a concurrent term.
Defendant has filed this appeal from the child endangerment case. His appellate counsel has filed a brief that summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The parties stipulated to the factual basis for defendant's pleas in case Nos. 1478832 and 1479353
Case No. 1478832
On January 2, 2014, defendant was driving a car while smoking a controlled substance in a pipe. Defendant's 10-year-old nephew was in the passenger seat. Defendant passed out, and the car stalled in the roadway. Defendant and the child were found by emergency services personnel, who responded to the scene.
On September 29, 2014, a felony complaint was filed in the Superior Court of Stanislaus County case No. 1478832, charging defendant with count I, felony child endangerment likely to cause great bodily injury or death (Pen. Code, § 273, subd. (a)); count II, misdemeanor driving under the influence of a controlled substance (Veh. Code, § 23152, subd. (e)); count III, misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)); count IV, misdemeanor driving on a suspended license (Veh. Code, § 14601.1, subd. (a)); and count V, misdemeanor possession of drug paraphernalia, the glass pipe (Health & Saf. Code, § 11364.1, subd. (a)).
All further statutory citations are to the Penal Code unless otherwise indicated.
Case No. 1479353
On October 1, 2014, defendant allowed a police officer to search him, and he was found in possession of a pipe that contained methamphetamine.
Plea and sentencing hearing
On October 14, 2014, the court held a hearing on defendant's plea agreement in two cases. An interpreter assisted defendant.
The court stated that in case No. 1479353, defendant would plead to count I, possession of methamphetamine, the other charge would be dismissed, and he would be placed on probation subject to serving 90 days in jail. In case No. 1478832, he would plead to count I, child endangerment, and count II, driving under the influence, the other charges would be dismissed, and he would be placed on probation with a concurrent jail term of 90 days. Defendant said he understood the terms of the plea agreement.6)
The court asked defendant if he had enough time to talk with his attorney. Defendant replied, “I don't have the number to contact you.” The court repeated the question, and defendant said he did not understand. The interpreter advised the court there was some confusion about who was asking the question. The court stated it would continue the case to later that day, so defendant had more time to speak with his attorney.
When the hearing resumed, the court asked defendant if he had enough time to speak with his attorney. Defendant said no. The court asked if he needed more time, and defendant again said no. Defense counsel asked defendant if he was okay and why he was holding his sides. Defendant did not reply. Counsel asked the court to continue the matter until the next day. The court asked defendant if he wanted more time to think about it, and defendant said yes. The court continued the plea hearing to the next day and asked the jail's medical personnel to check defendant and make sure he was okay.
As will be explained below, defendant filed a motion in 2019 to withdraw his child endangerment plea based on his conduct at the October 14, 2014, hearing.
On October 15, 2014, the court again called defendant's case, and asked if he had enough time to talk with his attorney. Defendant said yes. The court asked defense counsel if she had spoken with defendant and if he was feeling better. Counsel said yes. The court again recited the terms of the plea agreements for both cases, and asked defendant if he understood and agreed. Defendant said yes.
The court advised defendant of his constitutional rights, and defendant said he understood and waived his rights. The prosecutor stated the factual basis for the pleas in both cases.
Thereafter, defendant pleaded no contest to count I, child endangerment, and count II, misdemeanor driving under the influence, as alleged in case No. 1478832. In case No. 1479353, defendant pleaded no contest to count I, felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). The court granted the prosecution's motion to dismiss the remaining charges in the two cases.
Defendant waived time and the court conducted the sentencing hearing on the same day. In case No. 1478832, the court placed defendant on probation for four years with 90 days in jail, and in case No. 1479353, he was placed on probation for three years with a concurrent jail term of 90 days, subject to various terms and conditions. Defendant said he understood.
As to each case, the court imposed a $300 restitution fine (§ 1202.4, subd. (b)) and suspended the probation revocation fine in the same amount (§ 1202.44); and also imposed a $40 court security fee (§ 1465.8) and a $30 criminal conviction assessment (Gov. Code, § 70373).
In case No. 1478832, the court also imposed a general fine of $1, 600, and a $4 air emergency fee. In case No. 1479353, the court imposed a laboratory fee of $135, a drug education fee of $150, and an AIDS program fee of $70.
The court advised defendant that he could be charged with murder if he continued to drive under the influence of drugs and/or alcohol and someone was killed. Defendant said he understood. There is no indication that defendant engaged in any unusual conduct during this hearing, and the court and the parties did not make any comments about his behavior.
Vehicular homicide
On October 19, 2014, four days after entering his pleas and apparently as a result of being released early from his jail sentence, defendant was driving at a high rate of speed in Modesto, failed to stop at a stop sign, hit another vehicle, and killed the driver.
In case No. 1479910, defendant was charged with murder (§ 187, subd. (a)); gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)); and driving with a suspended license (Veh. Code, § 12500, subd. (a)). He was subsequently convicted of these charges.
On March 7, 2018, the district attorney filed a motion to revoke defendant's probation in the child endangerment case because he failed to obey all laws based on the vehicular homicide charges in case No. 1479910.
Competency proceedings
Also, on March 7, 2018, the court granted the motion to revoke probation, then declared a doubt about defendant's competency and suspended proceedings in the probation revocation case. On August 9, 2018, the court found defendant was competent and reinstated criminal proceedings.
MOTION TO WITHDRAW PLEA IN CHILD ENDANGERMENT CASE
On May 6, 2019, defendant filed a motion pursuant to section 1018 to withdraw his child endangerment plea in case No. 147832, and asserted he was incompetent at the time of his plea in 2014. The prosecution filed opposition. In response to the prosecution's procedural objections, defendant also filed a writ of error coram nobis and a petition for writ of habeas corpus on the same theory.
Evidentiary hearing
On May 20, 2019, the court conducted an evidentiary hearing on defendant's motion and writs to withdraw his child endangerment plea.
At the hearing, Dr. Robert Perez, a clinical neuropsychologist, testified he examined defendant for the first time in March 2015 when he was in jail, at the request of the defense. He determined defendant was grossly psychotic; extremely ill; his thought processes were grossly disrupted; he had auditory hallucinations that made him agitated and he could not control; he not aware of his status in the criminal justice system; he was not orientated as to date; and he had no ability to think, reason, or concentrate. Defendant's IQ was 59, which was severely abnormal and put him in the range of significant intellectual impairment.
Dr. Perez testified to his opinion that defendant had the same psychotic problems when he entered his plea to child endangerment in October 2014, because he suffered from continuous psychosis. Dr. Perez reviewed the transcript for the first plea hearing on October 14, 2014, and testified defendant's responses and conduct were consistent with his psychotic problems, his ability to think and reason would have been adversely affected, and he would not have understood the purpose of the hearing. When defendant entered his plea the following day, he likely responded to rote questioning.
On cross-examination, Dr. Perez conceded defendant's conduct at the first plea hearing was also consistent with being under the influence of methamphetamine. On October 20, 2014, after the vehicular homicide, jail medical personnel evaluated defendant. They gave him a mental status examination; he was fully oriented to time and place, his speech was clear, and he denied any mental health history. On October 20, 2014, defendant was again seen by jail medical personnel for a follow-up check and he was alert. On December 29, 2014, defendant was seen by the mental health staff, and they did not find he was showing any symptoms of active psychosis. Dr. Perez conceded that the first time anyone saw defendant display active psychotic symptoms in jail was in January 2015.
Eileen Burkey, a mental health clinician, testified that defendant was evaluated by a nurse on October 16, 2014, the day after his plea to child endangerment. The nurse noticed signs of depression and recommended that the mental health unit should see him; the nurse did not report any signs of psychosis or delusions.
Denial of motion to withdraw plea
On May 28, 2019, the court denied defendant's motion and pending writs to withdraw his child endangerment plea. The court stated it had conducted the plea hearings, and recalled that at the first hearing on October 14, 2014, defendant seemed uncertain and confused, and his conduct in grabbing his sides may have been an indication of physical pain. The court recalled that on October 15, 2014, defendant had acted normally and competently when he entered his plea; he stated he had time to talk with his attorney about the plea; there was no indication he was having any medical or psychological issues; and counsel did not express any concern about his mental status at that time. The court stated it would not have taken defendant's plea if he had displayed any signs of mental illness or distress. The court found defendant was competent and understood what he was doing when he entered his plea.
Sentencing
On October 24, 2019, the court found defendant violated probation in the child endangerment case.
On December 12, 2019, the court conducted the sentencing hearing in defendant's pending cases.
In case No. 1479910, the vehicular homicide case, the court sentenced defendant to 15 years to life for second degree murder (§ 187, subd. (a)), and stayed the terms imposed for count II, gross vehicular manslaughter while intoxicated, and count III, misdemeanor driving without a license, pursuant to section 654. The court imposed a restitution fine of $300 (§ 1202.4, subd. (b)), suspended the parole revocation fine of $300 (§ 1202.45), and ordered full victim restitution in an amount to be determined.
In case No. 1478832, the court sentenced defendant to the lower term of two years for child endangerment, to run concurrently to the term imposed for second degree murder, and stated the fines and fees previously imposed in that case would be enforced.
On February 10, 2020, defendant, in pro. per., filed a timely notice of appeal in the child endangerment case, No. 1478832. Defendant requested a certificate of probable cause on the denial of his motion to withdraw his child endangerment plea. The trial court granted the request.
Aside from the People's procedural objections, the court did not abuse its discretion when it denied his various motions to withdraw his plea and its factual findings are supported by substantial evidence, that he was competent at the plea hearing, he did not engage in any inappropriate or bizarre behavior indicating otherwise, and the court would not have accepted the plea if there was any evidence that he was not competent at that time. While defendant introduced expert testimony about his mental status in 2015 and afterward, such evidence did not address his mental condition at the time he entered his plea. After the vehicular homicide charges were filed, he was subsequently found not competent, but this evidence does not amount to clear and convincing proof that defendant was experiencing psychotic symptoms or was incompetent at the time he entered his plea. At the resumed plea hearing on October 15, 2014, defense counsel advised the court that she consulted with him, he was ready to enter his plea, and counsel did not express any reservations about his mental health. Defendant's demeanor and statements during the plea colloquy did not raise any concerns for the court or his attorney. Defendant was examined the day after the plea, and the jail nurse referred him for mental health treatment because he showed signs of depression, and not because he was psychotic or displaying mental health problems. Defendant's mental health subsequently deteriorated after the vehicular homicide, but that outcome, while relevant, does not indicate he was incompetent when he pleaded guilty to child endangerment under the clear and convincing standard of proof. We note that “[a]t any time before judgment, or within six months after an order granting probation if entry of judgment is suspended, a trial court may permit a defendant to withdraw a guilty plea for ‘good cause shown.' (§ 1018.) ‘Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea' under section 1018 [citation] ….” (People v. Patterson (2017) 2 Cal.5th 885, 894.) In response to the People's procedural objections to defendant's motion to withdraw, defendant filed a petition for writ of error coram nobis. “[A] nonstatutory motion to vacate [a plea] has long been held to be the legal equivalent of a petition for a writ of error coram nobis [citations], ” that usually involves newly discovered evidence or facts “that would have prevented rendition of the judgment.” (People v. Kim (2009) 45 Cal.4th 1078, 1096, 1103.) For both the statutory and nonstatutory motions, the defendant has the burden to show good cause by clear and convincing evidence, and denial of the motion is reviewed for an abuse of discretion. (People v. Patterson, at p. 894; People v. Kim, at pp. 1095-1096) The reviewing court must adopt the trial court's factual findings if supported by substantial evidence. (People v. Breslin (2012) 205 Cal.App.4th 1409, 1416.)
DISCUSSION
As noted above, defendant's counsel has filed a Wende brief with this court. The brief also includes the declaration of appellate counsel indicating that defendant was advised he could file his own brief with this court. By letter on December 9, 2020, we invited defendant to submit additional briefing. To date, he has not done so.
After independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.
[*]Before Hill, P.J., Levy, J. and Detjen, J.