From Casetext: Smarter Legal Research

People v. Cohen

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 26, 2012
B232486 (Cal. Ct. App. Jan. 26, 2012)

Opinion

B232486

01-26-2012

THE PEOPLE, Plaintiff and Respondent, v. JUSTIN MARK COHEN, Defendant and Appellant.

Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, James William Bilderback II and Joseph P. Lee, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. SA075744)

APPEAL from a judgment (order) of the Superior Court of Los Angeles County, Kathryn A. Solorzano, Judge. Affirmed.

Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, James William Bilderback II and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

Justin Mark Cohen appeals from the judgment entered following his negotiated plea of no contest to four counts of committing a lewd act upon a child. (Pen. Code, § 288, subd. (a).) He was sentenced to 14 years in prison. He contends that the trial court erred in denying his motion to withdraw his no contest plea. We find his contention to be without merit and affirm.

All further statutory references are to the Penal Code.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of the offenses are not in dispute. It will suffice to observe that on October 26, 2010, appellant, then 72 years old, was charged with two counts of oral copulation or sexual penetration upon a child under the age of 10 (§ 288.7, subd. (b)), nine counts of committing a lewd act upon a child (§ 288, subd. (a)), and one count of continuous sexual abuse upon a child under the age of 14 years (§ 288.5, subd. (a)). It was also alleged that he committed the offenses against more than one victim. (§ 667.61, subds. (b) & (e).) He was booked into custody that day.

On November 15, 2010, the case was called for a preliminary hearing. Appellant was present in court with counsel. The court discussed with appellant a form he had signed in which he waived his rights and agreed to plead no contest to four counts of committing a lewd act upon a child and to receive a prison term of 14 years. The court went over the individual counts with appellant and ascertained that he had discussed them with his lawyer. Appellant indicated that he understood the nature of the charges, his constitutional rights, the consequences of his conviction, and the terms of his proposed sentence. Appellant entered his plea of no contest to the four counts and his counsel joined in the waivers, concurred in the plea, and stipulated to a factual basis as to each count. The court found that appellant understood and voluntarily, knowingly, and intelligently waived his rights and that there was a factual basis for the plea. A sentencing hearing was set for December 20, 2010.

On December 20, appellant appeared and the matter was continued so that the court could review a report on appellant's health. The court advised appellant that he had a right to be sentenced that day and asked if he desired to continue the matter. Appellant said he understood his rights and consented to the continuance. The matter was continued to February 3, 2011.

Appellant filed a motion to withdraw his plea on January 18, 2011.

On February 28, 2011, at the hearing on appellant's motion, appellant called Dr. Marvin Pietruszka as a witness. Dr. Pietruszka, a board certified anatomic clinical pathologist and forensic toxicologist, testified he reviewed appellant's files. He had not met or examined appellant. He determined that while in the county jail, appellant was given Celexa, an antidepressant medication, prior to entering his plea. He was also given an anti-anxiety medication. According to jail records, appellant had suffered anxiety and panic attacks, had difficulty sleeping, and was suicidal. He was diagnosed as having an adjustment disorder. According to Dr. Pietruszka, the side effects of Celexa were impaired judgment, mood swings, impaired thinking, irritability, and confusion, especially in elderly patients such as appellant. In the doctor's opinion, the medication impaired appellant's judgment.

The prosecution called Dr. Joseph Ortego, the supervising psychiatrist for the Twin Towers jail where appellant was housed. He had examined appellant twice between October 27, 2010, and November 6, 2010, for approximately five minutes at each visit. Dr. Ortego had daily contact with all the people treating appellant during that period. According to appellant's treatment team, appellant was feeling anxious and desperate, suffered anxiety attacks, and had trouble sleeping. He had also attempted to hang himself. On October 29, 2010, he was prescribed Celexa. Appellant was discharged from the psychiatric inpatient unit on November 6 and placed in outpatient mental health housing within the jail. From November 6 through at least December 4, appellant was medicated and "in continuous need of psychiatric therapy and psychotropic medication." Dr. Ortego admitted he was not an expert on Celexa. He reviewed the Physicians' Desk Reference, which stated the side effects of the medication were nausea, heartburn, indigestion, anxiety, restlessness, and suicidal ideation. However, Celexa was considered "fairly benign, as far as potential side effects." In his experience, it was "rare" for a patient to suffer any side effects from the medication. Dr. Ortego interviewed appellant when he was taking the medication and determined that he was anxious and not as aware as he should have been. There was no indication appellant suffered any cognitive language or memory impairment and he did not appear confused. In Dr. Ortego's opinion, appellant did not experience any toxicity or side effects from Celexa. Dr. Ortego reviewed appellant's records and confirmed that on November 16, the day after he had entered his plea, appellant had asked for an inhaler for asthma attacks and for nail clippers.

On March 17, 2011, after the conclusion of the testimony, the court stated that it had the opportunity to observe appellant and talk with him when it took his plea and did not observe anything that led it to believe appellant was cognitively impaired. Counsel also joined in the plea. The court then noted that appellant was trying to take care of himself by asking for an inhaler and nail clippers, which demonstrated that he was no longer suicidal and had progressed in treatment. The court denied the motion to withdraw and sentenced appellant to the agreed-upon term of 14 years. Appellant received a certificate of probable cause and filed a notice of appeal.

DISCUSSION

Section 1018 provides in pertinent part that, upon a showing of good cause, the court may allow the withdrawal of a guilty plea of a defendant who appeared with counsel at the time the plea was entered. It also provides: "This section shall be liberally construed to effect these objects and to promote justice." (§ 1018; People v. Cruz (1974) 12 Cal.3d 562, 566.) No contest pleas are treated the same as guilty pleas for this purpose. (§ 1016.) Mistake, ignorance, or any other factor overcoming the exercise of free judgment constitutes "good cause" for withdrawal but must be shown by clear and convincing evidence. (People v. Cruz, supra, at p. 566, People v. Ramirez (2006) 141 Cal.App.4th 1501, 1506.)

A trial court's denial of a motion to withdraw a guilty plea will not be overturned on appeal unless the defendant can show a clear abuse of discretion. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) Moreover, the appellate court must adopt the trial court's factual findings if they are supported by substantial evidence. (Ibid.)

Our review of the record leads us to conclude that substantial evidence supports the trial court's factual determination that appellant's plea was knowing, intelligent, and voluntary. Based on the testimony of the doctor who examined appellant, Celexa did not impair appellant's judgment or thinking. Unlike appellant's expert, the court observed appellant when he entered his plea and concluded that he understood his rights and the consequences of his plea and freely entered into the disposition. The court's determination that appellant's plea was not the product of a side effect of his medication is supported by substantial evidence. The trial court did not abuse its discretion in denying appellant's motion to withdraw his plea of no contest.

DISPOSITION

The judgment (order denying motion to withdraw) is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.


Summaries of

People v. Cohen

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 26, 2012
B232486 (Cal. Ct. App. Jan. 26, 2012)
Case details for

People v. Cohen

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JUSTIN MARK COHEN, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

Date published: Jan 26, 2012

Citations

B232486 (Cal. Ct. App. Jan. 26, 2012)