Opinion
A149606
05-03-2017
THE PEOPLE, Plaintiff and Respondent, v. SAXTON DUNN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR320884)
Appellant Saxton Dunn entered a plea agreement under which he received a far lighter sentence than what he otherwise faced in connection with charges arising out of a stabbing incident. After pleading no contest to a charge against him in accordance with the plea agreement, he later asked to withdraw his plea. The trial court denied the request after hearing testimony from both Dunn and his trial attorney. We conclude that the trial court acted well within its discretion in denying Dunn's request to withdraw his plea, and we therefore affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
On the morning of April 15, 2016, Fairfield police were called to a home where a victim had been stabbed in the leg. The victim told police that a man he had known "for a couple of years from the streets" who went by the name of "Sax" rode up to him on a bicycle, stabbed him in the leg, and then rode away. The victim also reported that he and Sax had recently had a disagreement because the victim had told Sax that he could not stay at his camp and told him to leave multiple times.
Police were told that the stabbing suspect was a black male around 26 or 27 who was riding a bicycle. While police were still with the victim, another officer stopped Dunn as a possible suspect "about a mile" from the scene of the stabbing. Dunn was found with a bicycle, and a box cutter was found in his pants pocket. No blood was observed on the box cutter or on Dunn's hands or clothing.
Police took photos of Dunn and the box cutter and sent the pictures by text message to police who were with the victim. The victim identified Dunn as the person who had stabbed him and said that the box cutter "could be" what Dunn had used.
Dunn was charged by felony complaint in connection with the assault, and two police officers testified at the preliminary hearing about the stabbing and Dunn's arrest. The trial court held Dunn to answer, and an information was filed on May 3, 2016, charging Dunn with assault with a deadly weapon by means likely to produce great bodily harm (Pen. Code, § 245, subd. (a)(1)), with an allegation that Dunn personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). The information further alleged that Dunn had suffered a prior conviction for a serious felony and one prior strike.
Apparently there was first some question whether the victim would be available to testify against Dunn, but at some point it became clear that he would be available because he was in custody on an unrelated matter. Around this time, the parties discussed a plea agreement. According to Dunn, his appointed attorney pressured him to accept a plea deal, telling him that his "defense [was] out the window" after "[t]hey got the guy [his victim]." Dunn claimed his attorney told him he would definitely receive 17 years (as opposed to merely being exposed to that possibility). Dunn pointed out that no blood was found on the box cutter, and he stated his attorney made him feel "like [he] had really no other choice" and "basically thr[ew] out the possibility of [him] winning the case."
Dunn's trial attorney disputed Dunn's version of discussions over the plea deal. According to counsel, he visited Dunn in jail the week after he was arraigned, and Dunn "asked . . . for the deal." The following day, Dunn's attorney went over the plea form with Dunn, and he also discussed the deal with him the day that Dunn entered the plea. Dunn's attorney said he told Dunn he was likely to receive 17 years based on Dunn's prior record and his (the attorney's) experience before the trial judge, but he did not tell Dunn he would definitely receive 17 years.
On May 25, Dunn pleaded no contest under a plea agreement to the count of assault with a deadly weapon, and the remainder of the information was dismissed. The plea deal called for a sentence of no longer than four years in prison, though it was understood that Dunn would receive three years. As part of the plea process, Dunn completed a form listing all the rights he was giving up by entering a plea, the trial court confirmed he understood those rights, and Dunn's attorney stipulated there was a factual basis for the plea based on the transcript of the preliminary hearing. The court found that Dunn knowingly, intelligently, and voluntarily waived his rights in entering his plea. Dunn's counsel informed the trial court that Dunn wanted to be sentenced immediately, but the court stated it was necessary to prepare a probation report. The court acknowledged that Dunn had not waived time for sentencing, and it scheduled a hearing for June 23.
Dunn returned to court on June 17 to ask that his counsel be relieved under People v. Marsden (1970) 2 Cal.3d 118. Dunn told the trial court that he had not wanted to enter a plea and that after he did so, "I prayed, and I want to have a trial. I want the jury to tell me I'm guilty." After hearing from both Dunn and his attorney their versions of discussions leading to Dunn's plea, the trial court denied Dunn's Marsden motion. The court found that Dunn had "buyer's remorse about this plea," but it considered the plea agreement to be "a pretty good deal." Later that same day, Dunn asked that he be allowed to represent himself, and the trial court granted the request.
Proceeding without an attorney, Dunn filed a motion to withdraw his plea, arguing that he entered it under duress and that he received ineffective assistance of counsel. He testified in support of his motion that he was "scared" when he entered his plea agreement. Dunn also claimed that his attorney had shown "prejudice" against his case because, even though Dunn "never told [his attorney he] stabbed a guy," Dunn's attorney nonetheless told him, "You stabbed a guy, yeah. They will give you 17 years." According to Dunn, before he was offered a plea deal, he was "sure that, like, justice will be served; I didn't do it so I'll be going home; but when he [Dunn's attorney] came at me with the three years and with no other defense—he didn't offer any defense option for me." Dunn stressed that no blood or DNA were on the "razor" police found on him and testified that "I'm aware that I didn't stab anybody." He also claimed that he was found a mile away from the victim after the 911 call, and that he has "one foot with a paralyzed leg, and . . . cannot ride a mile in one minute on a bike." When asked on cross-examination whether he was aware the victim said Dunn stabbed him, Dunn said he did not know who the victim was. Dunn's attorney also testified about his consultations with Dunn regarding his plea, as summarized above and consistent with what he told the trial court during the previous Marsden hearing.
The trial court denied Dunn's motion to withdraw, finding both that Dunn was not under duress when he entered his plea and that Dunn's attorney was credible when he testified about Dunn's acceptance of the plea agreement. The trial court told Dunn that "I find this to be essentially a buyer's remorse; that you made a knowing[], intelligent[] and voluntary waiver of your rights and then entered into a knowing plea. Later on, you thought differently of it, but buyer's remorse is not good grounds to withdraw a plea."
The trial court sentenced Dunn to the midterm of three years in prison. Dunn sought and was granted a certificate of probable cause to challenge on appeal the validity of his plea. This court granted calendar preference after Dunn's appellate counsel informed the court that Dunn is scheduled to be released from prison in October and thus would be denied effective relief if this appeal were decided in his favor after his release date.
II.
DISCUSSION
Dunn argues that the trial court abused its discretion when it denied his motion to withdraw his plea, both because he was under duress and because of his "corroborated innocence," but he is mistaken.
Penal Code section 1018 allows the trial court to grant a defendant's request to withdraw a guilty plea any time before judgment when there is good cause for the withdrawal. Under the statute, "[m]istake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.] But good cause must be shown by clear and convincing evidence." (People v. Cruz (1974) 12 Cal.3d 562, 566.) "And it is settled that good cause does not include mere 'buyer's remorse' regarding a plea deal." (People v. Simmons (2015) 233 Cal.App.4th 1458, 1466 [and cases cited therein].) "A trial court's decision to deny a motion to withdraw a guilty plea is final absent an abuse of discretion." (People v. Perez (2015) 233 Cal.App.4th 736, 741.)
Dunn acknowledges that the trial court characterized his request to withdrawal as "buyer's remorse" and that the court also made a "credibility finding that counsel was credible," but he downplays these findings because "the evidence was one-sided." To the contrary, the trial court heard conflicting testimony about whether Dunn's attorney pressured Dunn to accept a plea deal. We presume the existence of every fact the trier could reasonably deduce from the evidence in support of the lower court's ruling. (People v. Perez, supra, 233 Cal.App.4th at p. 741.) Here, there was sufficient evidence, based on the attorney's credible testimony, that Dunn had wanted the plea deal and had been advised of its consequences before the plea was entered. Dunn places undue emphasis on the supposed significance of being told he faced 17 years in prison if he went to trial, but he does not dispute that he in fact faced such a long sentence in light of his previous strike and the enhancement allegation. Given his trial counsel's credible testimony about explaining the realistic consequences of going to trial, we reject Dunn's argument that being provided accurate information placed him under duress to accept a plea.
We likewise reject Dunn's argument that his "corroborated innocence" justified granting his motion to withdraw. True, he repeatedly testified at the hearing on his motion that he was innocent of the charge against him, and he claimed (as he does on appeal) that he was incapable of riding one mile on a bicycle in a short time because of a paralyzed foot or leg. But Dunn did not offer any evidence (aside from his testimony) about the extent of any paralysis he suffers. And, in any event, we agree with respondent that the testimony at the preliminary hearing was ambiguous as to the precise timing of the stabbing incident and Dunn's subsequent arrest. Furthermore, the fact remains that the police testimony at the preliminary hearing was that the victim identified Dunn by name and said he was riding a bicycle, Dunn was apprehended a short time later with a bicycle and a box cutter, and the victim positively identified him in a picture. Finally, we agree with respondent that reasonable explanations could exist why no blood was observed on Dunn's box cutter, such as the possibilities that Dunn cleaned the blade or that the stabbing was made by a single, quick motion that did not draw blood until after the motion was complete.
The decades-old cases upon which Dunn relies to support his argument that his claims of innocence entitled him to relief are inapposite, because they involved different factual or procedural scenarios. People v. Wadkins (1965) 63 Cal.2d 110, 112-114 involved a situation where the trial court summarily denied the motion of a defendant who had entered a plea but did not receive the sentence he was promised and later alleged he was innocent. Here, by contrast, Dunn received an evidentiary hearing. In People v. Young (1956) 138 Cal.App.2d 425, 426, a motion to withdraw was supported by uncontroverted affidavits attesting that defendant had been unduly influenced by an unprepared attorney, whereas here the trial court heard credible testimony that Dunn's trial attorney adequately discussed Dunn's case with him and explained the consequences of entering a plea. Finally, People v. McGarvy (1943) 61 Cal.App.2d 557 involved a situation where a defendant pleaded guilty to manslaughter after saying he could not afford an attorney and then conferring for no longer than 30 minutes with an attorney who spoke with him at the recommendation of the district attorney but who did not formally represent defendant. (Id. at pp. 558, 560-561.) The appellate court concluded that under the unique circumstances of the case, the interests of justice supported allowing defendant to withdraw a plea that was entered with undue haste. (Id. at pp. 563-565.) The facts of this case stand in stark contrast to McGarvy, because Dunn was represented by competent counsel and was provided ample time to discuss entering a plea.
Because the trial court was well within its discretion to deny Dunn's motion to withdraw his plea, we reject his arguments.
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Banke, J.