Opinion
2d Crim. No. B292601
02-05-2020
THE PEOPLE, Plaintiff and Respondent, v. GREGG VINCENT GAULT, Defendant and Appellant.
Laurie A. Thrower, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Jason Tran and Shezad H. Thakor, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16F-03493)
(San Luis Obispo County)
Gregg Vincent Gault appeals the judgment entered following his no contest plea to sexual penetration of a child under the age of 10 (Pen. Code, § 288.7, subd. (b)). The trial court sentenced him to 15 years to life in state prison. Appellant contends the court erred in denying his motion to withdraw his plea pursuant to section 1018. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
In April 2016, appellant disclosed to his therapist that he had sexually molested his then seven-year-old daughter Jane Doe when she was four years old. The therapist reported the disclosure to the authorities. Appellant subsequently confessed to sexually molesting Jane on other occasions when she was between six months and four years old.
When Jane was interviewed, she recounted several incidents when appellant had "rubbed her privates." Once when Jane was about five years old, appellant took off her clothes, rubbed her vagina, and told her "[i]t's okay you're going to be done soon." She did not tell anyone about the incident because she was embarrassed. Jane also said that appellant "would hold her behind the neck while he rubbed his privates."
Appellant was charged with one count of sexual penetration of a child under the age of 10 (§ 288.7, subd. (b); count 7), six counts of committing a lewd act upon a child under the age of 14 (§ 288, subd. (a)), five counts of assault with intent to commit a felony sex offense upon a victim under the age of 18 (§ 220, subd. (a)(2)), and one count of committing a forcible lewd act upon a child (§ 288, subd. (b)(1)). Attorney Linden Mackaoui was appointed as appellant's public defender. Five of the charges were later dismissed on the prosecutor's motion.
The preliminary hearing was scheduled on February 16, 2017. On the day of the hearing, the prosecution filed a motion for Jane to testify at the hearing while holding a support animal. That same day, the prosecution offered to allow appellant to plead no contest to count 7 and be sentenced to 15 years to life in state prison, or plead no contest to other counts and receive a 25-year determinate sentence. At appellant's request, the trial court allowed him to discuss the offer with his wife while Mackaoui was present. The court stated that the discussion "needs to be brief, however, because . . . we have a small child" waiting to testify and "I don't want her just waiting, and waiting, and waiting, so some hard but quick decisions need to be made."
The sentence for a violation of section 288.7, subdivision (b) is 15 years to life in state prison. (§ 288.7, subd. (b).)
When the matter was recalled later that day, Mackaoui informed the court that appellant was prepared to plead no contest to count 7 for a sentence of 15 years to life in state prison. When the court asked appellant if he was ready to enter that plea, appellant stated that "a few days ago the D.A. made an offer of two ten-year sentences determinate, [and] I was willing to take that offer. I don't understand the parameters of a life sentence. I feel like I'm being cornered and forced to take this. And I would be willing to take the two ten-year offer."
The prosecutor replied that the prior 20-year offer had been withdrawn after appellant rejected it and added "[i]f [appellant] chooses to go forward with the prelim, he will not get a determinate offer from me again . . . . If his child has to testify my future offers will be life. I understand that is part of his considerations. I do not want him to feel cornered, I just want him to have all . . . the facts . . . . A 25[-year] determinate term is 21 years in custody with the time credits. If he wants that he can have that today, but I'm not going to engage in a manipulation with [appellant] in which I feel he is trying to do with the court right now. My offer's 25 or 15-to-life."
Appellant then announced he was ready to plead no contest to count 7 with a sentence of 15 years to life. The court asked appellant, "Do you feel you've had sufficient time to think about this and to discuss it with your lawyer?" Appellant replied, "Yes." The court advised appellant that as a convicted felon, he would be prohibited from "do[ing] certain things, such as, possess firearms, be on a jury, or possess certain licenses issued by the state; Do you understand that?" Appellant asked, "[D]o you know if that includes a contractor's license?" The court replied, "I don't know." Mackaoui interjected "I think that he would certainly have difficulty getting his [contractor's] license renewed based upon a felony conviction." Appellant replied, "Okay."
The court continued: "So this offense is punishable by a minimum of 15 years [to life], and it will be up to the Parole Board to decide, based on your record that will exist as of this sentencing, as well as your conduct in . . . prison, and decide how many years beyond 15 that you would have to serve; do you understand that?" Appellant replied, "Yes, your honor." The court also asked appellant "[h]as anybody made any promises to you about what will happen to you other than what has been stated in court?" Appellant replied, "No."
After the plea colloquy, appellant pleaded no contest to count 7. The court found him guilty of the offense after finding he had knowingly, voluntarily, and intelligently entered his plea and that there was a factual basis for the plea. The remaining counts were dismissed on the prosecutor's motion.
The prosecutor offered the following factual basis for appellant's plea, which was based on what appellant had told his therapist and the police: "[Appellant] [took] his daughter, Jane Doe . . . , out on a date, something he would typically do with his daughter as a father, and during that time she had fallen asleep in the truck, it occurred to him at that point that he was then going to pull over on the side of the road and [he] began to masturbate. During that masturbation of himself he then reached over to his daughter while she was sleeping and began rubbing her vagina inside the inner lips."
Prior to sentencing, Mackaoui withdrew as appellant's attorney and counsel Scott Taylor was appointed to represent appellant. In August 2017, appellant informed Taylor that he now believed he never actually molested Jane. Appellant, who suffers from bipolar disorder, told Taylor he had been taking a new medication and was thinking more clearly. Appellant believed that his "false" memories had been created by a pornographic video he had seen in which male actors engaged in sexual activity with actresses portraying their stepdaughters. A psychologist who evaluated appellant in September 2017 concluded "that there is a legitimate basis for [appellant's] current assertions that he did not actually sexually abuse his daughter." The psychologist recognized, however, that "whether [appellant] did or did not molest his daughter is a determination only [a] trier of fact can make."
On October 19, 2017, appellant filed a motion to withdraw his plea under section 1018 on the ground of ineffective assistance of counsel. The motion claimed among other things that Mackaoui had provided ineffective assistance by "fail[ing] to consult with a mental health expert to examine any possible defenses related to [appellant's] mental health."
Appellant's motion also claimed that the child forensic specialist who interviewed Jane used improper techniques and fabricated her credentials, and that the prosecution's failure to disclose this information may have constituted misconduct under Brady v. Maryland (1963) 373 U.S. 83 .) Appellant has abandoned these claims on appeal.
Mackaoui testified at the hearing on the motion. Mackaoui knew appellant suffered from bipolar disorder and was in the process of obtaining a psychological evaluation when appellant entered his no contest plea. The evaluation had been scheduled for the same date as the preliminary hearing, but neither the prosecutor nor the court were amenable to a continuance. In Mackaoui's discussions with appellant, appellant never appeared to be delusional and never claimed he had experienced unfounded delusions.
Mackaoui received records through discovery indicating that appellant had been involuntarily committed in Washington for a bipolar episode when he was 19 years old and had previously confessed to molesting dementia patients while working in a nursing home. Appellant's confession could not be substantiated so no charges were filed against him. Mackaoui did not subpoena the records from appellant's involuntary commitment because he was concerned that the prosecutor would use them against appellant.
Mackaoui knew appellant would initially be reluctant to accept a plea deal because appellant and his wife believed he would receive probation and serve no more than a year in jail. On the day appellant entered his no contest plea, "the pressure was intense" because appellant and his wife "wanted to avoid, [if] at all possible, putting [Jane] . . . on the stand." Preventing Jane from having to testify "was probably 95 percent of" the reason for appellant's plea. Mackaoui told appellant "I can probably get you a 15[-year]-to-life at a readiness conference at jury trial" and added, "I couldn't imagine the People not accepting a life sentence just because he didn't plead at [the] preliminary hearing."
Mackaoui experienced "difficulty" in advising appellant "whether a 25[-year] determinate sentence was better than a 15-to-life sentence." Although Mackaoui "could not answer [appellant's] question specifically about what the likelihood of parole is on a 15-to-life sentence," Mackaoui and the prosecutor both told appellant he would likely be a good candidate for parole after serving the initial 15-year sentence.
After appellant entered his no contest plea, Mackaoui told the prosecutor, "Don't be surprised if I ask you to change it back to [a 25-year determinate sentence]." At some point, appellant told Mackaoui he had changed his mind and now wanted the 25-year deal. The prosecutor declined to allow appellant to change his plea, which prompted appellant to seek to withdraw his plea.
The trial court found appellant had failed to demonstrate good cause for withdrawing his plea and accordingly denied his motion. In rejecting appellant's ineffective assistance of counsel claim, the court reasoned that "[t]he prosecutor had put a deadline on her offer, so it was the defendant's informed decision to accept the plea bargain before pursuing a mental health angle of the case. The prosecutor put pressure on the plea . . . by setting a deadline for revoking the offer, but that wasn't Mr. Mackaoui's fault. And he was making decisions along with the defendant given the time that was afforded to him. It's also clear from [Mackaoui's] testimony that one of [appellant's] overriding concerns was not forcing his daughter to testify against him and . . . that was another pressure that was put on the decision but not one that Mr. Mackaoui had any control over." The court also found Mackaoui had reasonably concluded that appellant's Washington mental health records "would probably be more helpful to the prosecution than the defense and that he should spend his time in preparing other defenses prior to the preliminary hearing."
At the outset of the sentencing hearing, Taylor asked the court to continue the matter because appellant thought Taylor had "done an inadequate job of addressing one issue that he had, specifically what he was told just prior to his plea." Appellant also believed that Mackaoui had "coerced" him to accept the 15-years-to-life offer by telling him "he was going to be a poster boy for parole when, in fact, all the studies show that somebody convicted of this offense is very unlikely to ever get parole."
The court denied the request for a continuance and asked appellant if he wanted to add anything. Appellant replied: "The issue that I've had with this isn't whether I understood the difference between the two options that I was being given, the 15 to life or 25 determinate. The issue is that [I] was [previously] given an offer of 20 years determinate. . . . Then the offer was 15 to life or 25. I talked to [Mackaoui] about that, and he told me that the 15 to life is better than the previous offer of 20. That's the reason I took it. . . . I would not have plead [sic] . . . no contest or guilty had I known that it was more than 20 years." According to appellant, he "was guaranteed to be on the 15 year flat." The court pointed out that "[i]ndeterminate means it's not guaranteed" and appellant replied, "Yes. I understand that." Appellant later added "I believe I would not have plead [sic] no contest had I had a psychiatric evaluation, had I had appropriate representation, and several other issues that we had with the D.A. . . . I believe I would have gone through with the prelim."
DISCUSSION
Appellant contends the court abused its discretion in denying his motion to withdraw his plea. We disagree.
Section 1018 states in relevant part: "On application of the defendant at any time before judgment . . . the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. . . . This section shall be liberally construed to effect these objects and to promote justice."
"The general rule is that the burden of proof necessary to establish good cause in a motion to withdraw a guilty plea is by clear and convincing evidence. [Citations.]" (People v. Huricks (1995) 32 Cal.App.4th 1201, 1207.) "'Withdrawal of a guilty plea is left to the sound discretion of the trial court. A denial of the motion will not be disturbed on appeal absent a showing the court has abused its discretion.' [Citations.]" (Id. at p. 1208.)
Appellant moved to withdraw his plea on the ground of ineffective assistance of counsel. "The test for ineffective assistance of counsel is a demanding one." (People v. Acosta (2018) 28 Cal.App.5th 701, 706.) The claim requires a showing that defense counsel's performance fell below an objective standard of reasonableness and that the defendant was prejudiced by the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687 .)
The defendant bears the burden of demonstrating deficient performance by a preponderance of the evidence. (In re Thomas (2006) 37 Cal.4th 1249, 1257.) "[A] reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009.) To establish prejudice based on incompetent advice regarding whether to plead guilty, the defendant must show "a reasonable probability that, but for counsel's incompetence, [he or she] would not have pleaded guilty and would have insisted on proceeding to trial." (In re Alvernaz (1992) 2 Cal.4th 924, 934.)
Appellant asserts that Mackaoui provided ineffective assistance of counsel by failing to have him evaluated by a psychologist. He claims "[i]t was not until after he was examined by a psychologist that appellant realized he had the defense of actual innocence." Appellant also asserts that "[n]either the court nor [Mackaoui] could answer his question regarding what effect the felony conviction would have on his ability to renew a contractor's license" and that Mackaoui effectively admitted "he was unable to answer his client's questions prior [to] the plea."
Appellant also claims that his plea was involuntary because he was acting under "extreme emotional duress." Appellant, however, did not move to withdraw his plea on the ground of duress. Although Taylor's argument in support of the motion alluded to appellant acting under duress, those comments were made in the context of arguing that Mackaoui had provided ineffective assistance of counsel. Moreover, the trial court did not rule on any claim of duress and the certificate of probable cause was not issued for such a claim. Accordingly, appellant's claim that his plea was involuntary due to duress is not cognizable on appeal. (People v. Mendez (1999) 19 Cal.4th 1084, 1095; People v. Ribero (1971) 4 Cal.3d 55, 63-64.) --------
Appellant, however, does not establish a reasonable probability that, but for Mackaoui's alleged deficient representation, he would not have pled no contest and would have insisted on going to trial. (In re Alvernaz, supra, 2 Cal.4th at p. 934.) The record demonstrates that appellant chose to plead no contest because he wanted to spare his daughter the trauma of having to testify against him. Mackaoui testified that this was "95 percent" of the reason for appellant's plea, and appellant offered nothing to challenge that testimony; indeed, appellant did not testify at the hearing or provide a sworn declaration in support of his motion.
In any event, appellant's "new" defense of actual innocence was not triggered by his psychological evaluation, but rather by his own self-serving report—five months after he entered his plea— that he had come to believe he had simply imagined molesting Jane due to a bipolar episode. Although the psychologist who evaluated appellant concluded there was "a "legitimate basis for his current assertions that he did not actually sexually abuse his daughter," the psychologist also recognized that "whether [appellant] did or did not molest his daughter is a determination only [a] trier of fact can make." If the matter proceeded to trial, Jane would be called to testify and the jury would be shown the taped interview in which she described numerous instances of appellant's sexual abuse. Moreover, appellant could have been convicted on up to eight counts, including the one to which he pled no contest in exchange for dismissal of the others.
The record also belies appellant's claim that Mackaoui's deficient performance led him to accept a 15-years-to-life indeterminate term rather than a 25-year determinate term. At sentencing, appellant claimed he would not have pled no contest to count 7 "had [he] known that it was more than 20 years" and that he "was guaranteed to be on the 15 year flat." When appellant entered his plea, however, he expressed his understanding that "it will be up to the Parole Board to decide . . . how many years beyond 15 that [he] would have to serve" and answered no when asked if "anybody made any promises to [him] about what will happen to [him] other than what has been stated in court."
We do not doubt appellant's assertions that he faced an extremely difficult choice in deciding whether to enter his plea. The difficulty of that choice, however, cannot be attributed to Mackaoui's representation. The prosecution was prepared to call Jane to testify at the preliminary hearing, and preventing that from happening was appellant's paramount concern. The availability of a potential defense at trial would not have alleviated that concern, nor would have more complete advisements regarding the effect of the plea on appellant's contractor's license or the difference between determinate and indeterminate sentences. Because appellant has not demonstrated a reasonable probability that he would not have pled no contest and would have insisted on going to trial but for the alleged deficiencies in Mackaoui's representation, the court did not abuse it discretion in denying his motion to withdraws his plea. (In re Alvernaz, supra, 2 Cal.4th at p. 934.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P. J.
YEGAN, J.
Craig van Rooyen, Judge
Superior Court County of San Luis Obispo
Laurie A. Thrower, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Jason Tran and Shezad H. Thakor, Deputy Attorneys General, for Plaintiff and Respondent.