Opinion
F052381
9-3-2008
THE PEOPLE, Plaintiff and Respondent, v. JEFF LYLE GIO, Defendant and Appellant.
James F. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Defendant Jeff Lyle Gio entered a plea of no contest to one count of infliction of corporal injury resulting in a traumatic condition upon a spouse, with the enhancement that he inflicted great bodily injury. The court denied defendants motion to withdraw his plea. Defendant appeals, claiming a valid plea cannot be entered when the defendant has no memory of the crimes because of a mental condition. We affirm.
Facts and Procedure
On May 13, 2005, officers were dispatched regarding a stabbing victim. They found defendants wife, Aurora Vasquez, lying on her back outside a residence. She was covered in blood and had multiple stab wounds. When the officers asked her who stabbed her, she identified her husband, defendant, as her assailant. She said that she was asleep when defendant began stabbing her. She escaped through a bedroom window and did not know why he attacked her. She also told officers that defendant was in their residence next door.
Because there was no preliminary hearing or trial, the facts are taken from the probation officers report contained in a confidential portion of the record.
Officers went to defendants home. He would not come out of the house and told the officers that people were out to kill him. The officers found defendant lying on the couch; he was holding a large knife. He did not drop the knife when ordered to do so. Officers shot defendant with an electroshock gun (commonly referred to by its brand name, Taser) and he released the knife. Officers saw a second knife between defendants legs. He reached for the knife and officers fired another shot from the electroshock gun. Defendant was incapacitated and officers arrested him.
When arrested, defendant had blood on his shirt and hands. He had a one-inch puncture wound on his chest that appeared to be self-inflicted. When asked why he stabbed his wife, defendant said he did not know why and screamed that people were trying to kill him.
The home was in disarray, with furniture knocked over and broken glass throughout the house. Blood was spattered on the walls, floor, and bed in the master bedroom.
A neighbor informed officers that she was at home when Aurora rang her doorbell. When she opened the door she saw Aurora, covered in blood. Aurora told her that defendant had stabbed her.
A complaint was filed charging defendant with the attempted murder of his wife (count 1), assault by means of force likely to produce great bodily injury (count 2), and infliction of corporal injury resulting in a traumatic condition upon a spouse with a previous conviction for domestic violence (count 3). In addition, a great bodily injury enhancement and an enhancement alleging that defendant used a deadly weapon (knife) were alleged as to all three counts.
On February 17, 2006, defendant entered a plea of no contest to count three and admitted the allegation that he inflicted great bodily injury. Defendant was asked several questions related to whether he understood the plea agreement, and he responded that he understood. He was also asked if he was presently under the influence of any alcohol, narcotic or drug. He said he was not.
The People stated the factual basis as follows: "On May the 13th, ... approximately some time before noon, the defendant did, during a domestic dispute with his spouse, use a butcher knife, stabbed her several times. She was found by the officers to be bleeding out on the neighbors porch, was taken to the hospital and ended up with about 7 to 8 stab wounds. The defendant was found in the house. He had stabbed himself with another knife. Anyway, they were married, residing together and she sustained great bodily injury." Defendant and his counsel accepted the factual basis.
In addition to the plea hearing, defendant signed a form regarding his plea. In this form he initialed the portion that stated he was in possession of all of his faculties at the time he entered his plea and that his sound judgment was not impaired. He acknowledged in the form that he understood the charges against him and had discussed the charges and all possible defenses with his attorney. As a factual basis for his plea, he stipulated that the police investigative reports showed the elements of count 3 and the great bodily injury enhancement.
On the date set for sentencing defendant informed the court that he wished to withdraw his plea. The court appointed an attorney to represent defendant on the motion to withdraw his plea.
At the request of defense counsel, a psychologist, Dr. Michael Zimmerman, was appointed to examine defendant. The order to the psychologist asked him to examine defendant pursuant to Evidence Code section 1017 and provide information to his lawyer "so that he or she may either advise the defendant whether to enter or withdraw a plea based on insanity or determine whether to present a defense based on the defendants mental or emotional condition."
Dr. Zimmerman found that defendants "report of paranoia and psychotic-like levels of confusion, were consistent with the written descriptions of [defendant] by the police officers who arrested [him] the day before the alleged assault of his wife. Thus, available objective documentation appeared to support [defendants] statement that, due to a mental illness, he did not adequately perceive reality on or about May 13, 2005. There did appear to be grounds for such a defense."
Included in the confidential envelope is a booking report that showed that defendant was booked into jail on May 11, 2005, for being under the influence of a controlled substance. In this report the officer stated that defendant was "rambling on about the Mexican Mafia is out to get him. He then showed me articles in the Fresno Bee and said the articles are incoded [sic] with instructions on how to kill him."
After this report was filed, defense counsel returned to court and stated that there was some confusion when the last report was ordered and the report did not contain the information he requested. It was his intention that Dr. Zimmerman examine defendant and report about his mental state on the day he entered into the plea. The court ordered Dr. Zimmerman to perform a psychological evaluation regarding defendants mental state on the date he entered his plea.
There is no report in the record that may have resulted from this order and the parties do not refer to such.
On August 11, 2006, defendant filed a written motion to withdraw his plea and/or a petition for writ of coram nobis. He argued that he was not apprised of the consequences of his plea agreement at the time he entered into his plea.
Defendant filed a declaration in support of his motion to withdraw his plea. He declared that he was on strong medication at the time of his plea and it made him feel like everything was "okay and confused." He said that his attorney talked him into the plea deal and he was very confused and unduly influenced by his attorney. He stated that the proceedings before the judge were hurried and he did not understand what was being said. He said he did not understand the content of the words he read and heard. Defendant declared that it was his belief that he is innocent of the accusations against him and he has no recollection of doing anything violent to his wife. In addition, he claimed that his wife has stated that he is innocent and that she injured herself. Defendant stated that his retained counsel seemed unhappy that he wanted to go forward with the preliminary hearing. Defendants counsel did not tell him anything positive about his case but tried to sell him on all of the negative aspects and kept trying to influence him by reminding him that he was facing a possible sentence of 22 years to life. Defense counsel brought defendants wife into the room. Defendant stated that his wife told defense counsel that she wanted to testify on defendants behalf that she injured herself. Defense counsel told defendants wife that she would be charged with perjury, a felony. These threats concerned defendant, and under the pressure his will was beaten down and he decided to accept the plea offer. Defendant claimed that based on his medication and his mental state in general he was too confused to have made the plea that day.
The People opposed the motion, claiming that the plea documents and transcript demonstrate that defendant understood his plea. In addition, the People argued that defendant failed to establish grounds to withdraw his plea based on his claim of ineffective assistance of counsel. Attached as exhibits to the Peoples opposition were the reports of two doctors who examined defendant earlier in the proceedings and found he was competent to stand trial. These reports contained defendants report of the incident where he stated he did not recall what happened.
The court denied defendants motion as follows: "Well, I remember taking the plea from Mr. Gio [defendant]. He didnt appear to be under the influence of any alcohol, narcotic or drugs and he said he wasnt. From reading the reports, he is on an anti-depressant but that doesnt seem to me to affect his ability to understand or communicate. So its not a matter of whether the plea was a good plea or not, the issue I see here is ineffective assistance of counsel because you brought out the issue of insanity. The problem is I dont see ineffective assistance of counsel. [¶] Ms. Hicks [defense counsel] obviously considered that issue, talked to the wife, who obviously has recanted and was well aware of the mental issue and thats probably why the plea agreement was to a general intent crime. So I dont see the elements of ineffective assistance of counsel either, so the motion to withdraw the plea is denied. The Court will deny a Writ of Coram Nobis ...."
Defendant was sentenced to prison for the upper term of five years on count 3 with an additional consecutive five-year term for the infliction of great bodily injury on the victim.
Defendant was granted a certificate of probable cause and filed a timely appeal from the judgment.
Discussion
Defendant contends the evidence demonstrates that at the time he entered his plea he did not have any significant memory or recollection of the stabbing incident, and thus there was no factual basis on which he could knowingly and intelligently waive his constitutional rights before entering his plea.
First, we agree with respondent that it does not appear that defendant argued below for withdrawal of his plea on the basis he now asserts on appeal. For this reason, defendant has forfeited this argument. Because defendant did claim in his declaration that (1) he had no recollection of the charged events, (2) he is innocent of the charges, and (3) there was no factual basis to support his plea, we will address the merits of his argument out of an abundance of caution. We accept, for the sake of argument only, that there was sufficient evidence in the record to support a defense assertion that defendant had no memory of the stabbing incident, yet we fail to see how this in any way affected defendants decision to enter into a plea when the evidence supports the trial courts conclusion that defendant knowingly and voluntarily entered his plea.
Defendant relies on People v. Dena (1972) 25 Cal.App.3d 1001 for his argument that his motion to withdraw his plea should have been granted. In Dena, defense counsel investigated the possibility of a defense of diminished capacity based on the defendants blood alcohol level at the time of the crime. Defense counsel received reports from the district attorney that the defendants blood alcohol level was .19 and was led to believe by the district attorneys office that the sample was taken 15 minutes after the defendant was apprehended. Defense counsel consulted an expert, who concluded that this level would not justify raising the defense of diminished capacity. Thus, defense counsel concluded this defense had no merit and advised the defendant to change his plea to guilty. At the plea hearing the court and defense counsel discussed the defense of diminished capacity, and defense counsel told the court that he had abandoned this defense after his expert informed him the evidence to establish diminished capacity was not present. Although the district attorney had in his possession evidence demonstrating that the blood sample from defendant had been taken much later in time than when defense counsel believed it was taken, and the district attorney was told at the hearing by a deputy sheriff that defense counsel was proceeding based on the wrong time of the blood draw, the district attorney did not correct this mistake and in fact told the deputy to "`forget that you remembered that." (Id. at p. 1007.) The defendant pleaded guilty. Shortly thereafter defense counsel learned that the district attorney had withheld this information, and defense counsel filed a motion to set aside the plea. At the motion to withdraw, the defense expert testified that the time the blood sample had been drawn was significant to the blood alcohol level and particularly significant to a defense of diminished capacity. The trial court denied the motion to set aside the plea of guilty. (Id. at pp. 1006-1008.)
The appellate court reversed the trial courts denial of the motion to set aside the plea of guilty. "We are persuaded that there was a clear and convincing showing that the free will and judgment of the defendant were overcome by extrinsic causes, viz., the district attorneys suppression of evidence favorable to defendant." (People v. Dena, supra, 25 Cal.App.3d at p. 1009.) The appellate court found that if defense counsel had "been aware of the critical time factor, it is reasonable to infer he would never have advised his client to forsake his defense of diminished capacity and enter a plea of guilty. Moreover, from the meticulous manner in which the trial judge questioned counsel on the change of plea proceedings, it is reasonable to assume that he would not have permitted defendant to change his plea had he been aware of the true facts." (Ibid.)
Defendant relies on Dena as support for his argument that when a defendants mental state at the time of the offense is in doubt, the court should grant a motion to withdraw a guilty plea. We fail to see how Dena has any application to what occurred here. Dena stands for the proposition that at the time the defendant enters his plea he must be aware of the possible defenses to the charges against him. It does not stand for the proposition that the evidence must demonstrate that a defendant has full mental capacity at the time he committed the crime before he will be allowed to enter into a plea agreement. Such a proposition is counter to the law and would preclude plea bargains in all cases where the defendant provides evidence that at the time the crime was committed he lacked some sort of mental capacity.
"A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. [Citations.] `Section 1018 provides that ... "On application of the defendant at any time before judgment ... the court may, ... for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted." Good cause must be shown for such a withdrawal, based on clear and convincing evidence. [Citation.] [Citations.] `To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.] Other factors overcoming defendants free judgment include inadvertence, fraud or duress. [Citations.] [Citation.] `The burden is on the defendant to present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty. [Citation.]" (People v. Weaver (2004) 118 Cal.App.4th 131, 145-146.)
"Plea bargaining has become an accepted practice in American criminal procedure, `an integral part of the administration of justice in the United States [citation], `essential to the expeditious and fair administration of justice. [Citation.]" (People v. West (1970) 3 Cal.3d 595, 604.) A plea is not invalid because it is motivated "by the defendants desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged." (Brady v. United States (1970) 397 U.S. 742, 751.) "Both the state and the defendant may profit from a plea bargain. The benefit to the defendant from a lessened punishment does not need elaboration; the benefit to the state lies in the savings in costs of trial, the increased efficiency of the procedure, and the further flexibility of the criminal process." (People v. West, supra, 3 Cal.4th at p. 604.)
The fact that evidence may have supported a finding that defendant had no memory of the offenses does not prohibit him from entering a plea bargain. What is relevant is his mental state at the time he entered his plea and that he was aware and fully informed that he had a possible defense based on his mental capacity at the time of the offense. (See People v. Harvey (1984) 151 Cal.App.3d 660, 666-671.) Defendant was found competent to stand trial by two doctors who examined him. The trial court found defendant was competent at the time he entered his plea and that his plea was knowing and voluntary. The evidence supports a finding that defense counsel was aware of the possible defenses arising from defendants mental condition and advised defendant about this defense. The evidence supports these findings, and defendant has not argued otherwise on appeal.
A defendant may be allowed to withdraw his plea when he or she has not been adequately advised regarding defenses relating to his or her mental state before entering a plea, but contrary to defendants assertion now on appeal, a defendant is not precluded from entering into a plea agreement because at the time of the incident he or she may have been suffering from a mental state that would amount to a defense. If competent at the time of the plea, the defendant is able to weigh the pros and cons of going forward to trial with his or her case or accepting a plea bargain because there is a risk the fact finder may not accept the defense relating to the defendants mental state.
The trial court did not err when it denied defendants motion to withdraw his guilty plea.
Disposition
The judgment is affirmed.
We concur:
GOMES, J.
HILL, J.