From Casetext: Smarter Legal Research

People v. Grisham

California Court of Appeals, Fourth District, Second Division
Feb 24, 2011
No. E050148 (Cal. Ct. App. Feb. 24, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County No. FBA800222, John P. Vander Feer, Judge.

Amanda F. Benedict, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.


HOLLENHORST, J.

Defendant and appellant Michael Thomas Grisham and three codefendants were charged with possession of methamphetamine for sale (Health & Saf. Code, § 11378, count 1), possession of marijuana for sale (Health & Saf. Code, § 11359, count 2), and receiving stolen property (Pen. Code, § 496, subd. (a), count 3). Defendant entered into a plea agreement and pled nolo contendere to count 1. The remaining counts were dismissed pursuant to the plea agreement. Subsequently, defendant moved to withdraw his plea. Following testimony and argument by counsel, the trial court denied the motion.

The complaint in the record also lists other charges (counts 4 & 5), plus other allegations. However, the record does not make clear what happened to those additional charges. The record shows that defendant was arraigned on counts 1 through 3 only.

Defendant’s sole contention on appeal is that the court abused its discretion in denying his motion to withdraw the plea. We affirm.

FACTUAL BACKGROUND

This brief summary of the facts is derived from the police reports. The parties stipulated to the police reports as a factual basis for defendant’s guilty plea.

After receiving information about possible drug sales at defendant’s residence, the Barstow Police Department secured a search warrant. The police served the search warrant on April 1, 2008. A few individuals were inside the residence, but defendant was not present. In one of the bedrooms officers found baggies containing what appeared to be methamphetamine, a digital scale, personal mail addressed to defendant, hypodermic needles, and a “pay-owe” book. In another bedroom, officers found a baggie of suspected methamphetamine, a scale, baggies of suspected marijuana, eight glass smoking devices, and plastic baggies. In a third bedroom, officers found a shotgun, a scale, and suspected marijuana. Additional substances suspected to be methamphetamine and marijuana were found in the kitchen. Random field tests were conducted on some of the substances found, and they came back positive for methamphetamine and marijuana. Defendant was located and arrested that day.

ANALYSIS

The Trial Court Properly Denied Defendant’s Motion to Withdraw His Plea

Defendant argues the court erred in denying his motion to withdraw his guilty plea. We disagree.

A. Procedural Background

On June 12, 2008, prior to orally entering his plea, defendant signed and initialed a three-page plea agreement. The agreement provided that he would plead guilty to count 1. Defendant initialed the box next to item No. 19, which states: “I have had sufficient time to consult with my attorney concerning my intent to plead guilty/no contest to the above charge(s).... My lawyer has explained everything on this declaration to me, and I have had sufficient time to consider the meaning of each statement. I have personally placed my initials on certain boxes on this declaration to signify that I fully understand and adopt as my own each of the statements which correspond to those boxes.” The plea agreement additionally provided for the dismissal of the remaining counts. The parties agreed to felony probation with 120 days in a work release program. Defense counsel signed the portion of the plea agreement providing that he had “personally read and explained the contents of the [plea agreement] to the defendant; that [he] personally observed the defendant sign [the agreement]; that [he] concur[red] in the defendant’s withdrawal of [his] plea(s) of not guilty; and that [he] concur[red] in the defendant’s plea(s) of guilty... as set forth by the defendant in the above [agreement].”

At the taking of defendant’s plea, the court asked if defendant had adequate time to discuss his case with his attorney and to discuss all of his rights, all penalties and punishments, and the nature of the charges. Defendant replied that he had. The court asked if he understood all of his rights, the penalties and punishment, and the nature of the charges. Defendant replied that he did. Finally, the court asked defense counsel if he agreed that he had adequate time to discuss everything with defendant, and defense counsel said that he had. Defense counsel was asked if, when he went over the plea form with defendant, he believed defendant understood everything on the form. Defense counsel replied that he did. Defense counsel also said that he consented to the change of plea. Defendant orally entered a plea of no contest to count 1, as read by the court to be “the crime of possession for sale of a controlled substance, in violation of Health and Safety Code Section 11378, a felony.” Counsel then stipulated to the police and lab reports as establishing a factual basis for the plea. The court asked if defense counsel concurred in the plea, and he said that he did. The court then found that the plea and waiver of constitutional rights were knowingly and intelligently made. The court dismissed the remaining counts in accordance with the plea agreement.

On July 28, 2008, defendant orally requested to withdraw his plea. On January 2, 2009, he filed a formal motion to withdraw his plea. The prosecutor filed an opposition on January 15, 2009.

On January 30, 2009, the trial court held a hearing on the motion. The court indicated that it had reviewed defendant’s motion, as well as the opposition. The court also read and considered the transcript of the plea proceedings on June 12, 2008. The People called defendant’s former counsel, Alphonse Provinziano, to testify. He explained his usual practice in counseling his clients, stating: “I wouldn’t pressure anyone to take a plea. My ordinary practice is to talk to the defendant about his case, to review with him the facts of the case, oftentimes to read the police report to the defendant, let them know what their maximum exposure is in terms of jail time on a case, and then also let them know what the [district attorney]’s offer is and let them know if I think there’s any kind of negotiation room.” He testified that he does not withhold information from defendants, with the exception of witness addresses or any kind of confidential information. He said he tried to go over the police report in its entirety with every defendant, and that he followed that practice with defendant. Provinziano added that it was his practice to tell a defendant that it was really his or her personal decision, and that he would back them up on whatever they wanted to do.

Provinziano recalled representing defendant. He testified that he went over defendant’s case with him pretty extensively, for about an hour, and reviewed the facts and the witness statements with him. He also recalled discussing the defenses with defendant. Provinziano did not recall defendant ever indicating that he needed more time to consider his decision on whether or not to accept the plea agreement.

Defendant also testified at the hearing. He said that the first thing Provinziano did when they discussed his case was present the prosecution’s offer. Provinziano started to read the police report to defendant, but then was interrupted and never finished. However, Provinziano did go over the most important facts of the case with him. Defendant said that when he asked Provinziano for a copy of the police report, Provinziano said he was not allowed to give him one. Defendant further said that he felt he was pressured to answer whether he wanted to take the plea or not. Defendant said he talked to Provinziano for only 10 minutes, and Provinziano wanted an answer. According to defendant, Provinziano told him that he would lose the deal if he did not take it immediately, and that the prosecution would give him the maximum penalty. He did not feel that he had all the information he needed, so he felt that he made an “uninformed decision.”

Defendant further testified that he lost confidence in Provinziano as they waited in the hallway outside the courtroom. He said that Provinziano told the prosecutor, sarcastically, that he (defendant) did not have a job, but promised to get one soon. The prosecutor responded by saying, “I should just give him 30 days for not having a job.”

Defendant also testified that, once inside the courtroom, Provinziano leaned over and whispered to him that one of his codefendants got all of his charges reduced to misdemeanors. Defendant testified that he felt “really uncomfortable” with his decision to plead no contest, especially because he knew his codefendant’s charges had been reduced. However, he went along with the plea. Defendant felt that his culpability was far less than that of his codefendant. He also lost his confidence that his attorney was representing him in the best possible way. Defendant added that when he was asked by the court whether he received enough time to discuss his case with his attorney, he answered in the affirmative because he was instructed to do so. Defendant thought he would have an “automatic option to withdraw the plea if there was anything about it that wasn’t right.”

After hearing the testimony, the court noted that it was the same court that took defendant’s plea. The court then stated that it believed Provinziano when he said he spent almost an hour with defendant, and that it was not his practice to pressure a defendant. The court added that Provinziano had appeared before it numerous times, and that there was nothing about him that ever indicated Provinziano pressured people to do anything. The court concluded: “I think the case comes down to what [defendant] pointed out is [sic] that he felt uncomfortable when [his codefendant] received a misdemeanor disposition and the case was resolved as a misdemeanor at the time of the taking of the plea. In his case[, ] it was resolved as a felony, and he felt uncomfortable with that and didn’t—and believed it was his option to be able to withdraw the plea. [¶] I think that’s primarily the circumstances.” The court summarized that defendant was not comfortable with his codefendant’s disposition, felt that he had the option to withdraw the plea, and then brought this motion. The court found that defendant had not shown good cause to withdraw the plea and denied the motion.

B. Standard of Review

“A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. [Citations.]” (People v. Weaver (2004) 118 Cal.App.4th 131, 145; § 1018.) “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 defendant’s free judgment include inadvertence, fraud or duress. [Citations.] However, ‘[a] plea may not be withdrawn simply because the defendant has changed his mind.’ [Citation.]” (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208 (Huricks).) “‘The burden is on the defendant to present clear and convincing evidence [that] the ends of justice would be subserved by permitting a change of plea to not guilty.’ [Citation.]” (Weaver, at p. 146.)

“[T]he trial court on a contested motion to withdraw a plea of guilty... is the trier of fact and hence the judge of the credibility of the witnesses or affiants. Consequently, it must resolve conflicting factual questions and draw the resulting inferences. [Citation.]” (People v. Quesada (1991) 230 Cal.App.3d 525, 533 (Quesada), superseded by statute on other grounds as stated in People v. Totari (2003) 111 Cal.App.4th 1202, 1206, fn. 5.) “[A] reviewing court must adopt the trial court’s factual findings if substantial evidence supports them. [Citation.]” (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)

“‘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.]” (Huricks, supra, 32 Cal.App.4th at p. 1208.)

C. There Was No Abuse of Discretion

Defendant contends he should have been allowed to withdraw his guilty plea because: 1) he only had a few minutes to confer with trial counsel regarding his charges and possible defenses, and was, thus, not fully apprised when entering the plea; and 2) he felt pressured to enter into the plea agreement by his counsel’s warning that if he did not accept the plea, it would be withdrawn, and the prosecution would seek the maximum penalty. Defendant failed to prove by clear and convincing evidence that either contention provided good cause to withdraw his plea.

First, defendant failed to prove that he did not have enough time to discuss the case with his attorney. He expressly informed the court that he did have an adequate opportunity to confer with counsel. On his plea form, he initialed the box next to item No. 19, which stated: “I have had sufficient time to consult with my attorney concerning my intent to plead guilty/no contest to the above charge(s).... My lawyer has explained everything on this declaration to me, and I have had sufficient time to consider the meaning of each statement.” Defendant also answered in the affirmative at the plea hearing when the court asked if he received enough time to discuss the case with his attorney. Moreover, defendant’s claim was contradicted by Provinziano’s testimony. Provinziano testified that he spent approximately one hour discussing the case with defendant, and that he read the police report to him, went over the witness statements with him, and discussed possible defenses with him. Although defendant testified that Provinziano only spent 10 minutes with him, the court expressly found Provinziano’s account credible. We must defer to the trial court’s credibility determination. (Quesada, supra, 230 Cal.App.3d at p. 533; People v. Jones (1990) 51 Cal.3d 294, 314.)

Defendant attempts to analogize his case to People v. McGarvy (1943) 61 Cal.App.2d 557 (McGarvy), but McGarvy is distinguishable. In McGarvy, the defendant was arrested for murder on one day and arraigned the next day. The following day, he appeared in court with an attorney and entered a guilty plea to the charge of manslaughter. (Id. at p. 558.) He was sentenced on his guilty plea 10 minutes later. (Ibid.) His plea came after conversing with the attorney for 20 to 30 minutes about the facts of the case. (Id. at p. 560.) The attorney he spoke with was not even appointed to represent him; but rather, was only asked to speak with him by the prosecutor. (Id. at pp. 560-561.) The trial court denied the defendant’s motion to change his plea, and the appellate court reversed. (Id. at pp. 558, 565.) The appellate court concluded “that there was undue haste in the entire disposition of the case.” (Id. at p. 561.)

Defendant’s case is not similar to McGarvy. Defendant was arrested, and then arraigned over one month later. He had appointed counsel to represent him. He initially pled not guilty, then entered a plea agreement one week later. Prior to entering the plea agreement, his attorney consulted with him for approximately one hour. Defendant’s case was pending for over two months before the date he entered the plea agreement. Unlike McGarvy, there was no “undue haste” here.

Second, defendant failed to establish good cause for withdrawing his plea by his claim that Provinziano pressured him into entering the plea agreement by warning him that if he did not accept the plea, it would be withdrawn, and the prosecution would seek the maximum penalty. “Nothing in the record indicates he was under any more or less pressure than every other defendant faced with serious felony charges and the offer of a plea bargain.” (Huricks, supra, 32 Cal.App.4th at p. 1208.) Furthermore, although defendant testified that he felt pressured by Provinziano to take the prosecution’s deal and enter the plea agreement, the court rejected this testimony. The court found credible Provinziano’s testimony that it was not his practice to pressure anyone to enter a plea agreement, since he considered the decision to be a personal one. Additionally, on his plea form, defendant initialed the box next to item No. 12, which stated that no one had used any force, threats or duress to induce his guilty plea. He did not indicate otherwise at the plea hearing.

As the court observed, defendant apparently just changed his mind, after pleading guilty. Defendant testified that he felt “uncomfortable” with his decision to plead no contest because he knew his codefendant’s charges had been reduced, and he felt that his culpability was far less than that of his codefendant. He admitted that that was one of the reasons that he wanted to withdraw his plea. He also said he assumed that he could plead no contest and “automatically” withdraw the plea if he thought there was anything wrong with it. Defendant’s feeling that he did not receive the bargain he should have, in view of his codefendant’s reduction in charges, does not establish good cause. (See People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)

The trial court was well within its discretion when it denied defendant’s motion to withdraw the plea.

DISPOSITION

The judgment is affirmed.

We concur: RAMIREZ P. J., CODRINGTON, J.


Summaries of

People v. Grisham

California Court of Appeals, Fourth District, Second Division
Feb 24, 2011
No. E050148 (Cal. Ct. App. Feb. 24, 2011)
Case details for

People v. Grisham

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MICHAEL THOMAS GRISHAM, Defendant…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Feb 24, 2011

Citations

No. E050148 (Cal. Ct. App. Feb. 24, 2011)