Opinion
D039970.
11-12-2003
THE PEOPLE, Plaintiff and Respondent, v. PATRICK JOHN HAMILTON, Defendant and Appellant.
Patrick John Hamilton appeals a judgment following his guilty plea to one count of second degree murder (Pen. Code, § 187, subd. (a)). He contends the trial court erred by denying his motion to withdraw his guilty plea in which he asserted he was denied effective assistance of counsel.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Because Hamilton pleaded guilty shortly after the trial began, the statement of facts in this opinion is based on the prosecutors pretrial briefs and evidence admitted at Hamiltons preliminary hearing.
Denise Vasseur (Vasseur) was married to Charles Vasseur. Vasseur and Hamilton both worked at the San Diego Wild Animal Park, and in the fall of 1999 started carpooling together and began an affair. In June 2000 Vasseur lived with Hamilton for about a week before returning home to her husband despite Hamiltons pleas not to do so. In July Vasseur terminated her relationship with Hamilton. When she tried to leave Hamiltons residence one evening, he physically prevented her departure. In late August Hamilton told a coworker Vasseur had returned to her husband and he was depressed she was spending time with her husband. The coworker advised him, "Dont O.J. it." Hamilton told another coworker he was upset and referred to Vasseur as "that bitch." In early September a coworker saw Vasseur and Hamilton argue. On September 20 Vasseur sent an e-mail to Hamilton, stating in the subject line, "Here it is," and stating in the text: "This is the e-mail I promised to send."
On September 21 Vasseurs husband gave her a surprise anniversary gift. They planned to celebrate their fourth wedding anniversary at a special dinner event on September 23. Shortly before 6:00 p.m. on September 21, Hamilton presumably read Vasseurs e-mail to him. According to subsequent statements made to his brother and a coworker, Hamilton went to Vasseurs residence that evening and surreptitiously watched or listened to Vasseur and her husband "getting romantic" or "messing around." Hamilton was frustrated and angry. At about 5:00 a.m. the next morning (September 22), Vasseur left home to go to work. She took her overnight bag and a sleeping bag in preparation for her overnight tent stay at the San Diego Wild Animal Parks "Roar and Snore" program. Her husband watched as she drove from their home in her Honda Odyssey minivan. He left for work at about 5:30 a.m.
Vasseur did not arrive at work that morning and was never seen again. At about 6:15 or 6:30 a.m., Hamilton called a coworker and told him that he and Vasseur were carpooling together, had car trouble, and might not come to work that day. At 7:23 a.m. Hamilton bought gas in Escondido. At about 1:25 p.m. the next day (September 23), Hamilton was at a convenience store in Ramona. At about 5:00 p.m. that day, Vasseurs husband saw her minivan parked on the street two houses from their home. Her car keys were in the ignition, but her overnight bag and other belongings were missing. The minivans drivers seat was adjusted to a position far from the steering wheel, suggesting that Vasseur (who was five feet, three inches tall) was not the last person to drive the vehicle. Its rear view mirror was missing and its windshield was cracked. At 5:53 p.m. that day, Hamilton called Vasseurs home and left a message on the answering machine, stating: "This is Patrick. I just called to talk to Denise but I guess youre not there. Talk to you later." Later that evening, Hamilton called and told a coworker that he thought his call to Vasseurs answering machine gave him a "perfect story."
At about 2:00 a.m. on September 24, Hamilton withdrew more than $1,000 in cash from an ATM in Temecula, using three different bank cards. At about 6:15 p.m. that day, Hamilton checked into a Burlingame hotel and stayed there for two days. On September 26 Hamilton again withdrew more than $1,000 in cash, using three different bank cards.
On September 27 Hamilton was driving southbound on Highway 101 near Gilroy. After police activated their vehicles lights and siren, he accelerated, changed lanes, and drove about two miles until he approached stopped traffic. He then weaved erratically, spun (or "smoked") the cars tires, and crashed into two other vehicles. He was arrested as he attempted to leave his car and stated: "Did you know it was me? I didnt kill anyone. It was an accident. I was on my way down to see the Sheriff." His vehicle contained a drawing of a map to Vasseurs home, a piece of paper bearing her e-mail address, a piece of paper bearing her address and telephone number, and his passport.
In a telephone call to coworker Kelly Foley the night of September 22, Hamilton described how he became upset after listening to Vasseur and her husband "getting romantic" and admitted he flagged down Vasseur that morning (September 22). Hamilton said that Vasseur told him to leave her alone and that she did not want to see him again. He said that after she "went off on him" he strangled her and dumped her body in the desert. In a telephone call to his brother on September 24, Hamilton described his surreptitious viewing of Vasseur and her husband, but claimed Vasseur drove to his house the next morning. Hamilton said he confronted her with what he had seen and then "hurt" her. In a telephone call to coworker David Moore the evening of September 25, Hamilton claimed he strangled Vasseur by accident. He said in an attempt to make Vasseur stop pushing him out of her car, he grabbed her neck with his hands and pushed her away from him. In so doing, he felt a pop that surprised him. He told Moore he did not intend to hurt Vasseur.
A subsequent police investigation showed no activity on Vasseurs financial, credit card, or telephone accounts after September 21. She was never seen again. After Hamilton was arrested, he led police to various sites where he claimed he dumped her body. However, those sites did not contain her body.
An information charged Hamilton with the murder of Vasseur. He initially pleaded not guilty to the charge. On November 15, 2001, a court trial began and during a break in the testimony of the first witness, Hamilton withdrew his not guilty plea and pleaded guilty to second degree murder, waiving his right to appeal. On December 14 the court was advised Hamilton wished to withdraw his plea. The court appointed counsel to represent him on that matter. On February 21, 2002, Hamilton filed a motion to withdraw his guilty plea on the ground he was denied effective assistance of counsel.
He also claimed his guilty plea was the product of duress, but does not raise that issue on appeal.
He asserted his retained counsel did not investigate possible meritorious defenses. He argued his counsel did not investigate any mental health defenses and the manner and cause of Vasseurs death (e.g., whether it was accidental and/or whether her preexisting medical conditions may have contributed to her death or show how her death might have occurred). Hamilton asserted that had he received effective assistance of counsel, he would not have pleaded guilty to the second degree murder charge and would have proceeded to trial.
After an evidentiary hearing, the trial court denied the motion and sentenced Hamilton to an indeterminate term of 15 years to life.
Hamilton timely filed a notice of appeal and the trial court granted his request for a certificate of probable cause.
DISCUSSION
I
Ineffective Assistance of Counsel in Pleading Guilty
"Plea bargaining and pleading are critical stages in the criminal process at which a defendant is entitled, under both the Sixth Amendment to the federal Constitution and article I, section 15 of the California Constitution, to the effective assistance of legal counsel. [Citations.]" (In re Resendiz (2001) 25 Cal.4th 230, 239.) "It is well settled that where ineffective assistance of counsel results in the defendants decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea." (In re Alvernaz (1992) 2 Cal.4th 924, 934.)
In Hill v. Lockhart (1985) 474 U.S. 52, the Supreme Court held that the two-part test pronounced in Strickland v. Washington (1984) 466 U.S. 668 applies to challenges to guilty pleas based on ineffective assistance of counsel, noting the second part of that test is modified. (Hill, supra, at pp. 58-59.) Under Hills application of the Strickland test to those challenges to guilty pleas, a defendant has the burden to prove by a preponderance of the evidence that: (1) his or her counsels representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) he or she suffered prejudice from counsels deficient performance, i.e., "there is a reasonable probability that, but for counsels errors, he [or she] would not have pleaded guilty and would have insisted on going to trial." (Hill, supra, at p. 59; In re Resendiz, supra, 25 Cal.4th at pp. 239, 248-254; In re Alvernaz, supra, 2 Cal.4th at p. 934.) Hill noted:
"In many guilty plea cases, the `prejudice inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error `prejudiced the defendant by causing him to plead guilty rather than to go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. . . . As we explained in Strickland v. Washington, supra, these predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the `idiosyncrasies of the particular decisionmaker. [Citation.]" (Hill, supra, at pp. 59-60, italics added.)
A defendants assertion that he or she would not have pleaded guilty had the defendant received effective assistance of counsel "`must be corroborated independently by objective evidence. [Citation.]" (In re Resendiz, supra, at p. 253, quoting In re Alvernaz, supra, at p. 938.)
To the extent People v. Frierson (1979) 25 Cal.3d 142, 161, cited by Hamilton, omits the requirement that prejudice from counsels deficient performance be shown, it was effectively overruled by Strickland, Hill, Alvernaz, and Resendiz, all of which clearly require a showing of prejudice.
II
Trial Courts Denial of Hamiltons Motion to Withdraw His Guilty Plea
Hamilton contends the trial court erred by denying his motion to withdraw his guilty plea in support of which he argued he received ineffective assistance of counsel.
A
At the evidentiary hearing on Hamiltons motion to withdraw his guilty plea, Hamilton presented the testimonies of two of the retained attorneys who represented him until he pleaded guilty. They confirmed they did not retain any psychiatrist or other mental health expert to examine Hamilton. They also confirmed they did not retain any pathologist or other medical expert regarding the possibility that Vasseurs death was accidental or caused by carotid sinus reflection. Hamilton also presented the testimonies of his mother, a courtroom observer and friend, and a sheriffs deputy. He also presented the expert testimony of Mary Knockeart, a criminal defense attorney with experience in 12 homicide cases. Knockeart testified that Hamiltons retained counsel were ineffective by not retaining a psychiatrist or psychologist to examine Hamilton to determine whether there was a possible mental health defense or other information that could be used to negotiate a more favorable plea bargain. She testified that such an examination "might have revealed some information about Mr. Hamiltons psyche that could have assisted in presenting that defense [i.e., voluntary manslaughter based on heat of passion]. Again, its hard to know unless its ever done." (Italics added.) On cross-examination, she admitted she did not know what the results of an examination of Hamilton would be. Knockeart also testified that Hamiltons retained counsel were ineffective because defense counsel in all homicide cases should contact a pathologist to discuss the cause of the victims death and should not rely solely on cross-examination of the prosecutors pathologist. However, on cross-examination, she admitted she did not know what the results of any discussion with a pathologist would be regarding the cause of Vasseurs death. She also testified that there was no practical difference between first degree and second degree murder because defendants convicted of those offenses are not currently being granted parole. She admitted she did not speak with Hamilton before testifying at the hearing.
In denying Hamiltons motion to withdraw his guilty plea, the trial court stated:
"The defense in this case has the burden of proving by clear and convincing evidence that they are entitled to withdraw the plea, and I find as a matter of fact and as a matter of law that they have failed to sustain that burden. [& para;] . . . [¶]
". . . Im mindful that [Knockeart] indicated that its ineffectiveness of counsel to fail to properly inquire into a mental health defense or mitigation by failing to consult with and/or retain a psychologist or psychiatrist. This court is unable to take away its own experience as a trial judge hearing psychiatric and psychological expertise in the area of mitigation and minimizing a crime on the basis of a mental health defense, and in the absence of any history of mental illness, counseling, treatment, therapy, it would have been impossible to convince this court that there was a sudden onset of some spontaneous mental condition that rendered Mr. Hamilton to act in a certain way.
". . . [Were the decision by Hamiltons retained counsel not to employ a mental health expert] below the standard of care, would the result of the proceeding have been different? There is no evidence before me that in fact that was the case. There is no evidence that were mental health professionals consulted the outcome would have been any different."
Accordingly, the trial court denied Hamiltons motion.
B
Section 1018 provides in part:
"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. . . . This section shall be liberally construed to effect these objects and to promote justice." (Italics added.)
"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." (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) "To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his [or her] free judgment. [Citations.]" (Huricks, supra, at p. 1208.) A guilty plea may not be withdrawn simply because the defendant changed his or her mind. (Nance, supra, at p. 1456.)
C
In moving to withdraw his guilty plea, Hamilton asserted he was denied effective assistance of counsel because his retained counsel did not properly investigate any possible mental health defenses or the manner or cause of Vasseurs death (e.g., accidental or in heat of passion). Therefore, the section 1018 good cause asserted by Hamilton for withdrawal of his guilty plea was ineffective assistance of counsel. To show ineffective assistance of counsel, Hamilton had the burden to prove to the trial court that: (1) his counsels representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) he suffered prejudice from counsels deficient performance, i.e., "there is a reasonable probability that, but for counsels errors, he would not have pleaded guilty and would have insisted on going to trial." (Hill, supra, 474 U.S. at p. 59; In re Resendiz, supra, 25 Cal.4th at pp. 239, 248-254; In re Alvernaz, supra, 2 Cal.4th at p. 934.)
Considering the record in this case, we conclude the trial court did not abuse its discretion by denying Hamiltons section 1018 motion because there is insufficient evidence to support a finding that he was prejudiced by his counsels purported deficient performance. Hamilton did not present any evidence showing there was a reasonable probability he would not have pleaded guilty had his counsel adequately performed. Although Hamilton asserted his counsel should have retained a psychiatrist or psychologist to investigate the possibility of a mental health defense (e.g., that he acted in heat of passion), he did not present any evidence showing whether a psychiatrist or psychologist, if retained, would have concluded Hamilton acted in the heat of passion or had some other mental health defense to the murder charge. On the contrary, Hamilton merely speculates that a mental health expert, if retained, would have provided him with a favorable opinion and therefore he would not have pleaded guilty to the second degree murder charge. This case is similar to People v. Geddes (1991) 1 Cal.App.4th 448, in which we concluded the defendant did not show his counsel provided ineffective assistance by not arranging a psychiatric examination that might have supported a plea of not guilty by reason of insanity. (Id. at pp. 453-454.) Because the defendant did not provide any evidence to show a psychiatric examination would have supported that plea, the defendant did not sustain his burden to show he was prejudiced by his counsels purported deficient performance. (Id. at p. 454.) In Geddes, we stated:
"[A] defendant alleging ineffective assistance based on counsels failure to obtain favorable evidence must use a petition for writ of habeas corpus to demonstrate the evidence [that] would have been obtained and, to the extent possible, its effect. [Citation.] . . . Here, in contrast, there is no evidence to indicate that a psychiatric examination would have supported an NGI plea. Equally important, there is nothing to indicate any psychiatric information would have caused Geddes to change his mind and agree to enter an NGI plea." (Id. at p. 454.)
Because Hamilton did not show he would have obtained a favorable opinion from a mental health expert or, given that opinion, he would not have pleaded guilty, he did not show he was prejudiced by his counsels purported ineffective assistance by not retaining a mental health expert to examine him. Knockeart testified that an examination of Hamilton by a mental health expert might have produced a favorable opinion, noting she could not know whether a voluntary manslaughter argument could be made unless a mental health examination were performed. However, she did not testify that an examination would have produced a favorable opinion. On cross-examination, she admitted she did not know what the results of any such examination of Hamilton would be. Furthermore, Hamilton did not testify at the hearing on his section 1018 motion regarding whether he would have pleaded guilty had he been examined by a mental health expert and received a favorable opinion.
Although Hamilton criticizes the trial court for referring to its past experience considering testimonies of mental health experts "in the area of mitigation and minimizing a crime on the basis of a mental health defense," the court properly did so in objectively evaluating the likely outcome of a trial had his counsel not performed deficiently. (Hill v. Lockhart, supra, 474 U.S. at pp. 59-60.) In so doing, the trial court concluded: "[I]t would have been impossible to convince this court that there was a sudden onset of some spontaneous mental condition that rendered Mr. Hamilton to act in a certain way." The court did not rely on evidence admitted in other cases, but rather made an objective determination regarding the likely outcome of a trial had Hamiltons counsel not deficiently performed as alleged. (Ibid.)
Similarly, although Hamilton asserted his counsel should have consulted a pathologist regarding the manner or cause of Vasseurs death (e.g., accidental, or caused by carotid sinus reflection), he did not present any evidence showing whether a pathologist, if consulted, would have concluded Vasseurs death was accidental or otherwise provided an opinion that would support a verdict less than second degree murder (e.g., voluntary manslaughter based on a heat of passion theory). On the contrary, Hamilton merely speculates that a pathologist, had one been consulted, would have provided him with a favorable opinion and therefore he would not have pleaded guilty to the second degree murder charge. Because Hamilton did not show he would have obtained a favorable opinion from a pathologist or, given that opinion, he would not have pleaded guilty, he did not show he was prejudiced by his counsels purported ineffective assistance by not consulting a pathologist regarding the manner and cause of Vasseurs death. On cross-examination, Knockeart admitted she did not know what the results of any discussion with a pathologist would be regarding the manner or cause of Vasseurs death. Furthermore, Hamilton did not testify at the hearing on his section 1018 motion regarding whether he would have pleaded guilty had his counsel consulted a pathologist and received a favorable opinion regarding the manner or cause of Vasseurs death.
Hamilton also did not show that his counsels recommendation regarding a guilty plea to the second degree murder charge likely would have changed had his counsel retained a mental health expert to examine him or consulted a pathologist regarding the manner and cause of Vasseurs death. (Hill v. Lockhart, supra, 474 U.S. at p. 59.) The assessment whether Hamiltons counsel likely would have changed his recommendation "depend[s] in large part on a prediction whether the evidence likely would have changed the outcome of a trial." (Ibid.) That prediction of the outcome of a possible trial is made objectively. (Id. at pp. 59-60.) In the circumstances of this case, Hamilton did not show it was likely he would have received a more favorable outcome at trial (and therefore his counsel likely would have recommended against pleading guilty to the second degree murder charge) had his counsel retained a mental health expert to examine him or consulted a pathologist regarding the manner and cause of Vasseurs death. (Ibid.)
We conclude the trial court did not apply the wrong standard of prejudice. Its consideration of the probable outcome of a trial had Hamiltons counsel not performed deficiently was proper under Hill. (Hill v. Lockhart, supra, 474 U.S. at pp. 59-60.) Absent compelling proof to the contrary, we presume the trial court applied the proper standard of prejudice. (Cf. People v. Nance, supra, 1 Cal.App.4th at p. 1456; People v. Mack (1986) 178 Cal.App.3d 1026, 1032.)
Therefore, Hamilton did not carry his burden of proof to show to the trial court that he was prejudiced by his counsels purported deficient performance. (Id. at pp. 58-59; In re Resendiz, supra, 25 Cal.4th at pp. 239, 248-254; In re Alvernaz, supra, 2 Cal.4th at p. 934.) Because Hamilton did not show the required prejudice, we need not address the remaining issue of whether his counsels representation fell below an objective standard of reasonableness under prevailing professional norms. (Hill, supra, at p. 60 ["We find it unnecessary to determine whether there may be circumstances under which erroneous advice by counsel as to parole eligibility may be deemed ineffective assistance of counsel, because in the present case we conclude that petitioners allegations are insufficient to satisfy the . . . requirement of `prejudice."]; In re Resendiz, supra, at pp. 239, 248-254; In re Alvernaz, supra, at p. 934.) The trial court did not abuse its discretion by denying Hamiltons section 1018 motion to withdraw his guilty plea. (People v. Nance, supra, 1 Cal.App.4th at p. 1456.)
III
Waiver
Because we decide this appeal on other grounds, we do not address the Peoples assertion that, in pleading guilty and waiving his right to appeal generally, Hamilton waived his right to appeal the trial courts purported error in denying his motion to withdraw his guilty plea.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., and NARES, J.