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People v. Harrod

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 31, 2012
D058902 (Cal. Ct. App. Jan. 31, 2012)

Opinion

D058902

01-31-2012

THE PEOPLE, Plaintiff and Respondent, v. JAVON DEANDRE HARROD, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. RIF143634 Super. Ct. No. RIF153032)

APPEAL from a judgment of the Superior Court of Riverside County, Roger E. Luebs, Judge. Affirmed.

In February 2009, in a second amended information in case No. RIF143634, Javon Deandre Harrod was charged, along with three codefendants, with 10 felony offenses. In counts 1 through 3, Harrod was charged with attempted murder in violation of Penal Code sections 664 and 187, subdivision (a). (All further statutory references are to the Penal Code.) In counts 4 through 6, Harrod was charged with assault with a firearm in violation of section 245, subdivision (a)(2). In counts 7 through 9, he was charged with assault by means of force likely to produce great bodily injury in violation of section 245, subdivision (a)(1). In count 10, Harrod was charged with actively participating in a criminal street gang in violation of section 186.22, subdivision (a). In counts 1 through 3 it was alleged that at least one principal in the commission of those offenses used a firearm causing great bodily injury or death to a non-accomplice within the meaning of section 12022.53, subdivisions (d) and (e). In counts 1 through 9 it was alleged that the crimes were committed for the benefit of and in association with a criminal street gang within the meaning of section 186.22, subdivision (b).

In April 2010 a separate information was filed in case No. RIF153032, charging Harrod with dissuading a witness from giving testimony in violation of section 136.1, subdivision (a)(1). In May 2010 the court granted the People's motion to consolidate that charge with the charges in case No. RIF143634.

In May 2010 Harrod pleaded guilty to counts 1 through 5 from case No. RIF143634, with counts 1 through 3 being reduced from attempted murder to assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), and counts 4 and 5 being changed from assault with a firearm to assault by means of force likely to produce to great bodily injury (§ 245, subd. (a)(1)). Harrod also pled guilty to the dissuading-a-witness charge in case No. 153032, along with two new section 245, subdivision (a)(1) charges that were added to that case. Harrod admitted the section 186.22, subdivision (b) gang allegation attached to count 1. All remaining counts from case No. RIF143634 were dismissed, along with all the firearm and remaining gang allegations. Pursuant to the plea agreement, it was stipulated that 15 years was the maximum prison term that could be imposed.

In August 2010 Harrod moved to withdraw his guilty plea. That motion was denied.

In September 2010, in accordance with the negotiated agreement, the court sentenced Harrod to 15 years in state prison.

Harrod appeals, asserting the court erred in denying his motion to withdraw his guilty plea because it was the product of undue pressure by the court and defense counsel and was therefore involuntary. We affirm.

FACTUAL BACKGROUND

Because this appeal follows a guilty plea, we take the facts from the preliminary hearing transcript. Additionally, we only discuss the facts briefly because this appeal concerns only Harrod's motion to withdraw his guilty plea.

On January 7, 2008, four to six men, including Stuart Torres, Antoine Jacobs, Kenneth Hendricks, Dionte Calloway, and Anthony Davis, all affiliated with a gang called "Sex, Cash, Money," were walking in Moreno Valley. Three cars pulled up alongside them and an occupant yelled "[s]ex fags" or a similar phrase of disrespect. The occupants of the vehicles, who were affiliated with the rival "Edgemont" gang, exited the cars and fought with the men who were walking.

The Edgemont gang knocked Davis to the ground and stomped on him. One of the Edgemont gang members, Barry Tolbert, went to his car and retrieved a .38-caliber handgun. He walked toward Jacobs and Davis and fired the gun. A bullet struck Davis's wrist and his chin.

Torres identified Tolbert as the shooter and Harrod as one of the individuals fighting with either Davis or Jacobs.

While Harrod was awaiting trial, Torres was arrested and placed in jail in the same area as Harrod. Harrod showed him police reports reflecting the information Torres had given police. Harrod told Torres he would be able to leave that area of the jail unharmed if he changed his testimony at Harrod's trial to say that Harrod had not been present at the fight.

DISCUSSION

A. Background

Prior to taking Harrod's plea, the court asked Harrod whether he had thoroughly discussed the matter with counsel, Harrod responded, "Somewhat." When the court expressed concern about that answer, Harrod changed his response to, "A lot." The court then told Harrod that, based upon the charges, if convicted he would likely receive a life sentence. The court also stated the following:

THE COURT: I don't know the details about the case. I can't tell you if it is a weak case or a strong case. But all I know is if I were a young man of your age, and someone told me you could go to prison for life if you lose, or you could go for a determin[ate] term of 15 years and with credits you would be getting something like seven years."

Defense counsel corrected the court that it would be five and a half years. Harrod then expressed his understanding that until he got to court that morning, he thought the offer was already "off the table." The court responded by saying, "Well, then you might feel like the heavens have opened and a gift has been dropped into your lap today."

The court then stated:

"You may be an innocent man. And it may be it is in your interest, you can talk to your lawyer obviously as much as you want. It might be in your interest to fight for an acquittal. I wouldn't want to discourage you from that, but I think you really do have to think about the choices. . . . [¶] You really have to be more serious. You have to act like a man and think about this. Not like a kid, you know."

Thereafter, one of Harrod's defense counsels indicated that Harrod was refusing to talk to him and did not believe him when he told Harrod what the law was. That defense counsel requested that he be allowed to talk to his other defense counsel further, to which the court agreed. After a recess was taken, the parties indicated that Harrod had accepted the plea agreement.

Harrod filled out, initialed and signed a written plea agreement. He initialed a section entitled "Defendant's Statement," which included the language, "No one has made any threats to me or anyone close to me, or placed any pressure of any kind on me in order to make me plead guilty."

The court also engaged in a lengthy dialogue with Harrod before taking his pleas:

"The Court: Mr. Javon Harrod. I just had a discussion in your presence about your plea bargain, which is one that requires you to serve 15 years in prison. Of course, you would get conduct credits here locally and when you get to prison, which would reduce your actual custody time substantially, provided you obey the prison rules and things like that. [¶] Is that basically what you want do today, sir?
"The Defendant: Yeah.
"The Court: And I notice that your mother was here earlier today. And I see her in the courtroom. And I gave you some time to chat with her. Did you get to talk about your plans in this case with your mother?
"The Defendant: Yes, sir, and I thank you."

The court then went over the various aspects of the negotiated agreement and verified that Harrod understood all aspects of the agreement and the consequences of pleading guilty. Thereafter, the following discussion took place between the court and Harrod:

"The Court: I'm going to give the form back to you so you can initial this box here about having to register as a gang offender. It explains that consequence to you, and explains a bunch of other consequences. Did you understand all the consequences?
"The Defendant: Yeah. [¶] . . .
"The Court: Has anyone threatened you or a member of your family or someone close to you to get you to plead guilty?
"The Defendant: No.
"The Court: Has anyone made other promises to you other than what we have talked about here in open court today to get you to plead guilty? For example, have you received some secret promise from the prosecutor to get you to plead guilty?
"The Defendant: No.
"The Court: Has the defense attorney that you've been working with [] given you any secret promises?
"The Defendant: No.
"The Court: And sir, before you decide to accept this plea, I spent some time talking to you where I indicated to you that I was very concerned that you were missing an opportunity to receive this plea
bargain. And that you were exposing yourself to the possibility of life imprisonment based on the charges. Do you remember that conversation we had?
"The Defendant: Yeah.
"The Court: I didn't do that to pressure you, to make you feel uncomfortable. I made those comments because I wanted to make sure you understood what your risks were. Do you now feel you understand all your risks?
"The Defendant: Yeah.
"The Court: Do you feel I pressured you too much?
"The Defendant: Yeah.
"The Court: You think I pressured you too much? Well I don't want you to act under pressure from me. I would rather you act freely and voluntarily. This [is] your choice, your decision. Is it your free choice, sir?
"The Defendant: Yeah. [¶] . . .
"The Court: Do you feel like I twisted your arm?
" The Defendant: No.
"The Court: Do you think I was trying to help you think about this clearly?
"The Defendant: Yeah." (Italics added.)

Harrod went on to plead guilty according to the terms of negotiated agreement without any indication that he was doing so involuntarily.

However, on the date set for sentencing, he moved to withdraw his plea, claiming he was under duress when he pled guilty and that he was not present at the incident. During that hearing, the defense counsel who was present at the plea proceedings claimed that Harrod was confused on that day and all of the details of the plea were not clearly reviewed or discussed with him. Harrod also made a statement to the court: "And I really want to tell you at the time I did take that deal, I really was under a lot of duress. I really wasn't there totally mentally. And I rather—I know the risk I'm taking, but I would rather fight for my innocence, as I wrote, I had nothing to do with it."

The court denied the motion, explaining:

"The Court: . . . I don't believe he was under any particular pressure, except the normal pressure that's associated with taking very serious charges. And all the Court did during the proceeding leading up to the plea, was to give the defendant plenty of time to talk with his attorney and with his family members and people[] whose advice he might want to consider. He seemed to me to be going through the process fairly carefully, albeit reluctantly. Nobody wants to accept a plea that's going to send them to prison for a significant period of time. [¶] So, the fact that it was difficult for him to make that decision doesn't mean that he was operating under any particular duress. I took great care to inquire about his state of mind that day, and to make sure he wasn't confused, and he understood what he was doing. And in my judgment, this is simply a case of the defendant now wishing, for whatever reason, to make another decision. That's simply not a basis for withdrawing his plea."

B. Analysis

A guilty plea may be withdrawn before judgment for good cause if shown by clear and convincing evidence. (§ 1018; People v. Cruz (1974) 12 Cal.3d 562, 566.) Good cause requires a showing "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 [or her] mind.' " (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208 (Huricks).) Buyer's remorse, "even if it occurs well before sentencing, is not sufficient to compel the exercise of judicial discretion to permit withdrawal of the plea of guilty." (People v. Knight (1987) 194 Cal.App.3d 337, 344.)

A defendant who claims he or she was "subject to 'overbearing duress' " to accept a plea must demonstrate it was more "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; cf. People v. Sandoval (2006) 140 Cal.App.4th 111, 126 [defendant accepted plea after defendant's life was threatened by codefendant].) To withdraw a plea it must have been involuntary, or "done without choice or against one's will ." (People v. Knight, supra, 194 Cal.App.3d at p. 344; see also People v. Urfer (1979) 94 Cal.App.3d 887, 892 (Urfer) [explaining that unwillingness or reluctance was "not [synonymous] with an involuntary act" (fn. omitted)].)

Courts recognize that "[l]awyers and other professional[s] often persuade clients to act upon advice which is unwillingly or reluctantly accepted" (Urfer, supra, 94 Cal.App.3d at p. 892) and that it "would be a difficult and sensitive task" for a reviewing court to delineate between "a defense attorney's aggressive but proper advice to plead guilty and oppressive conduct leading to an involuntary plea." (People v. Weaver ( 2004) 118 Cal.App.4th 131, 146 (Weaver).) In Urfer the court determined that defendant's reluctance to follow the advice of his attorney was not a " 'factor overreaching defendant's free and clear judgment.' " (Urfer, supra, 94 Cal.App.3d at p. 892.)

We review the trial court's ruling on the motion for abuse of discretion, and we adopt the court's factual findings if substantial evidence supports them. (People v. Wharton (1991) 53 Cal.3d 522, 585.) Abuse of discretion is found only if the trial court has exercised its discretion "in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice." (People v. Shaw (1998) 64 Cal.App.4th 492, 496.)

The record amply supports the court's denial of Harrod's request to withdraw his guilty plea. As the court noted, it took great care, prior to the plea being accepted, to insure that he understood what he was entering into, what the risks of going to trial were, and the consequences of entering into the negotiated agreement. When Harrod made one statement, in response to the court's question, that he felt pressured, the court insured that he did not feel like his arm was being "twisted," that he was making the decision freely and his choice to plead guilty was his decision.

Upon this record, the most that Harrod can show is that he was only subject to the normal pressure any individual might be under in agreeing to a 15-year prison sentence. Moreover, the fact that Harrod may have been "reluctant" to plead guilty does not equate with an individual who does so "involuntarily." (People v. Hunt (1985) 174 Cal.App.3d 95, 103.)

In asserting that the court abused its discretion in denying Harrod's motion to withdraw his plea, he relies on Weaver, supra, 118 Cal.App.4th at pages 149-150, a case in which the Court of Appeal reversed a denial of a motion to withdraw a plea based upon the actions of the trial judge during the plea negotiations. However, that case is readily distinguishable.

In that case, the Court of Appeal chastised the trial court for its actions that "seemed to fill the role of judge, jury, defense counsel, prosecutor, psychiatrist, social worker, and victim's advocate." (Weaver, supra, 118 Cal.App.4th at p. 149.) In particular, the Court of Appeal noted the trial judge "went too far" (ibid.) when he expressed his opinion that the appellant would be convicted, advocated too strenuously on behalf of the victims, and concluded the crimes were the result of a "particular and dangerous mental disorder" (pedophilia). (Ibid..)

Unlike Weaver, the trial judge here did not express an opinion that Harrod was guilty, did not advocate on behalf of the victims, and did not make comments concerning Harrod personally. Rather, the judge emphasized that he did not know the strength of the case or whether Harrod was guilty. As the Court of Appeal in Weaver noted, "Judges can, in appropriate cases and in a reserved manner, play a useful part in [the negotiation] process." (Weaver, supra, 118 Cal.App.4th at p. 150.)

In sum, Harrod cannot show that the court abused its discretion in denying his motion to withdraw his guilty plea.

DISPOSITION

The judgment is affirmed.

NARES, Acting P. J. WE CONCUR:

HALLER, J.

AARON, J.


Summaries of

People v. Harrod

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 31, 2012
D058902 (Cal. Ct. App. Jan. 31, 2012)
Case details for

People v. Harrod

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JAVON DEANDRE HARROD, Defendant…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 31, 2012

Citations

D058902 (Cal. Ct. App. Jan. 31, 2012)