From Casetext: Smarter Legal Research

People v. Henderson

California Court of Appeals, Fourth District, Second Division
Mar 17, 2008
No. E043092 (Cal. Ct. App. Mar. 17, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. DALE DUANE HENDERSON, Defendant and Appellant. E043092 California Court of Appeal, Fourth District, Second Division March 17, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

APPEAL from the Superior Court of Riverside County. Michael S. Hider, Judge. (Retired judge of the Merced Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Super.Ct.No. SWF015189.

Linda Acaldo, 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, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

RICHLI, J.

Defendant and appellant Dale Duane Henderson appeals from a trial court’s order denying his motion to withdraw his guilty plea. For the reasons set forth below, we shall affirm the trial court’s order.

I

FACTUAL AND PROCEDURAL HISTORY

Since defendant pled guilty, the facts are taken from the preliminary hearing transcript and the probation report.

On the evening of January 29, 2006, officers from the Riverside County Sheriff’s Department responded to a report of child abuse at a restaurant and at a hotel across the street from the restaurant.

The people who called the police were at the restaurant. They told the officers that defendant and his children, a four-year-old boy and six-year-old girl, were dining at the restaurant when the boy started “acting up.” Defendant took the boy outside and left the girl in the restaurant. The boy and defendant returned 20 minutes later; the child was upset and had a red mark across the left side of his face.

Other officers went to a room in the hotel to conduct a welfare check of the boy. Defendant invited the officers into the room and stated that his son was asleep. The officers observed a red mark on the boy’s face and ear, and similar markings on his arms, chest and back. Defendant stated that the boy sustained the injuries when he fell off his bicycle. A belt, which was consistent in size with the marks on the boy, was on the floor of the room.

The boy told the officers that defendant, his father, hit him with the belt. In addition to the red marks, the boy also had bruises on his buttocks and forehead in various stages of healing. The boy complained of pain. The children were taken to the hospital for evaluation where a doctor examined the boy. The doctor concluded that the injuries were consistent with being struck by a belt.

On April 7, 2006, defendant was charge by information as follows: (1) inhumane corporal punishment to a child resulting in injury under Penal Code section 273d, subdivision (a) (count 1); assault by means likely to produce great bodily injury under section 245, subdivision (a)(1) (count 2); and misdemeanor child endangerment under section 273a, subdivision (b) (count 3). It was also alleged as to count 1 that defendant personally inflicted great bodily injury on a child under the age of five under section 12022.7, subdivision (d); and as to counts 1 and 2, that defendant personally used a deadly or dangerous weapon under section 12022, subdivision (b)(1).

All further statutory references are to the Penal Code unless otherwise indicated.

On August 28, 2006, defendant pled guilty to all counts and admitted all the allegations. On April 12, 2007, defendant was sentenced to the low term of two years on count 1, and two concurrent years on count 2. The court also added one year for the special allegation under section 12022, subdivision (b)(1), and stayed the sentence on the other two enhancements alleged under section 12022, subdivision (b)(1). With regard to the section 12022.7, subdivision (d), allegation, the court imposed, but stayed, the low term of four years. The total term imposed was three years.

Defendant filed a notice of appeal on April 30, 2007. On the same date, a certificate of probable cause was granted by the sentencing court.

II

DISCUSSION

The Trial Court Did Not Abuse Its Discretion in Denying Defendant’s Motion to Withdraw His Plea

Defendant contends that the trial court abused its discretion in denying his motion to withdraw his guilty plea. Defendant claims he did not enter his plea knowingly and voluntarily because his attorney misinformed him that a guilty plea would be the fastest way to regain custody of his children and that his chances of receiving probation were good.

A. Background

On August 28, 2006, defendant entered guilty pleas and admissions to the charges and allegations in this case. The court indicated that there was a seven-year lid on this case. The court told defendant that the most he could get at sentencing was seven years in prison. Defense counsel indicated that he had discussed the negatives and positives with defendant, and that he hoped the court would give “serious consideration” to granting probation. Counsel acknowledged that a grant of probation would be contingent upon a positive probation report. Defendant stated that he understood that there were no promises as to his sentence, and the sentence would be based upon what the court believed was an appropriate decision. Thereafter, defendant pled guilty to all counts and admitted the enhancement allegations.

On October 2, 2006, after receiving and reviewing the probation report and recommendations, which recommended a prison commitment, the trial court indicated that it did not believe this was an unusual case. The trial court, therefore, stated that defendant was statutorily ineligible for probation. Defense counsel indicated that defendant wanted to file a motion to withdraw his guilty plea. A public defender was appointed to represent defendant on the motion to withdraw his plea.

On January 19, 2007, defendant filed a motion to withdraw his plea. In the motion, defendant argued that his plea was involuntary because it was based on the erroneous advice of counsel that a guilty plea would be the fastest way for defendant to regain custody of his children. In his declaration, defendant stated that prior to entering his pleas, his counsel never informed defendant that the plea could result in the loss of the custody of his children. Instead, his counsel informed defendant that a guilty plea would be the fastest way to get his children back. Defendant also stated that a family court had declared his children dependants of the court and removed the children from defendant’s custody. Defendant would not have pled guilty had he known it would result in the loss of the custody of his children. On January 24, 2007, the People filed an opposition to the motion, which included a transcript of the plea hearing and the probation report.

On March 20, 2007, a hearing was held on defendant’s motion to withdraw his plea. Defendant testified that he spoke with his defense counsel before he entered his guilty pleas. Defense counsel told him the fastest way to reunify with his children would be to plead guilty, which would be the fastest way to get out of custody. Defendant testified that counsel never informed defendant that a guilty plea could result in the loss of custody of his children.

Attorney Gloria Rincones testified that she represented defendant in his case with the Department of Public Social Services. She spoke to defense counsel in April 2006. Defense counsel asked Ms. Rincones if she had any evidence that would help defendant in the criminal case. Ms. Rincones may have told defense counsel that defendant would have to be out of custody to get his children back. She, however, could not recall the conversation.

Defense counsel testified that he represented defendant in this case. He spoke with defendant at every court appearance and extensively at the jail on at least one or two occasions. Defendant was concerned about being able to reunify with his children, particularly his son. They discussed the potential outcomes of both a plea and trial on the charges. Defense counsel informed defendant that the fastest way to reunification with his children would be a guilty plea, but counsel did not guarantee defendant that it would happen. Defense counsel advised defendant, after speaking with Ms. Rincones, that possible reunification depended in part on whether defendant was in custody or whether he was sentenced to probation. Ms. Rincones told defense counsel that a plea to a felony would not be good. However, defense counsel believed defendant’s chances of being convicted at trial were very high. Therefore, a felony conviction was likely in any event. Attorney Rincones told defense counsel that defendant would have to be out of custody in order to be reunified with his children. Defense counsel believed that defendant’s best chance at reunification was a plea and a grant of probation. He informed defendant that the probation officer’s recommendation in this case was important and they discussed defendant’s interview with probation.

After hearing the evidence and arguments of counsel, the trial court concluded that defendant desperately wanted to avoid termination of his parental rights, and believed that the only way to accomplish this was to plead guilty and hope for a grant of probation. Defendant took his best chance and lost. Therefore, the trial court denied defendant’s motion.

B. Analysis

“A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. [Citations.] ‘[Penal Code] 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 defendant’s 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.)

Indeed, courts have rejected as good cause such claims as psychological pressure from counsel, including bad tactical advice (People v. Urfer (1979) 94 Cal.App.3d 887, 892); unforeseen changes in circumstances that make the plea bargain less attractive to the defendant (People v. Powers (1984) 151 Cal.App.3d 905, 917); mistaken expectations of a lenient sentence, even if a result of good faith, but wrong, advice from counsel (People v. Fratianno (1970) 6 Cal.App.3d 211, 221-222, and cases cited therein) or even if it is the result of a good faith reliance upon nonbinding, nonmisleading remarks of the court or prosecutor (People v. Spears (1984) 153 Cal.App.3d 79, 87-88; People v. Vento (1989) 208 Cal.App.3d 876, 879-880); and a mistaken belief in the strength of the People’s case (People v. Watts (1977) 67 Cal.App.3d 173, 181-183).

“‘When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] On appeal, the trial court’s decision will be upheld unless there is a clear showing of abuse of discretion. [Citations.]’ [Citation.] ‘Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.’ [Citation.]” (People v. Weaver, supra, 118 Cal.App.4th at p. 146.)

“Abuse of discretion is established if, considering all of the circumstances before it, the trial court exceeded the bounds of reason. [Citation.] Of course, ‘[t]he scope of discretion always resides in the particular law being applied; action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an abuse of discretion.’” (People v. Parmar (2001) 86 Cal.App.4th 781, 792-793.)

In this case, we cannot say that the trial court abused its discretion in denying defendant’s motion. At the hearing, the court stated, “[T]he Court is absolutely convinced, unequivocally, that there never ever was any discussion among any of the germane people in this case that [defendant] would get probation. [Defendant] knew very well what a seven-year lid meant. We discussed at length what a seven-year lid meant.” The court then went on to state, “[Defendant] took a chance. It was a gamble that he took that by pleading guilty, he might be placed on probation, and that might lead him to reunification with his children.” We agree with the trial court.

The evidence presented at the hearing on the motion to withdraw showed that defendant wanted to maintain custody of his children. Defendant, along with his counsel, believed that a guilty plea was defendant’s best chance to obtain a grant of probation and to possibly reunify with his children. This was a fair assessment because defense counsel testified that the probability of defendant being convicted by a jury was high. The court even commented, “I can assure you that I saw the pictures, and there were belt marks left on this four-year-old boy. I think a jury could very easily find great bodily injury.” Given the evidence against him, defendant decided to plead guilty and hope for a grant of probation. In denying the motion to withdraw, the trial court stated, “I think [defendant] gambled, he lost, and that’s where we are today. [¶] I don’t see any rationale there for allowing [defendant] to withdraw his plea.”

In sum, the evidence against defendant was strong. Defendant wanted to reunify with his children. Therefore, defendant took a chance and pled guilty—hoping to speed up the process and receive probation. Defendant, however, knew that he could receive prison time. Defendant was never promised, by his counsel or the court, that he would receive probation. When the trial court denied probation, defendant changed his mind and wanted to withdraw his plea. The trial court thoroughly reviewed the evidence presented in support of defendant’s motion to withdraw his plea and thoughtfully made its decision, summarized above. In view of the foregoing, defendant has failed to show “that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316.)

III

DISPOSITION

The order denying defendant’s motion to withdraw his guilty plea is affirmed.

We concur: McKINSTER, Acting P. J., KING, J.


Summaries of

People v. Henderson

California Court of Appeals, Fourth District, Second Division
Mar 17, 2008
No. E043092 (Cal. Ct. App. Mar. 17, 2008)
Case details for

People v. Henderson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DALE DUANE HENDERSON, Defendant…

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

Date published: Mar 17, 2008

Citations

No. E043092 (Cal. Ct. App. Mar. 17, 2008)