Opinion
F061025
11-17-2011
THE PEOPLE, Plaintiff and Respondent, v. PATRICK RONALD HOLLEY, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF129835A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John S. Somers, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Patrick Ronald Holley appeals from a judgment following his no contest plea. On appeal, Holley contends that the trial court abused its discretion when it denied his motion to withdraw his plea. He also argues that the trial court erred by staying a gang enhancement. The People concede the second claim of error and request a remand to allow the trial court to decide whether to strike the gang enhancement.
We affirm the court's order denying Holley's motion to withdraw his plea and remand to allow the trial court to determine whether to strike the gang enhancement.
FACTUAL AND PROCEDURAL HISTORIES
On January 6, 2010, the Kern County District Attorney filed a three-count information against Holley. He was charged with (1) first degree robbery in violation of Penal Code section 212.5, subdivision (a); (2) assault with a firearm in violation of section 245, subdivision (a)(2); and (3) criminal street-gang participation in violation of section 186.22, subdivision (a). With respect to counts 1 and 2, it was alleged that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and was a serious felony (§ 1192.7, subd. (c)). It was also alleged that Holley personally used a firearm (§§ 12022.53, subd. (b); 12022.5, subd. (a)). With respect to all counts, it was alleged that Holley had been convicted of a prior serious felony offense, which was also a "strike" under the three strikes law (§§ 667, 1170.12).
Although the court date stamp reads January 6, 2009, it is clear that the information was actually filed in 2010. The information was signed by the deputy district attorney on January 5, 2010, and it relates to a robbery alleged to have occurred on October 23, 2009.
Subsequent statutory references are to the Penal Code unless otherwise indicated.
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On May 11, 2010, after the trial had started, the parties reached a plea agreement. The People agreed to dismiss count 1 and amend the information to add count 4, second degree robbery (§ 212.5, subd. (c)), with the same special allegations that had been alleged with respect to count 1. Holley agreed to plead guilty or no contest to counts 2 through 4 with the understanding that he would be sentenced to no more than 20 years in prison.
The court addressed Holley: "You understand, Mr. Holley, if you enter a plea of no contest to the charges, which the Court will accept if that's your desire, the Court will make a finding of guilt for purposes of sentencing based on the entry of that no contest plea. Do you understand that, sir?" Holley responded, "Yes, sir. I understand." After explaining that the maximum punishment for the charges was 35 years in prison, the court stated, "And under this plea bargain you will do no more than 20 years in state prison. You understand that?" Holley responded, "Yes, sir." Holley entered a plea of no contest to counts 2 through 4 and admitted all the special allegations.
On September 3, 2010, Holley filed a motion to withdraw and change his plea pursuant to section 1018. Holley asserted that, at the time he entered his plea, he was not "stabilized/regulated on his psychiatric medications ...." As a result, he did not understand the consequences of his plea and did not enter into a knowing, intelligent waiver of his rights. Holley had documented mental health issues prior to being taken into custody in this matter and was prescribed various medications while in custody. In January 2010, he was given Depakote, used for bipolar disorder and seizures, and Celexa, an antidepressant. In February 2010, he was given Remeron, an antidepressant, in addition to Depakote and Celexa. From March 2010 through July 2010, he was given only Remeron; so, at the time he entered his plea on May 11, 2010, he was not receiving Depakote or Celexa.
In a supporting declaration, Holley stated his belief that he suffered from schizophrenia and bipolar disorder. He explained that he was not feeling well mentally or physically on the day he entered his plea. He declared, "I feel that I was not thinking straight and suffered an anxiety attack. I believe my medications or lack of proper medication made my thinking jumbled and scattered. I felt like my mind was in chaos. I believe that at the time I entered my plea, I truly did not understand or know what I was doing. [¶] I believe that if I had been properly medicated, I would have had a better understanding of what I was doing. If I had understood all that was going on, I would not have entered my no contest pleas."
The court heard Holley's motion on September 14, 2010. Holley testified on his own behalf. He said that the change in medications had an effect on him. He told the court, "I was just mostly boggled up in my head in different places, thinking all kinds of stuff." At the time he entered his plea, he "wasn't in [his] right state of mind," and he was confused. His attorney asked, "Do you feel that you understood what you were doing when you took the plea bargain of 20 years?" Holley responded, "Not at the time, no." Holley testified that, prior to being placed in custody, he was taking Depakine and another medication, the name of which he could not remember.
The court denied Holley's motion. The court observed, "It's certainly possible a psychiatric condition, problems with medication, could create such a state of mind that the defendant could not [understand] what he was doing and could overcome the exercise of his free judgment, but the Court does not find that to be the case in this particular situation." The court reasoned that the plea agreement was "somewhat complicated," and it was clear that, at the time he entered the plea, Holley understood all the court's questions. "All of the answers given [by Holley] were totally appropriate to the questions that were asked, and given that the situation involved—clearly involved some reasonably sophisticated understanding of the situation, the Court does not find that it has been demonstrated by the required standard that Mr. Holley did not know what was taking place at the time and that anything, whether it be medication, his psychiatric condition or anything else, overcame his free exercise of his judgment such that he did not freely, voluntarily, and intelligently waive his rights nor that he knew what he was doing."
The court sentenced Holley to a fixed term of 20 years in prison. The court struck the prior "strike" pursuant to section 1385. Holley received the upper term of five years for the robbery charge (count 4), with a 10-year enhancement for personally using a firearm and a five-year enhancement for the prior serious felony. The court stayed the gang enhancement. The court stated, "The Court will not strike [the gang enhancement allegation] in this particular case, as I do not find unusual circumstances; however, I am staying the imposition of sentence on that particular enhancement."
The court imposed a sentence for counts 2 and 3, which it stayed pursuant to section 654.
DISCUSSION
I. Motion to withdraw plea
Pursuant to section 1018, "[o]n 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." "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.' [Citations.]" (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) The defendant has the burden to demonstrate good cause by clear and convincing evidence. (People v. Shaw (1998) 64 Cal.App.4th 492, 496.) "Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged." (People v. Hunt (1985) 174 Cal.App.3d 95, 103.)
We review the trial court's decision whether to permit a defendant to withdraw his plea for an abuse of discretion. (People v. Huricks, supra, 32 Cal.App.4th at p. 1208.) We review the court's factual findings and credibility determinations for substantial evidence. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
Holley asserts that he was suffering from one or more psychiatric problems at the time he entered his plea, and he was prescribed different medications over the course of his incarceration in county jail. Holley posits that, "[i]deally," he should have had a medical evaluation before he was allowed to enter a plea, and the court should have inquired whether he was taking any medication before accepting his plea. On appeal, however, the question is not what an ideal situation would look like. Rather, it is whether Holley established good cause to withdraw his plea such that the trial court's denial of his motion was an abuse of discretion.
Holley contends that it was an abuse of discretion for the trial court to evaluate Holley based on its own observation because the court did not disclose that it was a medical expert. We reject this contention. Holley argues "there is nothing in the record to support the court's (medical) conclusion that [Holley] understood the nature of his plea and that he knowingly entered into the plea agreement." The problem with this argument is that the burden was on Holley to establish that he did not understand what he was doing at the time he entered his plea. Holley offered no medical expert evidence; he offered only his own testimony about how he felt that day. The trial court was not required to accept his testimony regarding his own mental state. (People v. Hunt, supra, 174 Cal.App.3d at p. 103 [in deciding defendant's motion to withdraw his plea, "the trial court is not bound by uncontradicted statements of the defendant"].)
We conclude there is no abuse of discretion. The court acknowledged that, under certain circumstances, a psychiatric condition or problems with medications could create good cause to set aside a no contest plea, but those circumstances were not established in this case. The court observed Holley at the May 11, 2010, hearing and also reviewed the transcript of the hearing. After finding that Holley understood the court's questions and his answers were "totally appropriate," it concluded that Holley failed to meet his burden of showing that he did not understand what he was doing at the time he entered his plea. After reviewing the transcript of the hearing and the documents attached to Holley's motion to withdraw his plea, we conclude the court's decision is well within its discretion.
Holley also argues that, even if he did not establish good cause to permit him to withdraw his plea, he was entitled to a competency hearing under section 1368. A defendant is not competent if he lacks the mental capacity to understand the proceedings. (See Godinez v. Moran (1993) 509 U.S. 389, 401, fn. 12; People v. Lewis (2008) 43 Cal.4th 415, 524.) Under section 1368, "[i]f, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent."
In this case, no doubt as to Holley's mental competence arose in the mind of the judge. In denying the motion to withdraw the plea, the court stated, "It is clear from considering the testimony and reviewing the transcript of the plea ... that [Holley] did in fact understand what was taking place at the time that he entered his plea and the decision that he was making." Far from expressing doubt as to Holley's competency, the court found it clear that Holley did understand the proceedings. Consequently, it was not required to conduct a competency hearing under section 1368. (See People v. Lewis, supra, 43 Cal.4th at p. 525 [under § 1368, competency hearing not required "unless the court itself has expressed a doubt as to the defendant's competence"].)
Federal due process requires the court to hold a competency hearing when the defendant has presented substantial evidence of incompetence. (People v. Lewis, supra, 43 Cal.4th at p. 524.) Our Supreme Court has recognized that, "if a qualified mental health expert who has examined the defendant '"states under oath with particularity that in his professional opinion the accused is, because of mental illness, incapable of understanding the purpose or nature of the criminal proceedings being taken against him ...,"' that is substantial evidence of incompetence." (Id. at p. 525, quoting People v. Stankewitz (1982) 32 Cal.3d 80, 92.) Holley did not present such substantial evidence. As we have observed, he offered no expert testimony about his mental health or medications.
A "defendant's demeanor, irrational behavior, [or] prior mental evaluations" may also be evidence of incompetence. (People v. Rogers (2006) 39 Cal.4th 826, 847.) In this case, however, we discern no evidence of irrational behavior or unusual demeanor. The medical records attached to Holley's motion to withdraw his plea indicate that he was depressed and was prescribed various medications. A prison form indicates that he is illiterate. These documents do not in any way show that he was incapable of understanding the proceedings. Holley did not present substantial evidence of incompetence, and he was not was entitled to a competency hearing.
II. Gang enhancement
At sentencing, the trial court did not strike the gang enhancement but stayed it. The parties agree that the court had no authority to stay the gang enhancement. (See People v. Lopez (2004) 119 Cal.App.4th 355, 364 ["trial court has no authority to stay an enhancement, rather than strike it—not, at least, when the only basis for doing either is its own discretionary sense of justice"].)
Holley asks this court to strike the gang enhancement. The People ask us to remand the case to the trial court to determine whether the court intended to strike the enhancement.
Section 186.22, subdivision (g), provides: "[T]he court may strike the additional punishment for the [gang] enhancements ... in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition."
In this case, the trial court did not specify on the record and enter into the minutes the circumstances indicating that justice would be served by striking the gang enhancement. To the contrary, the court stated that it did not find unusual circumstances and would not strike the gang enhancement. Earlier, when Holley entered his plea of no contest, the trial court stated, "[T]he Court has indicated that at the time of sentencing it will be prepared to strike the gang enhancement if that were necessary to achieve the 20 year sentence. In the event that I feel that is inappropriate after reviewing the police report, Mr. Holley will be permitted to withdraw his plea at that time."
The appropriate remedy under these circumstances is to remand the case to the trial court to decide whether to strike the gang enhancement. Pursuant to section 1192.5 governing plea agreements, "[w]here the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant ... cannot be sentenced on the plea to a punishment more severe than that specified in the plea ...." Here, the plea agreement specified a sentence not to exceed 20 years. If the court decides not to strike the gang enhancement, it will, in effect, withdraw its approval of the plea agreement. In that case, Holley must be permitted to withdraw his plea. (§ 1192.5 [court may "withdraw its approval in the light of further consideration of the matter, and ... in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so"].)
DISPOSITION
The order denying Holley's motion to withdraw his plea is affirmed. The judgment is vacated and remanded to the trial court to determine whether to strike the gang enhancement. If the trial court strikes the gang enhancement, it must comply with the requirements of section 186.22, subdivision (g). If the trial court does not strike the gang enhancement, Holley must be permitted to withdraw his plea.
Wiseman, Acting P.J.
WE CONCUR:
Gomes, J.
Dawson, J.