Opinion
D069838
02-08-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY ALEXANDER HUNT, Defendant and Appellant.
Warren & Burstein and Devin Burstein, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Eric A. Swenson, Lynne G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD260688) APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed. Warren & Burstein and Devin Burstein, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Eric A. Swenson, Lynne G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
Anthony Alexander Hunt pleaded guilty to a felony complaint charging him with robbery (Pen. Code, § 211; count 1) and battery with serious bodily injury (§ 243, subd. (d); count 2), as well as allegations as to both counts that he personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a) as to count 1; § 1192.7, subd. (c)(8) as to counts 1 and 2). As part of his plea, Hunt admitted allegations that he had suffered two prior prison terms (§§ 667.5, subd. (b), 668), three serious felony prior convictions (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and 11 prior strike convictions (§§ 667, subds. (b)-(i), 668, 1170.12). Before his sentencing, Hunt moved to withdraw his plea. The court denied the motion and sentenced him to a stipulated 19-year prison term.
Statutory references are to the Penal Code.
Hunt appeals, contending the trial court erred by denying his motion to withdraw his guilty plea because hours before it was taken he had suffered an epileptic seizure, which assertedly impaired his ability to knowingly, intelligently and voluntarily waive his rights and plead guilty. On this record, we conclude the court did not clearly abuse its discretion in its ruling. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On February 2, 2015, following an argument in the parking lot of a liquor store, Hunt struck Ken Stidum in the head several times and knocked him unconscious. Hunt then went through Stidum's pockets. Stidum was taken to the hospital with injuries to his head and jaw. While there, he realized he was missing cash from his pocket. The liquor store owner recognized Hunt in his store's surveillance camera footage.
After the People charged Hunt in the felony complaint set forth above, the matter was set for a jury trial. On July 27, 2015, the parties proceeded with in limine motions. The next day, the court announced it had received a change of plea form and asked if Hunt wished to change his not guilty plea to a plea "to the sheet." Hunt's counsel responded that the court was correct. The court swore Hunt in and in response to its questions, Hunt stated he had not had any drugs or alcohol in the last 24 hours; he read, wrote and understood English; he had read his change of plea form in its entirety; he had initialed and signed the form as well as put his thumbprint on it; and he had discussed everything on the form with his counsel. The court asked Hunt if he had any questions, and Hunt proceeded to deny that he had taken anything from Stidum: "I don't mind the plea, you know, but it's like I'm, you know—in regards to the video with me—you know, I didn't take anything from that man. [¶] I didn't technically rob anybody. Not—technically I didn't rob anybody. I did hit him, and I understand that I have to have both of the counts for that, you know, and that's—I signed the paperwork. I know I can't afford to get a life sentence." The court advised Hunt that it would not take his plea unless he admitted he was actually guilty of the robbery. Hunt and his counsel conferred and the hearing proceeded.
Hunt's counsel also pointed out that Hunt had a cast on his right arm and was right-handed, so it was "a little difficult" for him to initial the form, and some of the initials might appear "haphazard" because some were done with his right hand and some were done with his left.
On further questioning, Hunt stated he understood he had constitutional rights as reflected on the plea form, had no questions about them, and understood he had to give up those rights to plead guilty. Hunt stated that he gave up his constitutional rights. His counsel concurred in the waiver. The court went over the maximum consequences of Hunt's plea and confirmed that Hunt understood them. Hunt's counsel told the court she was satisfied Hunt understood the terms of his plea and had read and considered the change of plea form. Hunt stated he entered into his guilty plea and his admissions freely and voluntarily, and because he was guilty of the charged offenses.
Several months later, Hunt's counsel advised the court that Hunt wished to withdraw his guilty plea and have new counsel appointed. The court then held a hearing under People v. Marsden (1970) 2 Cal.3d 118, after which it appointed new counsel for Hunt.
Thereafter, Hunt moved to withdraw his guilty plea on grounds he was "cognitively unaware" of entering into the plea and its consequences due to an epileptic seizure he had suffered early in the morning that day. He supported the motion with his declaration in which he stated that after he realized he had pleaded guilty, he compiled a list of witnesses to his seizure and gave it to his attorney, telling her he wanted to withdraw his plea. He stated that had he been clear minded on the day of his plea, he would not have entered a plea of guilty but would have proceeded to trial. Hunt also submitted written interview reports from various inmates as well as portions of his medical chart indicating he had been taken to the hospital after suffering a seizure on May 17, 2015.
At the hearing on Hunt's motion, Hunt under oath stated he remembered coming to court on the day set for trial and his attorney telling him the judge would give him a sentence if he pleaded guilty to everything. He met with his counsel and her supervisor later that night about the possible sentence if he pleaded guilty, and he told her he would think about it. Hunt testified that he suffered the seizure about 1:30 a.m. or 2:00 a.m. the next morning. He stated he had been up all night drinking coffee; at the time he was tired and scared about getting a possible life sentence. Hunt explained he had a 39-year history of having such seizures and took medication for them. According to Hunt, he remembered coming to court on the day of his plea and talking to his attorney about some things but was "kind of in and out." He stated he could not remember all of his change of plea; he remembered some things, but he "put his head down and I got that head rush again, and I just kind of [sic] in and out . . . ." Hunt stated it was his intention to go to trial that day. He did not realize he had changed his plea and pleaded guilty until he was back in the holding tank and someone remarked that they could not believe he took the deal. Hunt testified he did not recall putting his thumbprint on the change of plea form. He stated that as he got older, his seizures worsened but occurred mostly while he slept; when he previously had seizures during the day, he would be "kind of out of it for four or five hours" depending on the severity and type of seizure.
On cross-examination, Hunt agreed he remembered that day, and when asked if he recalled the discussion concerning him getting a determinate term of 19 years rather than a life sentence, Hunt responded, "Bingo. Yes, I sure do." Hunt thought he had told his attorney that he was not feeling well, but did not remember if he asked for more time to think about things. He also stated he did not remember the whole plea but only a few things the judge said. Though Hunt recalled after his plea hearing inmates telling him he had pleaded guilty, he claimed that when he returned to jail afterwards, he "virtually passed out" and was experiencing a headache. Hunt claimed he did not remember telling the judge that day that he did not rob anybody and could not afford a life sentence. Hunt presented testimony from two inmates who testified that during a night in July 2015 they heard shouting of a "man down"'; one testified he saw Hunt "shaking" in his bed that morning, and the other testified Hunt had a "seizure or something like that," meaning he was shaking and "didn't look good."
The People called Hunt's former defense counsel, Jessica Marshall, who testified that if she thought a client was not physically or mentally able to go forward with a hearing, she would find a way to terminate it. She testified that before entering his plea, Hunt did not complain about any medical condition that impaired his ability to understand the proceedings, but she later found evidence that he had seizures while in custody. Hunt did not inform Marshall of his seizure before entering into the plea. According to Marshall, when she had conversations with Hunt, he responded in an appropriate manner to questions. On the day of the plea hearing, she did not observe anything about Hunt's appearance, speech, demeanor, or conduct that caused her to be concerned about his physical or mental abilities that day. She went over the plea form with Hunt and explained it to him; they met for about an hour and a half going over the change of plea, she answered Hunt's questions and talked to him about the court's indication. Nothing happened that indicated to Marshall that something was amiss. She did not see anything that led her to believe he did not understand what was going on, nor was she concerned there was anything during Hunt's colloquy with the court that indicated he did not know what he was doing. She acknowledged he seemed very stressed about what was going on; there was "lots of sighing" and he put his head down a couple of times, but she asked him if he was okay and if he was sure he wanted to go forward, telling him he did not have to proceed. When Hunt protested about the robbery, she conferred with him and explained that to accept the offer, he would have to plead guilty to both counts but he did not have to do that, and they could stop and call the jury; that she was prepared to go forward and defend his case. During their conversation, Hunt asked Marshall about pleading to a 17-year sentence because she had told him the night before that even if it was just one count and the low term, the best he could get was 17 years. Marshall testified that during the plea hearing she requested a sentencing hearing date after a particular date in November at Hunt's request because Hunt wanted his sentencing to occur after his sister's birthday. She explained that the day after the plea hearing, Hunt called her and told her for the first time that he had a seizure the night before, and said in effect that he wasn't in his "right mind" and did not know what was going on, but was "out of it" at the time of the hearing.
In response to the court's questions, Marshall stated she had no doubt of Hunt's competency to enter his plea, otherwise she would have alerted the court or asked for a recess, and eventually would have told the court they could not proceed.
After considering counsel's arguments, the trial court denied Hunt's motion to withdraw his guilty plea. It observed that the question was not whether Hunt had experienced a seizure, but whether the fact or not of that event impacted his ability to give a knowing and intelligent waiver of his right to a trial and to enter a guilty plea. Looking at the transcript of Hunt's change of plea hearing, the court recounted the events, and also pointed to Hunt's request to attorney Marshall for a 17-year offer, finding that "demonstrates his knowledge and his . . . consciousness of what is going on in the proceedings," even though such a deal would not occur. The court also looked at Hunt's protests about the robbery as not demonstrating he "wasn't all there" but as showing Hunt was "with it." The court observed that Marshall had agreed Hunt had read and understood the contents of the change of plea form, and noted that Hunt never replied in the negative. It concluded it "would not have taken this plea if I had any doubt in my mind that there was a . . . question about the competency of Mr. Hunt to enter that plea. I was ready to go to trial, there was a jury that was on their way up here, and we could have just proceeded with the trial. [¶] But it was Mr. Hunt who was grateful for not getting a 25-to-life sentence plus 23 years, I think is what . . . it all boils down to, and we proceeded with the plea. And the fact that he has buyer's remorse later on is not a basis for a motion to withdraw the plea . . . ."
Hunt obtained a certificate of probable cause and filed the present appeal.
DISCUSSION
"A defendant may move the trial court to set aside a guilty plea for good cause at any time before the entry of judgment. [Citation.] 'Good cause' means mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free judgment . . . ." (People v. Alexander (2015) 233 Cal.App.4th 313, 318, quoting People v. Cruz (1974) 12 Cal.3d 562, 566.) Defendant has the burden to establish good cause by clear and convincing evidence. (Alexander, at p. 318; Cruz, at p. 566.) The trial court rules on such a motion "after consideration of all factors necessary to bring about a just result." (People v. Weaver (2004) 118 Cal.App.4th 131, 146.) " 'The grant or denial of such a withdrawal motion is "within the sound discretion of the trial court and must be upheld unless an abuse thereof is clearly demonstrated." ' " (Alexander, at p. 318; People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796.) " 'Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.' " (Weaver, at p. 146.)
Hunt contends that the totality of the evidence presented at his motion hearing compels only one conclusion: that he demonstrated good cause to withdraw his guilty plea because as a result of his seizure, he experienced cognitive difficulties during the hearing and did not fully understand or knowingly enter the plea. Hunt maintains there is no meaningful evidence contradicting his testimony and other evidence concerning the seizure and its consequences, "apart from the court's recollections from a plea that occurred months before the withdrawal hearing," and thus the court's decision to deny the motion was arbitrary and unreasonable.
The contention is without merit. The trial court made factual findings concerning Hunt's ability to understand the proceedings and knowingly enter into his plea, and we must adopt its express or implied findings if substantial evidence supports them. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254; People v. Gutierrez (2003) 106 Cal.App.4th 169, 176 [reviewing court is not free to disregard an implied finding supported by substantial evidence]; People v. Knight (1987) 194 Cal.App.3d 337, 344.) Such evidence includes the court's own observations of Hunt and Hunt's demeanor, performance and capacity during the plea hearing, and in ruling on Hunt's motion, it was within the court's discretion to consider those observations. (See Fairbank, at p. 1254.) The record also shows Hunt initialed the plea form attesting he understood and accepted the plea agreement and the rights he was required to waive; he attested his judgment was not impaired and he had not consumed any drug or narcotic within the past 24 hours. The court apprised Hunt of his rights, informed him of the consequences of his plea, confirmed he had been advised by attorney Marshall, and Hunt answered affirmatively to each of the court's questions and explanations. (Accord, People v. Ravaux (2006) 142 Cal.App.4th 914, 918.) Attorney Marshall's testimony—recounting her own observations and detailed discussions with Hunt during the plea hearing, as well as her impression that his competency was not compromised—constitutes additional substantial evidence supporting the court's conclusion that Hunt was competent to enter into his plea at the time of the plea hearing.
During her argument on Hunt's motion to withdraw his plea, Hunt's substituted counsel asked the court to review Hunt's plea form, compare it to others he had entered into, and look at the difference in his initials as an indication that his motor functions were not normal. The court responded: "But he had a broken hand. His hand was in a cast at the time." The court's remark was consistent with the statement of Hunt's prior counsel at his change of plea hearing that the cast—not any other impairment—made it difficult for him to initial the form. --------
Hunt maintains the court "seemingly allowed its lay opinion to trump the actual evidence." He asks us to compare his circumstances and distinguish them from those in People v. Ravaux, supra, 142 Cal.App.4th 914, in which the defendant moved to withdraw his guilty plea based on an unspecified medical condition that counsel first raised with the court at the conclusion of the defendant's plea hearing. (Id. at pp. 917, 918.) In Ravaux, this court observed that the "sole evidence that [Ravaux's] judgment was affected by medication is Ravaux's own assertions in support of his motion to withdraw the plea," which was contrary to the position he took under oath at the time the guilty plea was given, and also at odds with what the trial judge had observed about his demeanor and performance. (Id. at p. 918.) And, as Hunt correctly points out, in Ravaux, there was considerable evidence—including the defendant's position at the time of his plea and the trial judge's recollections at the plea hearing—showing the defendant was not impaired. (Ibid.) We concluded in Ravaux that substantial evidence supported the trial court's finding that the defendant was not impaired to the point that his independent judgment was overcome, based on the court's own recollection and the lack of credible evidence to the contrary. (Ibid.)
There is no meaningful difference between Hunt's circumstances and those in People v. Ravaux, supra, 142 Cal.App.4th 914. Even assuming Hunt had a documented seizure condition or had in fact suffered a seizure the morning of his plea hearing, such evidence does not establish that his medical condition impaired his capacity such that he was unable to exercise his free and independent judgment or knowingly and willingly enter into his plea agreement. As in Ravaux, the sole evidence that Hunt's judgment was affected by any medical condition was his own declaration in support of the motion, and his own testimony during the hearing, which is countered by abundant evidence as recounted above that he in fact was unimpaired and fully cognizant of the circumstances. The trial court was permitted to take into account Hunt's credibility and his obvious interest in the outcome of the proceedings. (People v. Fairbank, supra, 16 Cal.4th at pp. 1253-1254; People v. Ravaux, at p. 918.) Though in reply Hunt claims there is no evidence the court assessed all of the evidence and relevant factors including his credibility, the assertion is not supported by the record. In particular, we may infer based on the court's remarks in ruling on the motion (including when it recalled counsel's testimony of Hunt's lucid discussions regarding his possible sentence) that it did weigh Hunt's credibility. The court was not bound to accept Hunt's assertions that he was cognitively disabled, incapable of remembering anything, or unable to understand the proceedings and exercise his free judgment due to his post-seizure state. Such determination again depends on the court's assessment of the defendant's mental state at the time of the plea, and the credibility of Hunt's later efforts to recant his previous admissions given his interest in the outcome of the proceeding. (See People v. Huricks (1995) 32 Cal.App.4th 1201, 1206-1208; People v. Hunt (1985) 174 Cal.App.3d 95, 103 [in determining the facts on a motion to withdraw a guilty plea, the trial court is not bound by the defendant's statements, even if uncontradicted].) And the court on the record stated its reasons for denying the motion, giving a reasonable basis for its decision. (Compare People v. Perez (2015) 233 Cal.App.4th 736, 742 [reversing where trial court "gave no basis" for its decision denying defendant's motion to withdraw his guilty plea].)
In sum, the record supports the trial court's finding, based on its own observations of Hunt when Hunt entered into his plea as well as its evaluation of all of the testimony and evidence on Hunt's motion, that no factor overcame Hunt's free and independent judgment in accepting his plea. The court was well within its discretion in ruling Hunt did not establish good cause to withdraw the plea.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.