Opinion
A151179
08-15-2018
THE PEOPLE, Plaintiff and Respondent, v. JERRY DEAN JONES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. Nos. CR-941460-B, CR-936632)
Appellant Jerry Jones moved to withdraw his no contest pleas pursuant to Penal Code section 1018, asserting that he did not fully understand the consequences of his pleas and that he relied on incorrect legal advice by his trial counsel. Upon finding that Jones failed to meet his burden of showing good cause, the trial court denied Jones's motion to withdraw his no contest pleas to the possession for sale of methamphetamine (Health & Saf. Code, § 11378) and to buying or receiving stolen goods (Pen. Code, § 496, subd. (a)). Jones appeals, arguing that the trial court abused its discretion in denying his motion to withdraw the pleas. We affirm.
All undesignated statutory references are to the Penal Code.
I. BACKGROUND
A. Case No. CR-936632
On December 8, 2015, a consolidated information was filed charging Jones with 12 offenses arising out of three previously filed felony complaints. Jones was charged with transportation or sale of methamphetamine (Health & Saf. Code, § 11379, subd. (a), count 1); possession of methamphetamine for sale (Health & Saf. Code, § 11378, counts 2, 6, and 11); possession and use of a false compartment to transport a controlled substance (Health & Saf. Code, § 11366.8, subd. (a), count 3); misdemeanor possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 4); misdemeanor use of a controlled substance (Health & Saf. Code, § 11550, subd. (a), count 5); possession of marijuana for sale (Health & Saf. Code, § 11359, count 7); transportation or sale of marijuana (Health & Saf. Code, § 11360, subd. (a), count 8); manufacture or possession of metal knuckles (§ 21810, count 9); misdemeanor possession of a smoking device (Health & Saf. Code, § 11364.1, subd. (a)(1), count 10); and misdemeanor destruction of documentary evidence (§ 135, count 12). The consolidated information also alleged that Jones had suffered two prior convictions on drug charges (Health & Saf. Code, § 11370.2, subd. (c)) and had served a prior prison term (§ 667.5, subd. (b)). Jones was alleged to have committed five of the charged offenses (counts 6, 7, 8, 9, and 11) while released from custody on bail (§ 12022.1).
B. Case No. CR-941460-B
On January 7, 2016, a felony complaint was filed charging Jones with residential burglary (§ 459, count 1) and buying, receiving, or selling stolen property (§ 496, subd. (a), count 2). The complaint further alleged that Jones committed these offenses while released from custody on bail on the charges in the previously filed case. (§ 12022.1.) It named Devin Jay Forney as a codefendant in both counts.
Jones waived his right to a preliminary examination on the charges and by stipulation of the parties, the complaint was deemed the information.
C. Procedural Background
On November 4, 2016, after negotiating a plea and sentence bargain with the district attorney, Jones filed a plea form for both cases. Jones pled no contest to count 2 for possession of methamphetamine for sale (Health & Saf. Code, § 11378) in case No. CR-936632 and to count 2 for buying, receiving, or selling stolen property (§ 496, subd. (a)) in case No. CR-941460. All other charges were to be dismissed. Jones also admitted an on bail enhancement. In return, he was to receive a maximum sentence or "cap" of four years eight months.
Jones initialed and signed the plea forms, reciting that he was freely and voluntarily pleading no contest to the listed charges and admitting the allegations, "understanding that this plea and admission will lead to the penalties listed" in the forms; that no one had made any promises to him, except as indicated, in order to convince him to plead no contest; that he had discussed each of the applicable items with his attorney; that he understood and agreed with what was stated in each initialed item; that "[t]he nature of the charges, possible defenses, and effects of any prior convictions, enhancements, and special allegations have been explained to me"; and that he understood and gave up each of the enumerated rights to enter his pleas. Likewise, Jones's attorney signed a written statement representing that he had reviewed the form with Jones; had explained each of the items in the form, including Jones's constitutional and statutory rights, to Jones and answered all of his questions with regard to those rights, the other items in the form, and the plea agreement; had discussed the facts of the case with Jones and explained the nature and elements of each charge, any possible defense to the charges, the effect of any prior convictions, enhancements, and special allegations, and the consequences of the pleas; and concurred in those pleas. On the same day, November 4, 2016, in response to questions by the trial court, Jones confirmed that he understood the agreed-upon sentence and that no one had made any other promises to him, and entered his pleas and admissions. The trial court accepted the pleas, made corresponding findings, and referred the matter to the probation department for the preparation of a sentencing report and recommendation.
Sentencing was originally set for January 9, 2017, and was later continued to January 23, 2017. On that date, however, the court ordered Jones's defense attorney, Mitchell Hauptman, relieved, and a second attorney, David Markham, appeared on his behalf. Jones's new counsel informed the court that he may be filing a motion to withdraw Jones's pleas, and the court without objection ordered the sentencing hearing continued.
On February 10, 2017, Jones filed a motion to withdraw his no contest pleas on the ground that he "didn't fully understand the consequences of his pleas." The motion was supported by Jones's declaration, in which he asserted that the stolen property charge to which he had pled no contest was based on an incident in which, while accompanied by Forney, he had "unknowingly pawned stolen property." Jones asserted that his former attorney, Hauptman, "told me, prior to entering my plea, if Devin Forney wrote a letter stating I did not have knowledge that the property was stolen that I would be able to withdraw my plea." He stated that although Forney later wrote and signed such a letter and he gave it to Hauptman, Hauptman told him he would not be able to withdraw his plea based on the letter. Jones also asserted that he entered his pleas several days before the election at which Proposition 57 was on the ballot; that he had discussed that initiative with Hauptman; and that "Mr. Hauptman did not specifically state how passage of Proposition 57 would affect the proposed sentence bargain but he did say it was possible that my sentence would be shortened if Proposition 57 passed." Jones claimed that if he had known he would not be able to withdraw his plea based on Forney's letter, he would not have pled to the violation of section 496, subdivision (a). He further asserted that if he had known that Proposition 57 does not impact county jail sentences, he would not have changed his pleas.
Proposition 57, the "Public Safety and Rehabilitation Act of 2016," was a ballot proposition approved by the voters in November 2016. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303.) Among other things, Proposition 57 changed adult sentencing to make nonviolent adult offenders eligible for parole consideration after completing the term of their primary offense. Article I, section 32, subdivision (a)(1) of the California Constitution, as amended by Proposition 57, states, "Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense." The full term for the primary offense is defined as "the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence." (Cal. Const., art. I, § 32, subd. (a)(1)(A).)
At the hearing on the motion, Hauptman testified that he had no recollection of having promised Jones anything other than that he would receive the agreed-upon maximum sentence of four years eight months. Hauptman confirmed that he advised Jones that if Forney, Jones's codefendant in the later case, wrote a letter stating that Jones did not have knowledge that the property was stolen, Jones would have grounds to withdraw his plea. Hauptman testified that after Jones entered his plea, he received a letter "that was purportedly signed by Devin Forney" that "largely contained Mr. Forney's strong belief that Mr. Jones was not a bad person," but he did not recall the letter stating that Forney knew the property was stolen and had provided it to Jones without telling him it was stolen. The letter contained the following sentence: "To the best of my knowledge Jerry Jones was not aware of the property being of any stolen nature as Jerry is a friend of mine that I have known for quite a while and I did not get the impression that he was aware or knew anything about any stolen items." It went on to say, "Knowing Jerry he would never have done such criminal law breaking exchange of stolen items especially with his child physically in such a situation." According to Hauptman, the letter "fell short of my expectations," because it "was not sufficiently specific in terms of exonerating Mr. Jones."
Hauptman also testified that he would have discussed with Jones that there was "considerable uncertainty" about what the effect of Proposition 57 would be, and that one possibility was that it "may serve to reduce the sentence that he agreed to." He said that "[a]ll I could have advised him . . . is that Prop 57 will have the effect of making him eligible for parole at the conclusion of one half of the base term" for a state prison sentence; however, the plea agreement called for Jones to be incarcerated in county jail.
On March 13, 2017, the court denied the motion, finding that Jones had not met his burden to show good cause to withdraw his pleas. Jones's counsel sought a continuance to prepare for sentencing and to present a "better letter from Mr. Forney" that might warrant withdrawal of Jones's plea. On March 27, 2017, the court sentenced Jones to the agreed-upon maximum term of four years eight months in county jail. Jones received the middle term of two years for the felony count of buying or receiving stolen property, and an additional on bail enhancement of two years. The court further ordered that Jones serve eight months consecutively for the felony count of possession for sale of methamphetamine.
Jones never presented such a letter.
The full details of the facts underlying the offenses are not pertinent to the issue on appeal.
In the first case, a Clearlake police officer stopped Jones for traffic violations on July 10, 2014, and observed that Jones was displaying "numerous signs of being under the influence of a central nervous system stimulant." Upon searching Jones's person, the officer located around $405 in his pocket. While searching the vehicle, the officer also found a plastic bag that contained 3.7 grams of methamphetamine inside a customized shifter handle on the steering column. When questioned, Jones denied possession of methamphetamine for sales and attributed the $405 to a dirt bike he had recently sold.
In the second case, the victims contacted police on December 5, 2015 after items from their home worth an estimated value of $32,400 were burglarized. Jones was caught on video several days later selling numerous items of jewelry with removed engravings at a Sonoma County pawn shop. The victims later identified a ring as one of the rings that was taken during the burglary. Jones was accompanied by two other individuals including Devin Forney (Forney), but Jones himself presented the items and received the money in exchange. The charged offenses occurred while Jones was released on bail for the previous case.
II. DISCUSSION
Jones contends on appeal that the trial court abused its discretion in denying his motion to withdraw his pleas because trial counsel's incorrect legal advice led him to believe that (1) he would be able to withdraw the motion if he obtained a letter from Forney exonerating him of knowledge that property was stolen, and (2) Proposition 57 would reduce his sentence. We are not persuaded.
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." The defendant has the burden to show, by clear and convincing evidence, that there is good cause for withdrawal of his or her guilty plea. (Ibid.; People v. Cruz (1974) 12 Cal.3d 562, 566 ["But good cause must be shown by clear and convincing evidence"].) "To establish good cause to withdraw a guilty plea, the defendant must show by clear and convincing evidence that he or she was operating under mistake, ignorance, or any other factor overcoming the exercise of his or her free judgment, including inadvertence, fraud, or duress. [Citation.] The defendant must also show prejudice in that he or she would not have accepted the plea bargain had it not been for the mistake." (People v. Breslin (2012) 205 Cal.App.4th 1409, 1416.) "However, '[a] plea may not be withdrawn simply because the defendant has changed his mind.' " (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208; accord, People v. Simmons (2015) 233 Cal.App.4th 1458, 1466 ["it is settled that good cause does not include mere 'buyer's remorse' regarding a plea deal"].)
"The decision to grant or deny a motion to withdraw a guilty plea is left to the sound discretion of the trial court. [Citations.] 'A denial of the motion will not be disturbed on appeal absent a showing the court has abused its discretion.' [Citations.] 'Moreover, a reviewing court must adopt the trial court's factual findings if substantial evidence supports them.' " (People v. Breslin, supra, 205 Cal.App.4th at p. 1416.) " '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.' " (People v. Nocelotl (2012) 211 Cal.App.4th 1091, 1096 (Nocelotl).) " 'Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.' " (Ibid.)
Here, the trial court acted well within its discretion in denying the motion because counsel's purportedly erroneous advice is not grounds for withdrawal of a guilty plea, absent a showing of involvement by a state actor such as a prosecutor or the trial court.
It has long been established that "[m]ere advice and persuasion" and even "unwarranted or even willfully false statements" by defense counsel are not sufficient to vitiate a guilty plea. (People v. Gilbert (1944) 25 Cal.2d 422, 443.) " '[T]he advice, persuasion, or expression of opinion of [a defendant's] attorney will not suffice to vitiate his plea, in the absence of some showing of corroboration by a responsible state officer [citations].' " (Nocelotl, supra, 211 Cal.App.4th at p. 1096; accord, In re Nunez (1965) 62 Cal.2d 234, 236 ["In the absence of an allegation of state involvement, petitioner's allegation that counsel improperly induced him to enter a guilty plea does not state a ground for coram nobis relief"]; People v. Toth (1964) 224 Cal.App.2d 130, 132 [defense counsel's statement that defendant would " 'get the gas chamber' " if the case were tried did not amount to " 'threats, duress, and intimidation' " inducing plea of guilty to first degree murder, absent participation in representations by any prosecutor or other officer of the state]; People v. O'Neal (1962) 204 Cal.App.2d 707, 709 [assurances from defense counsel that defendants would receive county jail sentences insufficient to warrant vacating guilty pleas].)
Thus, in Nocelotl, the defendant sought to withdraw a no contest plea to kidnapping because, based on counsel's advice, he had reasonably believed that he would be granted probation if a psychological evaluation of him by prison psychologists was favorable, which it was. However, the prison warden recommended that the defendant be committed to prison. The defendant argued that because he had been erroneously advised as to a central and material term of the plea agreement, the trial court abused its discretion in denying his motion to withdraw his no contest plea. The court disagreed, holding squarely that "[d]efense counsel's erroneous advice did not require the court to grant [defendant's] motion to withdraw his plea." (Nocelotl, supra, 211 Cal.App.4th at p. 1096.)
This unbroken line of authority is controlling here. Jones complains that his pleas were "the product of trial counsel's legally incorrect advice" on two subjects: whether he would have grounds to withdraw his plea if Forney's letter absolved him of the crime, and his possible eligibility for early parole consideration if Proposition 57 were enacted. He does not contend, however, that either the prosecutor or the court participated in or ratified his attorney's advice, and he repeatedly denied, both in writing and orally, that anyone had made any promises to him (other than as to the maximum sentence he would receive) to induce him to enter his pleas. Jones's contention that he would not have entered his pleas absent his counsel's advice therefore is unavailing.
In any event, Jones's contention that Hauptman's advice was erroneous is unpersuasive. As the trial court observed, Forney's letter was "vague" at best—merely expressing Forney's personal "impression" as to Jones's lack of knowledge that the property was stolen but without supplying any information as to how or by whom it was stolen or what Forney had told Jones in that regard—and it certainly did not conclusively exonerate Jones. Indeed, the trial court itself confirmed Hauptman's advice that had it done so, it might have provided grounds for Jones to withdraw his plea. As to Hauptman's advice that it was "possible" that Jones's sentence would be shortened if Proposition 57 passed, such a qualified and equivocal expression of opinion was not necessarily inaccurate, given the uncertainties regarding how that pending initiative might be interpreted in the courts following its enactment.
Hauptman explained that although Proposition 57 was limited by its terms to persons sentenced to serve a term in state prison, he believed those incarcerated in county jail might have grounds to challenge that limitation on equal protection grounds.
Jones also contends that he was "pressured into pleading guilty and that his will had been overborne," but that claim appears merely to restate his contention that he relied on incorrect legal advice in entering his pleas. In any event, there is no substantial evidence that Jones was operating under duress or any other factor overcoming the exercise of his free judgment when he entered his pleas. Jones acknowledged in writing and orally that he had a full opportunity to discuss with his attorney any defenses he would have at trial, the waivers of his rights, and the consequences of the pleas, and that he was entering those pleas freely and voluntarily. When asked if he was threatened to induce him to enter the pleas, Jones replied "no." He similarly admitted that no one had made any promises to him, other than that he would be sentenced to a maximum four years and eight months in county jail, to induce him to enter those pleas. There is no evidence to support his contention that he was subjected to duress or undue pressure. (See People v. Huricks, supra, 32 Cal.App.4th at p. 1208 [rejecting defendant's claim he was induced to enter plea through undue duress by his family where "[n]othing in the record indicates [defendant] was under any more or less pressure than every other defendant faced with serious felony charges and the offer of a plea bargain"].) Even if Jones entered his plea "unwillingly" and with "reluctance," yielding to his counsel's " 'persuasions and prejudices,' " that would be insufficient to establish that he did so involuntarily. (People v. Urfer (1979) 94 Cal.App.3d 887, 892.)
Jones asserts that he had the right to effective assistance of counsel in deciding whether to accept or reject the proposed plea agreement, but he did not assert ineffective assistance of counsel below as a ground for his motion to withdraw his pleas. Nor has he separately asserted such an argument here. For both reasons, he has forfeited any such claim. In any event, we do not believe that Jones has established either of the elements of an ineffective assistance claim. (See People v. Breslin, supra, 205 Cal.App.4th at pp. 1418-1421 [rejecting claim that plea was entered involuntarily due to trial counsel's rendering ineffective assistance of counsel by failing to interview victim before defendant entered her guilty plea where record did not establish that counsel acted unreasonably and defendant failed to establish prejudice].)
Jones relies upon the "somewhat ancient" case of People v. McGarvy (1943) 61 Cal.App.2d 557, the facts of which he claims "parallel[]" those presented here. To the contrary, the two cases could not be more different. In McGarvy, the defendant was arrested and charged with murder and manslaughter on a Sunday morning. At arraignment the next afternoon, he told the court that he would like to talk to an attorney but that he had no money; the court told him it had no authority to appoint counsel to represent him, but that it would not be necessary to have an attorney at the preliminary hearing. (Id. at p. 558.) The court did not appoint counsel, but the district attorney called an attorney and asked if he would "at least talk" to the defendant, which he did for only 20 to 30 minutes on Tuesday morning. The same morning, the defendant pled guilty to manslaughter. (Id. at pp. 559-561.) The defendant stated in his affidavit, among other things, that "he did not have sufficient time within which to discuss his case with the attorney; that he had always maintained his innocence; that he was never fully advised of the seriousness of the crime nor did he understand the nature of the proceedings; that had he been properly or completely advised he never would have pled guilty to the offense; that because all of the proceedings were so hurried he 'was not given time to think of anything.' " (Id. at p. 559.) By the time counsel retained to represent the defendant arrived late Tuesday morning, the case against the defendant had already been concluded, after the preliminary examination was moved from the afternoon to the morning and the defendant was sentenced immediately after entering his plea. (Ibid.) On those extreme facts, the court understandably concluded that "there was undue haste in the entire disposition of the case," that "there was neither investigation nor preparation" by counsel, and that considering all of the facts, the court should have exercised its discretion to permit the defendant to withdraw his plea. (Id. at pp. 561-564.) There simply is no comparison to the facts of this case, where Jones had been represented by counsel since July 29, 2014, more than two years before he entered his pleas, and he had ample time to consult with counsel before doing so, as he confirmed in the plea forms and on the record before the trial court.
Jones's reliance on People v. Ramirez (2006) 141 Cal.App.4th 1501 is misplaced. There, the court held that the prosecutor's failure to disclose a supplemental police report containing exculpatory information implicating a third person in the incident rendered the defendant's plea involuntary. Jones made no such claim here.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Schulman, J. We concur: /s/_________
Streeter, Acting P.J. /s/_________
Reardon, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------