Opinion
C042508.
7-9-2003
THE PEOPLE, Plaintiff and Respondent, v. JENNIFER JEANNE MCCHRISTIAN, Defendant and Appellant.
Defendant Jennifer Jeanne McChristian entered a negotiated plea of no contest to workers compensation applicant fraud (Ins. Code, § 1871.4). Two counts of insurance fraud (Pen. Code, § 550, subd. (b)(2),(3)) were dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754, 159 Cal. Rptr. 696, 602 P.2d 396). Defendant was placed on probation for three years, and the court retained jurisdiction to reduce the offense to a misdemeanor upon payment of restitution.
On appeal, defendant contends that the trial court abused its discretion in denying her motion to withdraw her plea. We shall affirm the judgment. As we will explain, while we may have ruled differently on the motion if we had been the trial court judge, it cannot be said that the court acted arbitrarily, capriciously, or beyond the bounds of reason in denying the motion.
FACTUAL AND PROCEDURAL BACKGROUND
The probation report and a medical report attached to the motion to withdraw the plea reflect the following:
Defendant worked for the Redding Family Medical Group as a medical billing clerk. Her job involved continuous work on a computer. Defendant developed numbness and pain in her left shoulder, radiating down her arm to the wrist.
On November 17, 1999, defendant saw Dr. Harris, a physician at the medical group. He took her off work, gave her medication and wrist splints, and asked her to see a doctor not affiliated with the group.
Defendant filed a workers compensation claim that same day.
She next saw Dr. Ferraro, an orthopedic surgeon who injected her shoulder with cortisone and Xylocaine. Defendant said the injection had no effect on her pain. Dr. Ferraro obtained X-rays, an MRI, and electrodiagnostic studies, all of which were negative. He treated defendant with anti-inflammatories and muscle relaxants, and ordered physical therapy, which ultimately seemed to increase her symptoms. By August 2000, Dr. Ferraro believed that defendant was not capable of any work, including any lifting. By December 2000, Dr. Ferraro concluded that defendant was permanently disabled at a rating of about 19 percent.
In late August 2000, the medical groups workers compensation insurer obtained surveillance videotapes showing defendant lifting her 16-month-old child with both hands, placing the baby on her left hip, and using her affected left arm to balance the baby on her hip.
In November 2000, Dr. Soong conducted a Qualified Medical Examiner (QME) evaluation of defendant. "He found her condition to be resolved, and indicated a disability level that rated out to two percent."
In April 2001, Dr. Ferraro viewed the surveillance tapes of defendant. He "deferred to Dr. Soongs evaluation," and opined that defendant had "misrepresented her pain and physical limitations to him."
In December 2001, a criminal complaint was filed against defendant.
An attempt to settle the workers compensation claim was not successful. On February 11, 2002, defendant underwent a QME evaluation by Dr. Branscum, an orthopedic surgeon.
On March 19, 2002, defendant entered her negotiated plea of no contest.
That same day, Dr. Branscum signed his QME evaluation, which concluded that defendant has a "disability to the left shoulder girdle precluding working overhead for a prolonged period of time, use of the left upper extremity at shoulder height or above for a prolonged period of time, and heavy lifting above shoulder height. She has a disability to the left hand and wrist precluding repetitive firm grasping, gripping, torquing and prolonged keyboarding."
In July 2002, defendant moved to withdraw her plea in light of the information in Dr. Branscums report. The trial court denied the motion in September 2002.
DISCUSSION
For good cause, the trial court "may . . . permit [a] plea of guilty to be withdrawn and a plea of not guilty substituted." (Pen. Code, § 1018; see In re Resendiz (2001) 25 Cal.4th 230, 250, fn. 13.) "Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.] But good cause must be shown by clear and convincing evidence. [Citations.]" (People v. Cruz (1974) 12 Cal.3d 562, 566, 116 Cal. Rptr. 242, 526 P.2d 250; see People v. Fairbank (1997) 16 Cal.4th 1223, 1254, 947 P.2d 1321.)
"A decision to deny a motion to withdraw a guilty plea "rests in the sound discretion of the trial court" and is final unless the defendant can show a clear abuse of that discretion." (People v. Fairbank, supra , 16 Cal.4th at p. 1254.) In other words, "an appellate tribunal is not authorized to substitute its judgment for that of the trial judge." (People v. Stewart (1985) 171 Cal. App. 3d 59, 65, 215 Cal. Rptr. 716.) The trial courts exercise of discretion can be reversed only if that courts "determination is arbitrary or capricious or "exceeds the bounds of reason, all of the circumstances being considered."" (People v. Welch (1993) 5 Cal.4th 228, 234, 851 P.2d 802.)
Defendant provides three reasons why she believes the trial court abused its discretion in denying the motion to withdraw her no contest plea.
A
First, she claims she was not represented by conflict-free defense counsel at the time of the plea.
Before the plea was entered, defense counsel Catherine Pearl explained: "Your Honor, my conflict is, essentially, [defendants] employer at the time [defendant] filed her initial workers compensation claim was my doctor. [P] . . . [P] So its not the type of conflict that bars my representation."
After defendants plea was entered and the defense received Dr. Branscums report, Pearl said that she would file a motion to withdraw the plea. Pearl explained that defendant had been aware of the conflict and had agreed to waive it so long as the case was being resolved by plea, but that Dr. Branscums report "changed the picture with regard to [the] plea," and defendant now "has the basis to try her case." Thus, defendant withdrew her waiver of the conflict and asked Pearl to assert it. The court then appointed Attorney John Webster to represent defendant.
At a subsequent hearing, the trial court found there was no conflict of interest at the time of the plea. In the courts words: "Ms. Pearl felt that it might be a conflict if later on she would have to cross examine the doctor or cast aspersions on the doctors office. And I could see possibly that could happen. I could see at this [plea] stage of the game that did not. I would deny the motion on that basis."
Defendant now argues that she was represented by counsel who would have had "a conflict of interest were the case to proceed to the stage of the taking of evidence." (Italics added.) But this case did not reach such a stage, and the record shows there was no conflict of interest at the time of the plea. In any event, in the words of her trial counsel, defendant had been "willing to waive the [purported] conflict for purpose of an early resolution of [the case] at the plea disposition."
Under the circumstances, the only reasonable conclusion that could have been reached by the trial court is that, when defendant entered her no contest plea, her "exercise of free judgment" was not "overcome" by any conflict of interest on the part of defense counsel. (See People v. Cruz, supra, 12 Cal.3d at p. 566.)
B
Next, defendant asserts that, in denying the motion to withdraw the plea, the court was "undoubtedly influenced" by its erroneous assumption that defendant knew the results of Dr. Branscums QME evaluation before she entered her plea.
Dr. Branscum signed and hand-dated his QME evaluation on March 19, 2002, the same day that defendant entered her no contest plea.
The Peoples opposition to defendants motion to withdraw the plea noted that the first page of Dr. Branscums report bore a typewritten "date of report" of "03/04/02," which was "over two weeks before defendant pleaded no contest." Thus, the People argued, "notwithstanding defendants assertion that on the date of defendants plea, Dr. [Branscum] finalized his evaluation of the defendants claimed physical problems, the actual evaluation attached to defendants moving papers is dated March 4, 2002."
However, the Peoples papers did not suggest any basis upon which to credit the typewritten date and reject the handwritten date. We decline to do so.
In denying defendants motion, the trial court summarized the sequence of events as follows: "Six weeks or a month prior to her entering the plea she had a medical exam somewheres [sic] in that time span which she obviously knew about. She obviously knew it would generate a report. And, apparently, she did not tell her counsel about that report until after the report had been generated so that she had the opportunity to review it. Then when she found it was in her favor she then approached Ms. Pearl about it and then thats when sentencing was continued. [P] . . . [P] . . . [Defendant] knew it was available. She knew she had the exam. She knew the report would be generated. I understand from [the Peoples opposition] — this report had been generated prior to [defendant]appearing in court to enter her plea, although she may not have picked it up. But now that she finds this report in her favor, she wants to have her plea withdrawn. She did not inform Ms. Pearl of that exam prior to entering her plea." (Italics added.)
The record does not support the italicized findings that Dr. Branscums evaluation had been "generated," and defendant could have "picked it up," before Dr. Branscum signed and dated it on March 19, 2002. Thus, the trial court erred in so finding.
Nevertheless, the record indicates the trial courts ruling was not influenced by this erroneous finding. Rather, the courts ruling was based upon its findings, supported by the record, that defendant knew she had been examined by Dr. Branscum, knew his report would be forthcoming, and failed to inform defense counsel of the examination until after the plea was entered.
Although defendant may have been "ignorant" of Dr. Branscums conclusions, such ignorance would not necessarily overcome her free judgment. Both Dr. Ferraro and Dr. Soong had rejected defendants claims of injury, and she could not be certain that Dr. Branscum would disagree with them. Even if defendant thought that he would disagree, she could not be confident a jury would find Dr. Branscum more persuasive than Dr. Ferraro and Dr. Soong.
Against that backdrop of uncertainty, the plea agreement offered defendant the assurance that she would avoid both a prison sentence and a disciplinary jail term.
Under the circumstances, the court reasonably could have concluded that defendant failed to present clear and convincing evidence that her ignorance of Dr. Branscums opinion overcame her considered judgment that the plea was in her best interest, i.e., instead, defendant made a calculated decision to accept a plea bargain rather than risk a worse result if Dr. Branscums report turned out to be unfavorable to her. (See People v. Cruz, supra, 12 Cal.3d at p. 566.)
C
Lastly, defendant claims the trial court "did not engage in an informed exercise of [its] discretion because it did not understand Dr. Branscums report." We are not persuaded.
In the course of its ruling, the court stated it did not know the contents of Dr. Branscums report. Defense counsel responded that the report had been attached to the motion to withdraw the plea. After confirming this fact, the court stated: "I can read a doctors report, but I havent the slightest idea what it says. That was never my field, never my area. So, apparently, this is a favorable report. But I wouldnt be the guy who could say that for sure. Im just not — thats not my area of — in the realm."
"To exercise judicial discretion, a court must know and consider all material facts and all legal principles essential to an informed, intelligent, and just decision. [Citation.]" (In re Woodham (2001) 95 Cal.App.4th 438, 443, fn. 7.)
Here, the trial court acknowledged the "material fact" that Dr. Branscums report was favorable to defendant. Beyond this, the court did not attempt to interpret or analyze the highly technical, 13-page QME report. Rather, it recognized it was not competent to do so.
Defendant has not identified any fact or facts that were material to her motion but not known or considered by the trial court. The only material fact was that the report was favorable to defendant—the very fact that the court acknowledged in its ruling.
D
For the reasons stated above, it cannot be said that the trial court acted arbitrarily, capricious, or beyond the bounds of reason in denying defendants motion to withdraw her plea of no contest. (People v. Fairbank, supra, 16 Cal.4th at p. 1254;People v. Welch, supra, 5 Cal.4th at p. 234.)
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, J., and NICHOLSON, J.