Opinion
D051000
8-7-2008
THE PEOPLE, Plaintiff and Respondent, v. FRANK JOSEPH McNEILL, Defendant and Appellant.
Not to be Published
I.
INTRODUCTION
Frank Joseph McNeill (Frank) pled guilty to one count of disobeying a court order (Pen. Code, § 273.6, subd. (a)) (count 5) and one count of committing false imprisonment by violence, menace, fraud, or deceit (§§ 236, 237, subd. (a)) (count 13). Frank committed both offenses against his former wife, Susan McNeill (Susan). Frank thereafter filed a motion to withdraw his plea. In the motion, Frank claimed, inter alia, that he had not exercised his "free judgment" in pleading guilty because he was "extremely distraught and unable to make rational decisions" at the time he pled guilty. The trial court denied Franks motion, suspended imposition of sentence, and placed him on probation for three years.
We use first names of the parties for purposes of clarity.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
On appeal, Frank claims the trial court erred in denying his motion to withdraw his plea. Frank contends that his guilty plea "was not a product of [his] free will, but rather pressure and psychiatric disorders aggravated by a contentious divorce and child custody dispute." We affirm the judgment.
Frank also filed a petition for habeas corpus, which we summarily deny by way of a separate order filed yesterday.
II.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of the underlying offenses are drawn from the preliminary hearing transcript, which the parties stipulated could serve as a factual basis for the plea.
In February 2006, Frank violated a court order that Susan had obtained to prevent domestic violence, by placing a telephone call to Susan (count 5). In March 2006, Frank approached Susan at a park and made several obscene gestures at her, while saying the nickname of Susans male friend (count 13).
In August 2006, the People filed a 10-count information against Frank charging him with burglary of an inhabited building (§§ 459, 460), petty theft (§ 484), attempted robbery (§§ 664, 211), robbery (§ 211), five counts of disobeying a court order (§ 273.6, subd. (a)), and battery of a current or former significant other (§ 243, subd. (e)(1)).
Later that month, the court held a preliminary hearing. At the hearing, Susan testified that Frank removed items from her home in December 2005. Susan also testified that on March 4, 2006, Frank attempted to forcibly take her purse and cell phone, and took her calendar from her. Susan also testified that Frank had spoken to her on several occasions between February and July 2006, in violation of a court order, and that in July, he had grabbed her arm while he was dropping off one of their children.
On January 22, 2007, the People filed an amended information against Frank charging him with burglary of an inhabited building (§§ 459, 460) (count 1), petty theft (§ 484) (count 2), attempted robbery (§§ 664, 211) (count 3), robbery (§ 211) (count 4), five counts of disobeying a court order (§ 273.6, subd. (a)) (counts 5-9), battery of a current or former significant other (§ 243, subd. (e)(1)) (count 10), grand theft from a person (§ 487, subd. (c)) (count 11), burglary (§ 459) (count 12), and false imprisonment by violence, menace, fraud, or deceit (§§ 236, 237, subd. (a)) (count 13).
That same day, Frank entered into a plea agreement with the prosecutor in which he agreed to plead guilty to counts 5 and 13. In exchange, the prosecutor agreed to dismiss the balance of the charges, to have the felony false imprisonment conviction reduced to a misdemeanor after Franks successful completion of 18 months of probation, and not to charge Frank with any known, but uncharged, offenses in the future. On the change of plea form, Frank initialed a box next to the following statement, "I am entering my plea freely and voluntarily, without fear or threat to me or anyone close to me." The form also stated, "I am sober and my judgment is not impaired. I have not consumed any drug, alcohol or narcotic within the past 24 hours." Frank initialed a box next to each of these statements as well.
In the trial court, Judge Birkmeyer conducted a hearing for the purpose of considering Franks change of plea. At the hearing, the trial court asked Frank whether he had consumed any drugs, alcohol, or other medication within the previous 48 hours. Frank responded in the negative. The court reviewed the charges to which Frank had agreed to plead guilty and asked Frank whether he understood them. Frank asked for a moment to speak with his attorney. The court allowed Frank to confer with his counsel. After they conferred, both Frank and his attorney indicated that he understood the charges.
The court then reviewed the terms of the plea agreement. The court asked Frank whether he understood the terms. Frank asked the court to repeat the terms of the plea agreement. The court again reviewed the terms of the plea agreement and asked Frank whether that was his understanding of the agreement. Frank responded in the affirmative.
The court noted that Franks attorney had stated that the supervising judge, Judge Trentacosta, had stated that it was his "inclination to give [Frank] a felony probationary-type sentence, which has . . . other conditions but not custody." Frank and his counsel stated that the trial courts summary of the sentence were correct. The trial court explained that this sentence was not part of Franks agreement, but was an indication from the judge who most likely would sentence Frank as to Franks likely sentence. Frank stated he understood the difference.
The following colloquy then occurred:
"The court: All right. Now, other than what I have stated, has anybody, the D.A.s office, anybody else made any additional promises in order to get you to plead guilty?
"[Frank]: No.
"The court: Has anybody forced you or threatened you in any way in order to get you to plead guilty?
"[Frank]: No.
"The court: I see youre smiling. Does that seem like a ridiculous concept to you?
"[Frank]: No.
"[Defense counsel]: It is more just the laborious process of getting here, I think, rather than anything else, your honor. It has been a challenge for [Frank] to address and deal with a lot of these issues.
"The court: All right. But youre doing this of your own free will, [Frank]?
"[Frank]: Yes."
The court proceeded to review Franks change of plea form. The court asked Frank whether he had read and understood everything on the form, whether he had reviewed his case and the consequences of pleading guilty with defense counsel, and whether defense counsel had answered any questions Frank may have had to his satisfaction prior to Franks signing the change of plea form. Frank responded in the affirmative to all of the courts questions.
The court then advised Frank of the constitutional rights he would be giving up if he were to plead guilty. Frank stated he understood that he had such rights and further stated that he agreed to give them up in order to plead guilty. Franks counsel concurred in Franks waiver of his constitutional rights. The court advised Frank of various consequences of pleading guilty, and Frank indicated he understood those consequences. Frank and the prosecutor both stated they agreed that the facts presented at the preliminary hearing constituted a sufficient factual basis for each of the counts to which Frank was pleading guilty. Franks counsel also indicated he concurred in Franks plea of guilty.
The court asked Frank how he wished to plead to counts 5 and 13. Frank pled guilty to both counts. The court stated, "I make a finding that you made a knowing, intelligent, and voluntary plea. I base that on my personal observation of you here in court, our conversation, as well as my review of your signed change of plea form, which I am now signing." The court entered Franks pleas of guilty as to counts 5 and 13.
On April 9, Frank filed a motion to withdraw his plea. In his motion, Frank claimed that he was able to demonstrate good cause for withdrawing his guilty plea, on two grounds. First Frank argued that at the time he entered his plea, he was unaware that he could challenge the admissibility of potentially incriminating audiotapes of recorded conversations between himself and Susan. Frank claimed that he had thus entered the plea as a result of "mistake and ignorance."
Second, Frank claimed that he was of "unsound mind" at the time he entered the plea. Frank noted that the events underlying this case occurred during a period in which he was involved in very contentious divorce proceedings with Susan. The divorce proceedings, together with the threat of criminal prosecution, left Frank "broken down and emotionally exhausted." In addition, shortly before the plea, Frank had lost visitation rights to his three children and had spent the Christmas season alone.
Frank filed four declarations in support of his motion. Franks trial counsel through the plea proceedings, Attorney Brad Patton, stated in his declaration that Frank "struggled to make any final decisions about his case and that he was very emotional throughout the proceedings." Attorney Patton also noted that Frank had repeatedly asked the same questions about the evidence and legal issues in the case. Within 10 days of pleading guilty, Frank expressed to Attorney Patton a desire to withdraw his guilty plea.
In a declaration dated April 2, 2007, Franks pastor, Father Michael Murphy, stated that he had been in regular contact with Frank over the previous few months. Father Murphy stated that Frank had been "distraught over his criminal prosecution," and had been "very upset and clearly panicked" regarding his "legal matters. . . ." Father Murphy stated that "[d]uring the last month," he had gotten the impression that Frank "felt trapped and also [that Frank] felt that pleading guilty was the only option he had." Father Murphy also stated that it was his belief that "throughout this ordeal, [Frank] has not been thinking clearly."
Dr. Peter McDade, a psychologist, stated that he had treated Frank throughout the proceedings in this case, including and at the time Frank pled guilty. Frank met with Dr. McDade at least twice a month and the two spoke on the telephone at least two to three times each week. Dr. McDade stated that in the telephone conversations he provided Frank with "ancillary support" to "assist him with his daily functioning." Dr. McDade opined that Frank suffered from attention deficit disorder, depression, an ongoing depressive condition, acute stress, and anxiety. Dr. McDade described Frank as "clearly impulsive," and suffering from "serious emotional issues," stemming from his criminal prosecution and the loss of visitation with his children.
Dr. McDade stated that Frank told him that he regretted pleading guilty "[i]mmediately following [his] decision to plead guilty." Frank told Dr. McDade that he felt pressured by Attorney Patton to plead guilty and said that "he made the wrong decision and felt like he did not have a choice in the matter." Dr. McDade explained that Franks loss of contact with his children in November 2006 had been "devastating," and that at the time Frank entered his plea, "[Franks] state of mind was extremely fragile."
Frank also offered a declaration on his own behalf. In his declaration, Frank essentially stated that he pled guilty because of pressure from Attorney Patton and the emotional stress he was suffering at the time. As examples of the former, Frank stated that Attorney Patton told him that the prosecutor and the court would not give Frank more time to consider the plea agreement, and that the prosecutor would not look favorably on Patton as a defense attorney if Frank were to refuse to accept the plea bargain. In addition, Frank stated that Attorney Patton told him that he was tired of Franks indecisiveness and that Frank would have to find another attorney. According to Frank, Attorney Patton also told Frank that Frank would have to pay Patton additional money because of the extra time involved in "going back and forth to court, and for the possibility that Attorney Patton might need to prepare for trial . . . ." Frank believed that this demand was contrary to the retainer agreement between Frank and Attorney Patton.
The following day, the People filed an opposition to Franks motion to withdraw his plea. With regard to Franks claim of "mistake and ignorance," the People argued that the incriminating audiotapes were admissible, and that Franks pleadings lacked any information as to how Attorney Patton had misinformed Frank regarding that issue. With regard to Franks claim that he had been of "unsound mind" at the time of the plea, the People noted that the case had been continued many times so that Frank could consider whether to plead guilty. The People further claimed that the emotional situation that Frank described did not make the plea involuntary and did not amount to good not cause to withdraw the plea. Rather, the People argued, Franks motion to withdraw evinced merely a case of "buyers remorse."
On April 11, the trial court, Judge Trentacosta, held oral argument on Franks motion. Attorney Steigerwalt argued that the record demonstrated that Frank "was not in a position to exercise free judgment" at the time he pled guilty. The People argued that the record of the plea colloquy demonstrated that Frank had exercised his free will in pleading guilty.
Judge Trentacosta quoted from the transcript of the change of plea hearing and stated that the transcript demonstrated that Frank understood the terms of the plea agreement and that he had exercised his own free will in pleading guilty. Judge Trentacosta further stated, "[T]here is simply insufficient evidence in this case that the defendant was under any mental obfuscation or unsound mind that would vitiate the plea." Judge Trentacosta denied Franks motion to withdraw the plea and placed him on probation, subject to the conditions outlined in part I, ante.
Frank timely filed a notice of appeal. Frank, thereafter, obtained the required certificate of probable cause to appeal.
A certificate of probable cause was required because Franks appeal challenges the validity of his guilty plea. (§ 1237.5.)
III.
DISCUSSION
The trial court did not err in denying Franks motion to withdraw his plea
Frank claims that the trial court erred in denying his motion to withdraw his guilty plea. Frank contends that his guilty plea was not a product of his own free will.
Frank does not contend on appeal that he pled guilty "as a result of mistake and ignorance."
A. Standard of review
Frank argues that this court should independently review his motion to withdraw his guilty plea because one judge ruled on the motion to withdraw the plea, while a different judge conducted the change of plea hearing and accepted Franks guilty plea. Consequently, Frank argues, this court is in as good a position as was the judge who ruled on his motion to withdraw to determine whether his plea was involuntary.
We assume for the sake of argument that the independent standard of review applies, and conclude that Franks claim fails under any standard of review.
B. Governing law
In People v. Sandoval (2006) 140 Cal.App.4th 111, this court outlined the general legal principles applicable to consideration of a defendants motion to withdraw a guilty plea:
"A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. [Citations.] "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 defendants 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.]" (Id. at p. 123, quoting People v. Weaver (2004) 118 Cal.App.4th 131, 145-146.)
There is a tension among appellate cases with respect to how liberal or reluctant a court should be in granting a motion to withdraw a guilty plea. (Compare People v. Ramirez (2006) 141 Cal.App.4th 1501, 1507 ["the withdrawal of a plea of guilty should not be denied in any case where it is in the least evident that the ends of justice would be subserved by permitting the defendant to plead not guilty instead "] with People v. Hunt (1985) 174 Cal.App.3d 95 (Hunt) ["leave to withdraw a plea with resulting inconvenience and expense should not be lightly granted"].) However, for the reasons stated below, even assuming that a trial court must liberally grant a motion to withdraw a guilty plea, the trial court in this case did not err in denying Franks motion.
C. Application
The strongest evidence that Frank exercised his free will in pleading guilty appears from an examination of the transcript of the change of plea hearing, described in part II, ante. In addition to expressly stating that he was pleading guilty out of his own free will, Frank was clearly an active participant in the proceedings — asking the court to repeat the terms of the plea agreement, seeking to confer with counsel, and responding appropriately to all of the courts questions. Frank contends that the trial courts observation that he appeared to be smiling in response to the courts question regarding whether he had been forced to plead guilty supports his contention that his plea was involuntary. On the contrary, the trial courts careful observation of Franks demeanor as well as the courts follow up questions, which elicited Franks statement that he was in fact pleading guilty of his own free will, tend to demonstrate that Frank exercised his own free will in pleading guilty.
While we have little doubt that Frank experienced considerable emotional stress during the period leading up to his plea of guilty, we cannot say that the evidence that Frank presented in the trial court establishes by clear and convincing evidence that the plea was not a product of his free will. (Cf. People v. Huricks (1995) 32 Cal.App.4th 1201, 1208 [rejecting defendants claim that family pressure and "natural anxiety" over serious criminal charges established that plea was not freely given].) Evidence that Frank was indecisive prior to pleading guilty and that he requested that counsel and the court repeat relevant information does not constitute evidence that Frank pled guilty involuntarily. (Ibid. [statement from defendants counsel that defendant was "confused and indecisive" about whether to plead guilty did not constitute sufficient evidence of duress to warrant withdrawal of plea].) Nor does Father Murphys declaration in which Father Murphy generally attests to Franks state of emotional distress in the period prior to and following the plea, provide clear and convincing evidence that Frank was unable to exercise his free judgment in pleading guilty.
With respect to Franks psychiatric condition, although Dr. McDades declaration indicates that Frank suffers from attention deficit disorder, depression, and anxiety, Dr. McDade does not opine that these conditions prevented Frank from exercising his free will in pleading guilty. Further, in his declaration, Dr. McDade states that Frank "verbalized regret over his decision" to plead guilty shortly after doing so. Expressions of regret are consistent with a change of mind, rather than an involuntary plea. (People v. Huricks, supra, 32 Cal.App.4th at p. 1208 ["[a] plea may not be withdrawn simply because the defendant has changed his mind"].) Further, while Frank makes a vague reference to "medication" in his brief, there is no evidence in the record to contradict Franks verbal and written reassurances at the time of his plea that he was not under the influence of any medication at the time he entered his plea.
Finally, while Frank claims that part of the reason he pled guilty was "pressure of counsel," there is no evidence of such pressure in the record, apart from Franks own statements. The trial court was not required to credit these statements. (Hunt, supra, 174 Cal.App.3d at p. 103.) It necessarily follows that this court need not credit the statements on independent review. (Compare with In re Vargas (2000) 83 Cal.App.4th 1125, 1143 [granting petition for habeas corpus where petitioner presented evidence that he was pressured into accepting the plea bargain by defense counsel, including transcript indicating that petitioner did not know the terms of the plea bargain prior to plea hearing, counsels statements indicating possible misrepresentations about the terms of plea bargain offers, and "credible evidence" that defense counsel was unprepared to go to trial].) In addition, even assuming that Attorney Patton persuaded Frank to plead guilty, this would not necessarily vitiate the voluntariness of the plea. (See People v. Urfer (1979) 94 Cal.App.3d 887 (Urfer).) In Urfer, the court concluded that "defense counsels warranty that appellant . . . ultimately yielded to my own persuasions and prejudices . . . and . . . did not plead guilty willingly was not sufficient to embrace a prima facie legal showing that appellants withdrawal of his not guilty plea was involuntary." (Id. at p. 892.) The Urfer court reasoned:
"Assuming appellant was reluctant or `unwilling to change his plea, such state of mind is not synonomous with an involuntary act. [fn. omitted.] Lawyers and other professional men often persuade clients to act upon advice which is unwillingly or reluctantly accepted. And the fact that such advice is unwillingly or reluctantly acted upon is not a . . . factor overreaching defendants free and clear judgment of what should be done to find a means to alleviate the situation with respect to which the client seeks advice." (Ibid.)
In sum, Frank presented evidence that he was experiencing significant emotional stress immediately prior to pleading guilty. However, the evidence Frank presented does not clearly and convincingly establish that his guilty plea was not the product of his own free will. Therefore, the trial court did not err in denying Franks motion to withdraw his guilty plea.
IV.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
McINTYRE, J.
OROURKE, J.