Opinion
F041990.
11-4-2003
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY WILLIAM OSBORN, Defendant and Appellant.
Dean J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Robert P. Whitlock and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Pursuant to a plea agreement, appellant Anthony William Osborn pled no contest to false imprisonment (Pen. Code, § 236) and admitted allegations he had suffered a juvenile adjudication of robbery that qualified as a "strike" and had served a prison term for a prior felony conviction (§ 667.5, subd. (b)). Also pursuant to the plea agreement, the court dismissed charges of rape (§ 261, subd. (a)(2)), making a criminal threat (& sect; 422) and battery against a spouse or cohabitant (§ 243, subd. (e)(1)).
Except as otherwise indicated, all statutory references are to the Penal Code.
We use the terms "strike," in its noun form, and "strike adjudication" to describe a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the "three strikes" law (§§ 667, subds. (b)-(i); 1170.12).
Appellant later moved to withdraw his plea. The court denied the motion. Subsequently, appellant asked the court to strike his strike adjudication. The court denied this request and imposed a prison sentence of five years, consisting of the two-year midterm on the substantive offense, doubled pursuant to the three strikes law (§§ 667, subd. (e)(1); 1170.12, subd. (c)(1)) for a total of four years, and one year on the prior prison term enhancement.
On appeal, appellant contends the court erred in (1) denying appellants motion to withdraw his plea and (2) refusing to strike his strike adjudication. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of the instant offense are taken from the report of the probation officer, which is based, in turn, on "reports completed by the Kern County Sheriffs Department."
According to Tammy Kuiper, on the morning of July 28, 2002, Kuiper was at home packing her belongings in preparation of moving when appellant, Kuipers "live-in boyfriend," demanded that she have sex with him. When Kuiper refused, appellant "grabbed her by her hair and threw her onto the bed"; "slapped her in the face with an open hand"; "pulled her pants down"; "ripped her panties off"; and, despite her repeated demands that he stop, "pushed her head into the pillows and forced himself on her." Kuiper told deputies that appellant penetrated her vagina with his penis.
After appellant was "finished," Kuiper telephoned her sister (S.) "to come pick her up." Shortly after S. arrived, appellant induced her to leave the residence, at which point he locked the front door and "yelled" at Kuiper that he would "kill anyone who comes over here to help [her] try and move . . . ." When Kuiper tried to leave the living room, appellant pushed her onto the couch and told her that if she left him he would kill her and "slit [her] throat . . . ." Eventually, appellant left the room, at which point Kuiper left the residence and drove off with her sister.
S. told deputies that when she was outside she heard appellant threatened to kill Kuiper and "`slit [her] throat." S. saw appellant lying on top of Kuiper on the couch and heard him say he would "`kill anybody, including your family if they come over here to help you move."
Appellant told deputies the following. She and Kuiper argued, after which they had consensual, albeit "`rough," sex. He denied ripping Kuipers clothes off, slapping her and threatening to kill her.
Appellants Plea
Prior to entering his plea, appellant told the court, inter alia, the following: no one had threatened him or anyone close to him in an attempt to force him to plead no contest; he was entering his plea voluntarily; and he had had enough time to discuss his case with his attorney.
Hearing on Motion to Withdraw Plea
At the hearing on his motion to withdraw his plea, appellant testified that a "few days before" his pre-preliminary hearing he spoke with his lawyer, Arthur Gonzales, for less than five minutes at the Lerdo facility. Gonzales "gazed through the [police] report" as he spoke to appellant. Gonzales "let [appellant] know what he was charged with," but when appellant asked for a copy of the police report Gonzales did not answer. Gonzales did not ask appellant for his version of the events upon which the charges against him were based.
Except as otherwise indicated, the remainder of the factual statement is taken from appellants testimony.
Gonzales also told appellant that according to the police report the victim had been taken to the hospital. Surprised, because he had "done no harm to her," appellant asked if there were any medical reports containing evidence against him. Gonzales did not answer.
Appellant next spoke with Gonzales in the courtroom on the day of the pre-preliminary hearing for "[a]bout a minute." Gonzales told appellant the prosecutor had offered him a plea agreement under which he would receive a sentence of seven years. Gonzales did not discuss any defenses available to appellant. Gonzales "more or less made [appellant] feel that [appellant] was more or less convicted already, so [appellant] asked him to go in and ask for a . . . deal with less [prison] time." Gonzales talked to the prosecutor for less than a minute, returned to appellant and told appellant the prosecutor "wasnt going for it." Appellant asked if he could have time in which to talk to his family. Gonzales said he would try to give appellant a week to talk to his family.
Appellant next spoke to Gonzales a few days later in court on the date set for the preliminary hearing. Appellant knew he would either have to enter a plea that day or proceed with the preliminary hearing. Prior to the hearing, he had discussed the prosecutions offer with his parents. In the courtroom, Gonzales asked appellant "if [he] was ready to take the seven . . . ." Appellant responded, "not really," and "again asked for the medical report," but Gonzales "again failed to show it to [appellant]."
Shortly thereafter, "[c]ourt began," and the judge began asking appellant questions. Appellant did not hear everything the judge was saying because "nothing was settled" regarding a plea agreement and he was arguing with Gonzales. Eventually, appellant "turned around and started listening to [the judge]," "gave up [his] rights" and entered his plea, but he did not understand everything the judge was saying because his attention had been diverted by his argument with Gonzales.
Appellant remembered telling the judge he was pleading no contest "of [his] own free will" and that he had had enough time to talk to his lawyer, but he did so because he "just felt like [he] was being rushed" and "pressured into taking the seven."
Gonzales testified he met with appellant at Lerdo on August 6, 2002, at which time he discussed with appellant the police report, the charges against appellant; appellants "exposure"; and the fact that two of the offenses with which appellant was charged, rape and making a criminal threat, were "strike offenses." Gonzaless notes of that meeting indicate the following: appellant stated he and Kuiper "had an argument, had sex, but it was consensual"; appellant "denied using force to have sex"; and appellant stated "the victim is not going to proceed with charges."
The remainder of the factual statement is taken from Gonzaless testimony.
Gonzales next met with appellant on August 9 at the pre-preliminary hearing, and spent "quite a bit of time" with him. At some point after Gonzales met with appellant on August 6 and prior to August 9, the prosecutor had proposed to Gonzales that appellant plead to one of the two potential strike offenses in exchange for a sentence of no more than seven years. Gonzales conveyed this offer to appellant on August 9. Thereafter, Gonzales made a counter proposal to the prosecutor: appellant would plead to a non-strike offense and would receive no more than seven years in prison. The prosecutor "initially" rejected this proposal. Gonzales was "pretty sure" he conveyed this development to appellant.
August 12 was "confirmed" as the hearing date for the preliminary hearing. Appellant indicated to Gonzales he wanted some time to consider the prosecution offer and discuss it with his parents. Gonzales was "pretty sure" the court agreed that the prosecution offer would remain open.
On August 12, the preliminary hearing was about to begin when appellant told Gonzales he wanted to accept the prosecution offer. Gonzales then spoke with the prosecutor, and it was agreed appellant, rather than pleading to a potential strike offense, "would plead to non strike for seven year maximum." Thereafter appellant entered his plea. There was no argument between appellant and Gonzales.
At some point prior to the entry of the plea, Gonzales "explained to [appellant] that regarding the [police] reports, it would be his side of the story versus the victims [sic] and witnesss story. In terms of that being the defense, it would be who the jury believed."
Other than meeting with appellant on August 6, Gonzales "conducted no investigation in this case . . . ."
DISCUSSION
Motion to Withdraw Plea
Appellant first suggests that his plea was not an act of free will because he was "rushed" and "pressured" into pleading no contest and he "did not understand what the judge was telling him when he was taking his plea," and therefore the court erred in denying his motion to withdraw his plea. There is no merit to this contention.
"[Penal Code] Section 1018 permits a trial court to allow a criminal defendant to withdraw his guilty plea `for a good cause shown." (People v. Wharton (1991) 53 Cal.3d 522, 585.) "Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea." (People v. Cruz (1974) 12 Cal.3d 562, 566.) "It is the defendants burden to produce evidence of good cause by clear and convincing evidence." (People v. Wharton, supra, 53 Cal.3d at p. 585.) "Penal Code section 1018 . . . requires liberal construction of its provisions to promote justice. However, the promotion of justice includes a consideration of the rights of the prosecution, which is entitled not to have a guilty plea withdrawn without good cause." (People v. Hightower (1990) 224 Cal.App.3d 923, 928.)
"[T]he withdrawal of a plea of nolo contendere, like the withdrawal of a guilty plea, is within the sound discretion of the trial court after due consideration of the factors necessary to bring about a just result." (People v. Rivera (1987) 196 Cal.App.3d 924, 926-927.) "An appellate court will not disturb the denial of a motion [to withdraw a plea] unless the abuse is clearly demonstrated." (People v. Wharton, supra, 53 Cal.3d at p. 585, internal quotation marks omitted.)
On a defendants motion to withdraw a plea of guilty or no contest, "the trial court . . . is the trier of fact and hence the judge of the credibility of the witnesses or affiants. Consequently, it must resolve conflicting factual questions and draw the resulting inferences. [Citation.] As is the case with most other evidentiary rulings by a trial court, we apply the substantial evidence rule on appellate review. [Citation.] Under this rule, we `must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Quesada (1991) 230 Cal.App.3d 525, 533.) "[I]n determining the facts [with respect to a claim that a defendant did not understand his or her plea or its consequences], the trial court is not bound by uncontradicted statements of the defendant." (People v. Hunt (1985) 174 Cal.App.3d 95, 103.)
Here, the court was not compelled to accept appellants testimony that he was "rushed" into entering his plea. The court reasonably could have credited appellants statement at the time of the entry of his plea that he had had enough time to discuss matters with his attorney. Similarly, the court was not compelled to accept that appellant "did not understand what the judge was telling him" at the hearing at which he entered his plea. As best we can determine, appellant bases that claim, in turn, on the claim that he was arguing with his attorney while the judge was speaking to him. However, the court reasonably could have instead believed the testimony of appellants counsel that no such argument occurred. Moreover, the court reasonably could have believed appellants statement at the time of the entry of his plea that he was entering his plea voluntarily.
Appellant also contends the court abused its discretion in denying his motion to withdraw his plea because, he asserts, his plea was the product of his counsels constitutionally deficient performance. This contention too is without merit.
"The pleading—and plea bargaining—stage of a criminal proceeding is a critical stage in the criminal process at which a defendant is entitled to the effective assistance of counsel guaranteed by the federal and California Constitutions. [Citations.] It is well settled that where ineffective assistance of counsel results in the defendants decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea." (In re Alvernaz (1992) 2 Cal.4th 924, 933-934.)
"To prevail on a claim of ineffective assistance, a defendant must show both that counsels performance was deficient—it fell below an objective standard of reasonableness—and that defendant was thereby prejudiced." (People v. Cash (2002) 28 Cal.4th 703, 734.) "The . . . `prejudice[] requirement [of a claim of ineffective assistance of counsel in the context of a defendants plea of guilty,] . . . focuses on whether counsels constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the `prejudice requirement, the defendant must show that there is a reasonable probability that, but for counsels errors, he would not have pleaded guilty and would have insisted on going to trial. (Hill v. Lockhart (1985) 474 U.S. 52, 59, fn. omitted.)
The defendant "`must carry his burden of proving prejudice as a "demonstrable reality," not simply speculation as to the effect of the errors or omissions of counsel." (People v. McPeters (1992) 2 Cal.4th 1148, 1177.) "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding
. . . ." (People v. Cox (1991) 53 Cal.3d 618, 656, internal quotation marks omitted.) Moreover, "`a court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." (Ibid.)
Appellant faults his counsel for "conduct[ing] no investigation whatsoever and fail[ing] to interview witnesses who could provide exculpatory evidence." But nothing in the record indicates such evidence exists. Thus, appellant has not demonstrated that there is any probability, much less a reasonable probability, that he would have proceeded to trial had counsel conducted investigation beyond review of the police report and discussion with appellant. Therefore, appellant has not established prejudice. (People v. Williams (1988) 44 Cal.3d 883, 917, fn. 12 ["[t]he scope of an appeal [based on a claim of ineffective assistance of counsel] is, of course, limited to the record of the proceedings below"]; cf. People v. Berryman (1993) 6 Cal.4th 1048, 1082 [claim of ineffective assistance of counsel at trial failed where defendant "[did] not demonstrate that the investigation would have yielded favorable results and hence [did not] demonstrate that its omission adversely affected the outcome within a reasonable probability"]; In re Avena (1996) 12 Cal.4th 694, 738 ["`"[w]e cannot, and will not, predicate reversal of a judgment on mere speculation that some undisclosed testimony may have altered the result""].
Appellant also contends his counsel was ineffective because he "did not properly advise [a]ppellant regarding possible defenses." However, counsel testified that based on the police report he advised appellant his defense would be to testify to "his side of the story." The court reasonably could have believed this testimony. And appellant offers no suggestion as to what other defenses were available to him about which counsel did not advise him. Thus, appellant has again failed to establish prejudice.
Finally, appellant contends, counsel was constitutionally ineffective in "refus[ing] to show" appellant certain exculpatory evidence including, as best we can determine, medical evidence regarding the victim. However, the implicit claim that such evidence exists is not supported by the record. Again, appellant has failed to meet his burden of establishing that he was prejudiced by counsels conduct.
Courts Refusal to Strike Appellants Strike Conviction
Appellant contends the court abused its discretion in refusing to strike appellants strike adjudication.
Governing Law
Section 1385 provides, in relevant part, "The judge or magistrate may, . . . in furtherance of justice, order an action to be dismissed." (& sect; 1385, subd. (a).) In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero), the California Supreme Court concluded that "section 1385[,] [subdivision] (a) . . . permit[s] a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law."
In determining whether to strike a prior conviction, a court must consider "both the constitutional rights of the defendant, and the interests of society represented by the People . . . ." (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530, internal quotation marks omitted.) "The touchstone for that determination is whether `in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes] schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. [Citations.]" (People v. Cluff (2001) 87 Cal.App.4th 991, 997-998.)
"[T]he superior courts order [i]s subject to review for abuse of discretion. This standard is deferential. [Citations.] But it is not empty. Although variously phrased in various decisions [citation], it asks in substance whether the ruling in question falls outside the bounds of reason under the applicable law and the relevant facts [citations]." (People v. Cluff, supra, 87 Cal.App.4th at p. 998, internal quotation marks omitted.) And "[a]n appellate court is not authorized to substitute its judgment of the relative weights of aggravating and mitigating factors properly considered by the trial court. [Citations.] `It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial courts ruling, even if we might have ruled differently in the first instance." (People v. Zichwic (2001) 94 Cal.App.4th 944, 961.)
Facts Relevant to Appellants Motion to Strike his Strike Adjudication
Appellant suffered his strike adjudication in 1993 when he was 16 years old. Appellant and his accomplices robbed the victim of $1.00, a watch and a pager. Appellant struck the victim in the face "several times" with his fist and "kicked out" the window of the victims car.
On June 17, 1994, appellant committed three relatively minor Vehicle Code violations, including driving without a valid drivers license (Veh. Code, § 12500, subd. (a)). Ten days later, appellant committed vehicle theft (Veh. Code, § 10851) and a violation of section 417, subdivision (a)(1) (brandishing a deadly weapon other than a firearm). The court continued appellant on juvenile probation.
On March 26, 1995, appellant committed the offense of possession of an alcoholic beverage by a person under the age of 21 (Bus. & Prof. Code, § 25662, subd. (a)); two days later he committed an assault (§ 241) and a battery (§ 243); and in April 1995 appellant committed a violation of section 647, subd. (f) (disorderly conduct). For each of these offenses he received three years misdemeanor probation.
In July 1997, appellant was convicted of driving under the influence of drugs and/or alcohol (Veh. Code, § 23152, subd. (a)) and reckless driving while attempting to elude a peace officer (Veh. Code, § 2800.2). He was sentenced to four years in prison, and released on parole in August 1999.
In his memorandum of points and authorities in support of his motion to strike his strike adjudication, appellant claims as follows: from August 22, 1999, to the date of his arrest he was employed as a truck driver, earning $16.00 per hour; "he pays his bills on time, including his child support obligation"; his mother suffers from terminal cancer; and if appellant is sentenced under the three strikes law he will not be with his mother "during her final days."
Analysis
Appellant contends "[i]t was an abuse of discretion for the trial court to use a nine-year-old juvenile strike to enhance Appellants sentence, especially in light of Appellants significant advancement towards his own rehabilitation, the questionable nature of Appellants conviction, and the looming death of Appellants mother." It appears that appellant characterizes his conviction in the instant case as "questionable" because, he asserts, the victim suffered "no injuries" and "she did not wish to pursue charges against Appellant."
There is no indication the courts refusal to strike appellants strike adjudication exceeded the bounds of reason. Appellants history of criminal activity began in 1996 when he was 16 years old. In addition to the instant offense, appellant has suffered one adult felony conviction, a juvenile adjudication of an offense serious enough to qualify as a strike and several misdemeanors. He has received multiple grants of probation and a grant of parole, and he has served a prison term. Thus, appellant has demonstrated a continuing pattern of reoffending regardless of past sanctions and attempts to rehabilitate through the juvenile justice system, probation, and parole. That appellant apparently has achieved some degree of stability in his life, and has avoided reoffending for almost three years since being released from prison in 1999 only suggests this matter may have been within the range of cases as to which the trial court had discretion under section 1385 to strike appellants strike adjudication, but those factors do not compel the striking of a strike. It was not irrational for the court to refuse to treat appellant as if he had not previously suffered an adjudication of a serious felony, and we decline appellants invitation to substitute our judgment for that of the trial court.
DISPOSITION
The judgment is affirmed.