Opinion
C083870
11-13-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERT LEE SOUTHERLAND, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 16F5034, 16F4288)
Defendant Robert Lee Southerland challenges his guilty and no contest pleas, contending he was overmedicated during the time of his pleas and the trial court erred in finding his pleas were voluntary. In addition, defendant contends the trial court erred in failing to conduct a proper hearing regarding his subsequent motion to withdraw his pleas. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of the underlying offenses are not germane to the issues presented on appeal.
This case involves two separate cases where pleas were entered on the same date.
In the first case (No. 16F4288), defendant was charged on July 4, 2016, with committing false imprisonment by violence; corporal injury to a spouse, cohabitant, or child's parent; and being a felon in possession of a firearm.
In the second case (No. 16F5034), defendant was charged on July 7, 2016, with bringing or sending a controlled substance (methamphetamine) or paraphernalia into a jail and possession of illegal substances (methamphetamine) in a jail facility.
On August 29, 2016, defendant pled guilty to corporal injury to a spouse or cohabitant in the first case and possession of methamphetamine in jail in the second case. He also pled no contest to being a felon in possession of a firearm in the first case. During the plea hearing, the trial court reviewed the parties' agreement and asked if that was how defendant "ch[ose] to settle [his] case?" Defendant replied, "At this time, yes, sir." The trial court stated: "This would be the only time relevant. You can't change your mind later, unless there's some legal reason to. So that's what you understand you're pleading to; is that true?" Defendant replied, "Yes." The trial court asked, "And you are thinking clearly about this plea and the consequences?" Defendant responded, "Yes, sir." The trial court accepted defendant's pleas as free and voluntary and with a knowing waiver of rights. With the parties' agreement, the trial court released defendant on his own recognizance pursuant to a Cruz waiver.
People v. Cruz (1998) 44 Cal.3d 1247. --------
As part of defendant's pleas, he signed a plea form, including the following: "I affirmatively state that I have read [or have had read to me] and understand the contents of this plea form, and that I am making this plea agreement freely and entering this plea as indicated because I believe it is within my best interest to do so." Defendant also initialed next to the following statements: (1) "I am going to enter a 'no contest' plea. I understand that my 'no contest' plea will be treated by the Court as a plea of guilty, with the same attendant legal consequences"; and (2) "I have discussed the negotiated plea with my attorney and my attorney has answered all my questions. I have no other questions I wish to ask my attorney before entering this plea. We have discussed possible defenses and motions, and I am convinced it is in my best interest to enter this plea." In addition, the trial court indicated on the plea form that it found defendant was, "freely and voluntarily entering this plea."
The probation report filed September 28, 2016, stated: "[a]s to his plea, [defendant] would like the court to know he was over medicated [sic] from the jail, and therefore entered into a plea he did not want to. He stated he should have entered a no contest plea, but he did not have legal advice from [counsel]. In the defendant's opinion[, counsel] provided him with the discovery, but did not give him any additional advice." The report also noted defendant had been diagnosed with mental illness 20 years ago and was currently taking "numerous medications for his mental health."
On October 6, 2016, defense counsel stated defendant was "actually desiring to withdraw his plea." In addition, there was a potential claim for ineffective assistance of counsel based on "some information . . . in the probation report." Defense counsel also moved for new counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. The trial court conducted a hearing and appointed new counsel. After the hearing was concluded, defendant stated he was "trying to withdraw my plea," but the trial court told him to wait and discuss the matter with his new lawyer.
On October 27, 2016, defense counsel advised the trial court that defendant was "still considering whether to withdraw his plea." At defense counsel's request, a copy of the plea transcript was ordered.
On November 30, 2016, the parties reached an agreement to resolve new charges incurred by defendant, who had been released on his own recognizance. The parties agreed to a sentence of five years eight months on the cases at issue in this appeal, and in exchange, the new matters would be dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.
On December 6, 2016, defendant moved again for new counsel pursuant to Marsden. The trial court held a hearing and denied defendant's motion. During the hearing, defense counsel informed the trial court there was no legal basis to withdraw defendant's pleas and recommended the pleas go forward. Counsel explained he had reviewed the plea transcript, defendant's medical records surrounding the time of defendant's pleas, and the plea form. In addition, counsel had "many conversations" with defendant, and noted defendant "asked intelligent questions," which led him to conclude defendant "does understand what's going on around him, and he did so at the time of the plea." Counsel also reasoned defendant was interested in withdrawing his pleas because he "disagrees" with the "consequence[s]" of his pleas, especially given the new charges.
Later that day, the trial court sentenced defendant to state prison per the parties' agreement. At the conclusion of sentencing, defendant said, "Thank you for your time in helping me to comprehend and understand what I was confused on earlier." Defendant timely appealed and obtained a certificate of probable cause.
DISCUSSION
I
Withdrawal Of Plea
Defendant contends his pleas were not voluntary, given his statement in the probation report that he was "over medicated" at the time of his August 2016 guilty and no contest pleas. According to defendant, the trial court erred in failing to specifically inquire whether he was under the influence of medication at the time of the pleas. Defendant also points to his statement during the December 6, 2016 hearing, that he still did not understand what he had pleaded to.
As the People contend in their brief, defendant never actually moved to withdraw his pleas in the trial court. When defendant originally expressed his desire to withdraw his pleas on October 6, 2016, the trial court appointed new counsel and encouraged defendant to discuss the matter with him. At the next hearing on October 27, 2016, defendant's new lawyer advised the trial court that defendant was "still considering whether to withdraw his plea." During the next hearing on November 30, 2016, defense counsel did not move to withdraw defendant's pleas. On December 6, 2016, defense counsel informed the trial court there was no legal basis to withdraw defendant's pleas and recommended the pleas go forward. Defendant took no further steps regarding the issue, despite the trial court noting that defendant did not "agree with [counsel's] decision." Defendant "apologize[d] for all the wasted time." As this court has concluded, a defendant who fails to move to withdraw his pleas in the trial court forfeits on appeal any claim that his guilty pleas should be set aside because it was not knowingly and intelligently made. (People v. Turner (2002) 96 Cal.App.4th 1409, 1412.)
Regardless, defendant's contentions are without merit. We review a trial court's refusal to allow a defendant to withdraw his pleas for abuse of discretion. (People v. Wharton (1991) 53 Cal.3d 522, 585.) A defendant wishing to withdraw his pleas must show good cause by "clear and convincing evidence." (Ibid.; see also § 1018.) "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.) " 'Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.' " (People v. Weaver (2004) 118 Cal.App.4th 131, 146.)
At the time of the pleas, the trial court properly assessed defendant's pleas were voluntary. Defendant stated during the hearing that he understood what he was doing and was "thinking clearly about this plea and the consequences." He stated on the plea form that he understood "the contents of this plea form." Defendant also stated he was "making this plea agreement freely and entering this plea as indicated because I believe it is within my best interest to do so." The trial court noted during the December 6, 2016 hearing, that it was aware defendant was dyslexic and never graduated high school, and had given defendant additional time with his counsel to discuss both of his pleas.
In addition, the trial court appointed new defense counsel in October 2016 specifically to consider whether defendant had grounds to withdraw his pleas. During the December 6, 2016 hearing, defense counsel advised there were no legal grounds for a motion to withdraw, explaining he had reviewed the plea transcript, defendant's medical records surrounding the time of defendant's pleas, and the plea form. Although defendant stated during the hearing that he could not "recall at this moment what [he] pled guilty to," counsel stated he had observed defendant throughout "many conversations," and had concluded defendant understood what was going on around him currently and at the time of the pleas. In sum, the record indicates the trial court did not abuse its discretion in implicitly determining there was no basis for a motion to withdraw defendant's pleas.
II
Improper Hearing
Defendant further contends the trial court failed to hold a proper hearing regarding his motion to withdraw his pleas. According to defendant, the trial court erroneously relied on defense counsel's opinion that there was no legal basis for such a motion and failed to conduct a meaningful inquiry into defendant's reasons for wanting to withdraw his pleas. In addition, defendant argues, the trial court was not aware of defendant's statement to the probation officer that he was overmedicated when he entered his pleas.
Defendant relies on People v. Brown (1986) 179 Cal.App.3d 207, 211, where defense counsel informed the trial court during the sentencing hearing that the defendant wanted to move to withdraw his pleas, but counsel would not do so because she did not believe there was any legal basis for such a motion. Counsel gave no further explanation for her belief. The defendant asked for another lawyer, but the trial court refused, without holding a Marsden hearing. (Brown, at p. 212.) The trial court also denied the defendant's motion to withdraw his pleas. (Id. at p. 213.) The appellate court remanded the matter for the defendant to make a motion to withdraw his pleas, reasoning the "[d]efendant was entitled to have the motion presented to the court by his attorney of record." (Id. at p. 215.) However, the Brown court did not hold that reversal is required whenever defense counsel refuses to present a motion to withdraw a defendant's pleas. As Brown explained, counsel could not be required to make a motion, "which, in counsel's good faith opinion, is frivolous or when to do so would compromise accepted ethical standards." (Id. at p. 216.)
Unlike Brown, the trial court appointed new counsel, as defendant requested, in order to consider whether there was a legal basis for a motion to withdraw defendant's pleas based on his claim that he was overmedicated at the time of his pleas. Although defense counsel ultimately refused to make such a motion, unlike the attorney in Brown, he explained why he believed there was no legal basis to withdraw defendant's pleas. As counsel stated to the trial court, he investigated the issue by reviewing the plea transcript, defendant's medical records surrounding the time of defendant's pleas, and the plea form. Defense counsel also spoke with defendant multiple times and was able to conclude defendant understood at the time of the pleas the circumstances and consequences of his pleas. We find no error.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, J. We concur: /s/_________
Raye, P. J. /s/_________
Hoch,. J.