Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. BB624521
Premo, J.
Defendant Richard Lawrence Stewart pleaded no contest to one count of petty theft with prior convictions (Pen. Code, § 666) and admitted allegations that he had three prior strike convictions (§§ 667, subd. (b), 1170.12) as well as seven “prison priors” (§ 667.5, subd. (b)). After the trial court denied his Romero motion and two subsequent motions to withdraw his plea, Stewart was sentenced to a total term of 25 years to life.
Subsequent unspecified statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On appeal, having obtained a certificate of probable cause, Stewart argues that the trial court erred in denying his Romero motion and in denying his first motion to withdraw his plea. Alternatively, he argues that his sentence violates the federal and state prohibitions against cruel and unusual punishment, and that his counsel was ineffective for failing to object to his sentence on these grounds. He further claims that his counsel was ineffective for failing to bring a renewed Romero motion on the basis of his mental evaluations.
We disagree with all of Stewart’s arguments and shall affirm.
I. Factual and Procedural Background
As Stewart pleaded no contest to the charges, we derive the facts from the probation report and other documents in the record on appeal.
According to the probation report:
“On December 23, 2006 at 5:09 p.m., Mountain View police officers were dispatched to Sears, 455 San Antonio Road due to a shoplifter in custody.
“The security officer showed the officers the video in which [Stewart] took two watch sets, each valued at $29.99, from a display table and put them under his sweatshirt. He walked past several registers, and left the store without paying for the concealed merchandise. [Stewart] ran from store security when confronted outside of the store. When [Stewart] was apprehended, security recovered the stolen merchandise.
“After waiving his Miranda rights, [Stewart] admitted taking the two boxed watch sets, putting them under his sweatshirt and leaving the store without paying for them. He did not intend to steal the merchandise when he entered the store. He had no money and came with his cousin. As he walked around the store, he thought the watch sets would make good presents, and decided to steal them.
Miranda v. Arizona (1966) 384 U.S. 436.
“[Stewart] was arrested and booked into county jail.”
Stewart was subsequently charged by amended complaint with one count of petty theft with a prior conviction for automobile theft. (§ 666, Veh. Code, § 10851.) The amended complaint further alleged that Stewart had two prior convictions for forced oral copulation in concert (§ 288a, subd. (d)) and one prior conviction for assault with a deadly weapon (§ 245, subd. (a)(1)), each of which counted as both strikes and prior prison offenses (§§ 667, subds. (b)-(i), 1170.12, subd. (c)(2)(A), 667.5, subd. (b)). Stewart was also alleged to have four additional prison-prior offenses, two for possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), one for felony evading (Veh. Code, § 2800.2, subd. (a)) and one for sale or transportation of a controlled substance (Health & Saf. Code, § 11352).
After Stewart’s Romero motion was denied, he moved to withdraw his plea based on what he claimed was the mistaken advice of his appointed counsel. That motion was also denied, but the trial court appointed two psychotherapists to evaluate Stewart and determine if there was a basis for allowing Stewart to withdraw his plea due to mental health deficiencies. After those evaluations were completed, Stewart again moved to withdraw his plea based on the grounds that he failed to understand the consequences of the plea and that his appointed counsel failed to adequately investigate his mental health deficiencies. That motion was also denied. At sentencing, the trial court struck Stewart’s prison priors and sentenced him to a total term of 25 years to life.
The relevant facts and evidence presented to the trial court in connection with the Romero motion and the first motion to withdraw Stewart’s plea are set forth in the appropriate sections of the discussion below. Stewart does not challenge the denial of his second motion to withdraw his plea.
II. Discussion
A. Romero motion
After entering a plea of no contest, Stewart moved to dismiss his three prior strike convictions. The trial court denied the motion and, on appeal, Stewart challenges the court’s refusal to dismiss the two strikes arising out of his 1986 conviction on two counts of forcible oral copulation in concert.
1. Relevant facts and procedure
a. Prior strikes
According to the probation report, which summarized information obtained from the district attorney’s office, “[r]egarding Strike Priors #1 and #2..., on August 11, 1986, the 16 year old defendant, who was on parole, and four other males, who were on parole or probation, were driving around East Palo Alto. They saw the victim, who they knew, walking with her step-sister. The defendant told the victim to get into the car as ‘the boss wants to see you.’ When she refused, the defendant put her in a choke hold and dragged her across the street and into the vehicle. He forcibly took her purse, and a co-defendant removed $25 from it. The driver drove to a dead-end street, and the victim was moved to the front seat and told to orally copulate a co-defendant. When she resisted, she was slapped and told she would be thrown into nearby water if she did not comply. Another co-defendant forced her mouth open while another co-defendant sat on her legs. She orally copulated the ‘boss’ for 15 to 20 minutes. She orally copulated another co-defendant for 10 minutes. The defendant and a co-defendant removed the victim’s pants and held her legs open, while the defendant forcibly raped her for 30 minutes.
“While restrained, the victim was forced to orally copulate a third co-defendant. The remaining co-defendant told her, ‘I’m going up the rear without any grease!’ He was unable to penetrate the victim, and three of the four co-defendants drove away. When they returned, the ‘boss’ told one of the co-defendants to return the victim’s clothing. It had been thrown in the water; they all left, throwing her a pair of pants. The victim had bruising on her body and sperm in her mouth and vagina.
“The defendant was arrested two days later. He told the police the victim is ‘known for doing the things she do.’ He acknowledged he did not use his head by saying ‘no’ and going along with the group. He claimed the victim was not forced, and complained because she had to walk home.
“The defendant was found unfit, and certified to Adult Superior Court. On June 5, 1987, he was sentenced to a seven year, four month prison term, and paroled July 28, 1990.
“Regarding Strike Prior #3..., on June 12, 1992, the 22 year old defendant, while on parole, provided drugs to the victim in a parking lot. When the victim tried to leave without paying, he was dragged from his truck, and a minor co-participant punched and kicked him. The defendant hit the victim with a golf club. When the co-participant drove away in the victim’s truck, the victim tried to jump into the bed of the truck; however, he fell and cracked his head on the pavement, dying later that day in the hospital.
“The defendant was arrested two days later and returned to prison for parole violations. He was not sentenced for this charge until June 2, 1994, when he received a four year prison term. Parole was violated on seven occasions.”
“In regards to Strike Priors #1 and #2, the defendant, then 16 years old, admitted to orally copulating the victim, and claimed it was consensual. He did not know her age. He denied raping her; otherwise, he would have been convicted of rape. He was ‘tricked’ into a plea bargain when he was 17, tried as an adult and sent to state prison. He would be ‘willing to go back to trial in that case’ in order to prove his innocence because the victim wrongly accused him of using force. The victim, who had a history of prostitution, was angry after he failed to provide her with cocaine, as promised, in exchange for sexual behavior. The defendant believed the victim called the police because she was angry at him and his co-defendants since she was forced to walk home. The defendant does not know how the victim’s body was bruised, and is uncertain if it was due to his co-defendants’ actions.
“In regards to Strike #3, the defendant readily admitted responsibility for his behavior and did not dispute details of the offense. The defendant expressed remorse for his behavior and for the victim.”
b. Adult criminal record
Including the three strike convictions, Stewart’s adult criminal record “consists of eight felonies and two misdemeanors. The felonies include: two counts of Forced Oral Copulation in Concert in 1986, result[ing] in a seven year prison term, Possession of Controlled Substance in 1990, result[ing] in a 16 month prison term and one violation of parole, Auto Theft and Reckless Driving While Evading Police in 1992, result[ing] in a three year prison term, Sales of Crack Cocaine in 1993, result[ing] in a three year prison term, Assault with a Deadly Weapon in 1994, result[ing] in a four year prison term and seven parole violations, and Possession of [a] Controlled Substance in 2001, result[ing] in a grant of probation which was revoked and ended in a three year prison term and four parole violations. The misdemeanors include two Being Under the Influence of Drugs, one in 1991 and the other in 1996. The defendant was granted probation in each matter, and the latter grant was revoked. The defendant was discharged from parole on July 15, 2006, five months before the instant matter.”
c. Social history
With respect to his social history, Stewart “reported he has ‘been through a lot’ and ‘has a troubled past.’ He has never married, nor does he have children. The defendant was extremely brief and cautious as he discussed his life from early childhood to his present arrest. He did ‘not want the Court to consider it as an excuse or that (he is) escaping responsibility.’ The defendant acknowledged his mother passed away when he was young, and he is the youngest of nine children. He could not recall the circumstances of his mother’s death or his exact age when she passed away. The defendant’s father, who died in 2003 at the age of 91, was never a presence in his life. The defendant was raised by his maternal grandfather. He experienced limited structure and supervision because his grandfather was also raising many of his cousins and one other sibling. The defendant spent a lot of time ‘on the streets’ and subsequently became addicted to crack cocaine at the age of 15. The defendant lost three brothers to AIDS, one sister to cancer and one brother to poisoning under suspicious circumstances. The defendant could not recall the last grade he attended in school. When informed his records reflected a second or third grade level, the defendant shrugged his shoulders, and emotionally replied, ‘I honestly don’t know.’ The defendant declined to provide any further comments, citing his family and personal background were not an excuse for his behavior. He stated, ‘I create what happens to me.’
“In regards to substance abuse, the defendant began smoking crack cocaine on a daily basis from the age of 15 until his arrest in the present matter. He was unsure of the quantity of his drug use. Although he experienced brief periods of sobriety, his addiction would take over and he could not stop. He hates using cocaine as it makes him feel depressed. He experienced deeper feelings of depression when the chemical effect wore off, so he continued to smoke more cocaine to avoid this ‘lowest’ feeling of depression. Although he previously believed his ‘will power’ could overcome his addiction, he now recognizes and accepts the need for professional help, for he can ‘not do it alone.’ While on parole, the defendant attended Project 90 and Free at Last Drug programs, however, he did not finish them as he was ‘not sincere or ready to change.’ The defendant is presently unable to participate in custodial treatment programs based on his classification level; he would welcome the opportunity if available. Throughout his life, the defendant committed thefts and sporadically sold drugs to support his addiction. The defendant smoked marijuana almost daily from the age of 15 until his arrest. The defendant reported he has never had a problem with alcohol, and felt his alcohol use was insignificant. He first tried beer at the age of 15 but rarely drank in his youth. As an adult, he drinks ‘here and there, ’ but is ‘not a big drinker.’ The defendant denied used or experimentation with any other substances. [Sic.]
“Regarding his mental health, the defendant advised he suffered from ‘severe depression’ for ‘years.’ While in custody, he is taking Zoloft and Haldol. He was recently prescribed Haldol as he began hearing voices. The defendant did not believe his medication has affected his ability to comprehend or communicate with the undersigned. While on parole, the defendant regularly attended psychiatric services offered through the Parole Outpatient Clinic; he took Zoloft as prescribed. The defendant believed the medication helped with his frequent feelings of anxiety and depression; he is receptive toward treatment. The defendant attempted suicide as a juvenile, as well as in 2006, which resulted in a brief psychiatric hold and hospital commitment in San Mateo County. The defendant cut his arm and wrist; the scars were visible to the undersigned. When asked to describe his feelings during these incidents, or if he intended to kill himself, the defendant paused and replied, ‘I was frustrated, I had lost everything.’ The defendant claimed he never held a job due to his mental health and substance abuse issues. He received SSI for the past year.”
d. The probation officer’s evaluation and recommendation
In the report, the probation officer noted that Stewart “presented himself as a street savvy and simple individual, who lacked the emotional responses and social developmental skills commonly reflective of someone his age.” He was “forthright about his criminal conduct in the present offense, and never attempted to excuse his behavior.”
In aggravation, the report cited Stewart’s past violent offenses, numerous convictions resulting in multiple prison terms, and unsatisfactory performance on probation and parole. Furthermore, Stewart continued to deny responsibility for his conduct which led to the first two strike convictions, has never been employed and has limited support in the community.
In mitigation, the probation officer noted that Stewart entered an early plea and accepted responsibility for the crime in the instant case, which is also less serious than his prior convictions. Stewart suffered from mental health issues and drug addiction, reducing his culpability for the crime. Finally, he has not engaged in violent crime since his most recent strike conviction in 1994.
The probation officer acknowledged that, “[d]ue to the nature of the present offense, a 25 year to life prison sentence appears excessive.” After noting that there was concern about Stewart’s failure to take responsibility for the first two strikes, the report suggested that they could be stricken as they occurred over 20 years ago when Stewart was only 16 years old. Ultimately, however, the probation officer recommended the court impose a sentence of 25 years to life, plus consecutive one year sentences for four of Stewart’s most recent prison priors, for a total term of 29 years to life.
e. The trial court’s decision
After taking the matter under submission, the trial court stated that it had taken into account Stewart’s family history, including “the early death of his mother, the nonexistent presence of his father, [and] the untimely death of five of his siblings.” The court indicated that it also considered the age of the prior strike convictions, Stewart’s age at the time of those convictions, his mental health issues, and drug addiction as well as the briefs, probation report, and certain supportive letters submitted by Stewart, his fiancée and a former sponsor in a rehab program.
The trial court noted that its decision was “a very difficult one because the current offense is nonviolent and relatively [de minimis].” However, it found that Stewart did not fall outside the spirit of the three strikes law for the following reasons: (1) Stewart’s three prior strike convictions “are egregious and involve violence”; (2) Stewart refused to take responsibility for the crimes, despite having pleaded to the charges; (3) in the current probation report, Stewart “still fails to accept responsibility for the sexual assault case”; and (4) Stewart “has not led a crime-free life since the third strike convictions, ” was on parole when he committed each of the three strike crimes, and in the 22 years since his first strike convictions has only been free of custody for approximately one year. Accordingly, the trial court denied the Romero motion and did not dismiss any of the three strikes.
2. Standard of review
A defendant has the right to seek review of a trial court’s decision not to strike a prior conviction. (People v. Carmony (2004) 33 Cal.4th 367, 376.) The trial court’s decision is reviewed under the abuse of discretion standard, and the burden on defendant is to show that the court’s decision was “ ‘ “irrational or arbitrary.” ’ ” (Ibid.) In reviewing a ruling on a motion to strike priors under section 1385, the court “must consider 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 scheme’s 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.” (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) “[A]n appellant who seeks reversal must demonstrate that the trial court’s decision was irrational or arbitrary. 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 court’s ruling, even if we might have ruled differently in the first instance.” (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.)
3. The trial court acted within its discretion in denying the motion
Stewart has not established that the trial court abused its discretion in failing to strike any of his prior convictions for purposes of the Three Strikes law. The trial court acknowledged the tragic circumstances of Stewart’s life and on-going mental health issues, but carefully balanced the factors of his background, character and prospects, as required by the Supreme Court. (Williams, supra, 17 Cal.4th at p. 161.) Given Stewart’s long criminal history, his long-standing substance abuse problems, his repeated violations of parole and probation, and the fact that the present crime was committed only five months after being discharged from parole in another case, the judge acted well within his discretion in denying the motion.
4. Stewart’s sentence is not “cruel and unusual punishment”
The Attorney General maintains that Stewart’s failure to raise a constitutional challenge to his sentence in the trial court forfeits the issue on appeal because such a challenge is fact specific and must be raised below before it can be asserted on appeal. (People v. Norman (2003) 109 Cal.App.4th 221, 229.) However, because Stewart alternatively argues that he was prejudiced by the ineffective assistance of his counsel in failing to raise such a constitutional challenge, we will consider the issue on the merits in the interest of judicial economy. (Id. at p. 230.)
Both the federal and state Constitutions proscribe cruel and unusual punishment by prohibiting punishment that is grossly disproportionate to the severity of the offense. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17; Harmelin v. Michigan (1991) 501 U.S. 957, 1001; People v. Marshall (1990) 50 Cal.3d 907, 938.) The United States Supreme Court has expressly found that California’s three strikes law did not violate the Eighth Amendment in Ewing v. California (2003) 538 U.S. 11 (Ewing). The Supreme Court explained that in enacting the three strikes law, the California Legislature made a judgment “that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice.” (Id. at p. 25.) In addressing the gravity of the offense compared to the harshness of the penalty, the Supreme Court emphasized that the gravity of the defendant’s offense included not only his current felony, but also his history of felony recidivism. (Id. at p. 29.)
Stewart argues that his “trivial offense, ” consisting of shoplifting two watch sets with a combined value of $59.98, weighs against the severe punishment he received. He asserts that his first two strike offenses were not only remote in time but occurred when he was only 16 years old. He characterizes his record since his third strike conviction as one “of a petty offender with substance abuse problems--problems which [he] has now acknowledged and has expressed a willingness to finally address.”
Although the most recent offense was relatively minor in nature, we disagree that Stewart’s recent criminal history is of little consequence, particularly because this history consists of repeated offenses. These offenses are followed by either incarceration or probation (which is subsequently revoked due to a probation violation) and parole (which is also violated). Stewart has been afforded multiple opportunities to reform his conduct, but has failed to do so. Accordingly, we cannot view his current punishment as a recidivist under the Three Strikes law as grossly disproportionate to his crime. We thus conclude that his sentence does not offend the Eighth Amendment and we need not consider further comparisons. (Ewing, supra, 538 U.S. at pp. 30-31.)
In analyzing the separate prohibition against cruel or unusual punishments provided in the California Constitution, the California Supreme Court has said that a sentence will violate the state Constitution if “it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) Although Lynch sets forth a rather lengthy, threefold examination of the question of disproportionality (see id. at pp. 425-429), we believe there must be a point when the standard version of the argument, such as that made here, may be summarily rejected. (See, e.g., People v. Cortez (1999) 73 Cal.App.4th 276, 286.)
To the extent that Stewart relies on the nature of his offense and the disproportionate punishment under the recidivist statutes of other jurisdictions, we summarily reject his argument for the reasons stated fully in People v. Cooper (1996) 43 Cal.App.4th 815, 825-828. To the extent that Stewart relies on the nature-of-the-offender factor, we conclude that the assertion that his sentence is cruel and unusual rings hollow when considered against his lengthy, serious record. Stewart cites no case holding that such a sentence, given such a record, is unconstitutional.
5. Stewart’s counsel was not ineffective for failing to object
Having concluded that Stewart’s sentence is not unconstitutionally cruel or unusual under either the federal or state Constitutions, his counsel could not be ineffective for failing to raise this objection to the trial court.
B. The first motion to withdraw Stewart’s plea
Stewart brought two motions to withdraw his plea, both of which were denied. He challenges only the denial of the first of those motions.
Following the denial of his Romero motion, Stewart moved to withdraw his no contest plea on the grounds that his counsel provided erroneous advice.
1. Relevant facts and procedure
On May 1, 2007, before Stewart entered his plea, the trial court advised him that his plea could result in a sentence of anywhere from 25 years to life to 32 years to life. During a discussion about credits, Stewart was reminded that he could receive a life sentence. Finally, the trial court admonished Stewart that it may not grant his Romero motion. At each point, Stewart expressed his understanding of the admonishments when queried by the trial court. Furthermore, Stewart’s counsel acknowledged his satisfaction that Stewart understood his rights and was in a proper state of mind to intelligently enter his plea. Stewart ultimately entered a plea of no contest to the one count of felony petty theft with a prior conviction and admitted all prior convictions, including the three strike priors.
In his first motion to withdraw his plea, Stewart submitted a joint declaration from the counsel who represented him at the time of his plea and the counsel who represented him on his Romero motion. In this declaration, counsel stated they advised Stewart to enter a plea of no contest and admit the allegations because “no court in [their] experience would impose a life sentence” after taking into account the age of his prior strikes, the earliest of which were committed when he was a juvenile, and the de minimis nature of the current offense.
Approximately a month later, defense counsel filed supplemental papers, which included a compilation of every Romero motion brought by the alternate public defender’s office from 2005 to 2007, in order to “show what we believe is a general pattern of strike relief, when the prior strikes are to varying extents ‘old, ’ and the new case is of a non-violent nature and relatively de [minimis]....” The trial court admitted this supplemental evidence solely with respect to the issue of defense counsels’ state of mind.
At the August 21, 2008 hearing on the motion, Stewart testified that, based on his counsel’s advice he did not believe he would receive a life sentence and would not have pleaded no contest absent that advice. Stewart also acknowledged that he understood there was a possibility--however unlikely--he would receive a life sentence, and that both his counsel and the trial court advised him of that possibility before he entered his plea. Stewart further admitted that neither the trial court nor the prosecutor made any promises to him at any time in relation to his plea.
After Stewart waived the attorney-client privilege, defense counsel testified that he advised Stewart it was his “opinion that while he was facing 25 years to life, based on my experience and his case, that the likelihood of a court imposing [such a sentence] would be very slim.” However, he also testified that he repeatedly advised Stewart there was a possibility he would receive a life sentence.
The trial court denied the motion to withdraw, finding that the totality of the circumstances did not establish good cause and that there was no misadvisement by Stewart’s counsel. The court stated: “[Counsel] could only advise Mr. Stewart based on [counsel]’s experience, and that’s all an attorney could do, unless the advice was wrong, ... or unless the opinion was not reasonable. [¶] Here [counsel] felt very confident about the likelihood of success of the Romero motion, and, frankly, [counsel] was very close in his assessment or in his opinion, as the court in its Romero ruling did state it was a very difficult decision to deny [the] motion.... [¶] [Counsel]’s opinion was very close to the mark as to the likelihood of success, and what is clear from both [counsel]’s testimony and Mr. Stewart’s testimony is that [counsel] informed Mr. Stewart that there was still a possibility of life. The fact that a court’s ruling did not turn out to be as [counsel] and Mr. Stewart had hoped is not good cause for withdrawing the plea.” The court also noted that counsel and the court advised Stewart of the possibility of a life sentence, that no promises had been made to Stewart by the court with respect to the outcome of the Romero motion.
2. Standard of review
The denial of a motion to withdraw a guilty or no-contest plea rests in the sound discretion of the trial court and may not be overturned on appeal unless the defendant shows a clear abuse of that discretion. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) It is the defendant’s burden in superior court to show clear and convincing evidence of “good cause” (§ 1018) to withdraw his plea--that is, “mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free judgment.” (People v. Ravaux (2006) 142 Cal.App.4th 914, 917.) “Where a defendant has been denied the effective assistance of counsel in entering a plea of guilty, he is entitled to reversal and an opportunity to withdraw his plea if he so desires.” (People v. McCary (1985) 166 Cal.App.3d 1, 7.)
In order to establish ineffective assistance of counsel, “a defendant must show that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel’s deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel’s failings, the result would have been more favorable to the defendant.” (In re Resendiz (2001) 25 Cal.4th 230, 239.) “[A] defendant who pled guilty demonstrates prejudice caused by counsel’s incompetent performance in advising him to enter his plea by establishing that a reasonable probability exists that, but for counsel’s incompetence, he would not have pled guilty and would have insisted, instead, on proceeding to trial.” (Id. at p. 253.) However, “[i]n determining whether or not a defendant who has pled guilty would have insisted on proceeding to trial had he received competent advice, an appellate court also may consider the probable outcome of any trial, to the extent that may be discerned.” (Id. at p. 254.)
3. The trial court acted within its discretion
The trial court’s decision shows that it carefully considered the evidence presented to it by Stewart and his counsel, specifically that Stewart was expressly advised, on multiple occasions, that there was a possibility he would receive a life sentence. The trial court also properly noted that no promises were made to Stewart, either by the trial court or the prosecutor, with respect to what sentence he may receive in exchange for a no contest plea. Stewart’s counsel also advised him of the possibility of a life sentence, though he suggested that possibility was “very slim.” In connection with the motion, counsel submitted a compilation of Romero motions brought by the alternate public defender’s office which showed a “general pattern of strike relief” where the prior strikes are “old” and the current offense is relatively minor.
Accordingly, we conclude that the trial court did not abuse its discretion in denying the motion to withdraw. Stewart’s counsel did advise him to plead no contest, based on his assessment that no court, faced with a similar set of facts, would deny Stewart’s Romero motion and impose a life sentence. Defense counsel supported the basis for that assessment by providing the court with examples of other similar cases in which Romero motions were granted. Simply because that advice proved to be, in hindsight, erroneous does not make it objectively unreasonable at the time it was given. Counsel repeatedly informed Stewart that a life sentence was possible, and Stewart admitted that he was so informed. Based on the record, we cannot say that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and consequently, there was not good cause to allow Stewart to withdraw his plea.
C. Counsel’s failure to bring a renewed Romero motion
After the first motion to withdraw his plea was denied, Stewart brought a second motion to withdraw based on mental health reports prepared by three experts. That motion was also denied, but Stewart argues that his counsel was ineffective for failing to renew his Romero motion in light of these mental health reports.
1. Relevant facts and procedure
Defense counsel sought and obtained the appointment of psychotherapists J. Arturo Silva and Paul Koller to evaluate Stewart and determine if his mental health would provide an alternative basis for withdrawing his plea. On July 24, 2009, Stewart filed a second motion to withdraw his plea based on his alleged failure to understand the consequences of that plea and his prior attorneys’ failure to investigate his mental health disabilities. In support of the motion, Stewart submitted the reports prepared by Drs. Silva and Koller, as well as a report prepared on May 10, 2006, by Dr. Jonathan Gonick-Hallows.
Dr. Gonick-Hallows’ report was prepared pursuant to a referral by the Social Security Administration for the purposes of determining if Stewart, who was receiving disability benefits, was capable of managing his funds.
a. Mental health evaluations and hearing
Dr. Gonick-Hallows’ report notes that he administered several tests to Stewart, including the “WAIS-3, Wechsler Memory Scale-3, Bender-Gestalt and Test of Memory Malingering.” At the time of the evaluation, Stewart was taking Zoloft and reported a history of outpatient and inpatient psychiatric treatments, though no medical or mental health records were available for review. According to the report, Stewart’s “performance overall on the WAIS-3 resulted in a full-scale I.Q. of 60, in the extremely low range.” Stewart’s short term memory, word choice and syntax appeared extremely poor, and he was incapable of performing simple arithmetic.
However, the report notes that Stewart’s effort during the evaluation was “below ideal” and that “[s]ome of his responses to simple questions were so off the mark that one wondered whether he might be dissembling.” On the “Test of Memory Malingering, ” Dr. Gonick-Hallows reported that his “scores are so far below chance that they are clearly representative of conscious dissembling[, ... which] calls into... question the results of cognitive testing, and also perhaps his self-report in general.”
Dr. Silva’s report notes that Stewart told him that he would hear disembodied voices of relatives, and those voices told him to take the watches and offer them to his deceased parents as a gift. The disembodied voices stopped once he began taking Haldol. Stewart scored below average on the various tests Dr. Silva administered, evidencing “serious cognitive deficits.” Though Dr. Silva noted certain risk factors for malingering, he found “[m]ost of the available information does not support Malingering.” Ultimately, Dr. Silva concluded that although Stewart was presently suffering from a psychiatric disorder, it was unlikely that his medication made a significant impact in his ability to understand the consequences of his no contest plea and his disorder was not likely to have prevented Stewart from “construct[ing] sequences of intentional cognition and behavior involving the act of stealing during the instant offense.”
Dr. Koller noted that Stewart told him he began hearing voices from God and dead relatives three years before the most recent arrest. Based on the tests administered, Dr. Koller found it was “clear that Mr. Stewart does suffer from chronic cognitive impairment and some degree of mental retardation, estimated to be in the Borderline to Mild range.” However, Dr. Koller concluded Stewart was “capable of forming the requisite intent to steal, ” though his “IQ may very likely have limited his ability to fully understand and appreciate the consequences and implications of his no contest plea.” With respect to malingering, Dr. Koller noted that it was “reasonable to assume some degree of conscious or unconscious attempt to manipulate his clinical picture, however testing and clinical impressions do suggest limited intelligence, a long history of severe polysubstance abuse, and periods of depression and probable psychotic thinking.”
At the hearing on Stewart’s second motion to withdraw, Dr. Koller testified that Stewart was “borderline mentally retarded, ” and had problems with complex thoughts. However, according to Dr. Koller, observers would overestimate his ability to comprehend complex situations and ideas, because Stewart was “friendly and cooperative.”
b. The trial court’s ruling
In making its ruling, the trial court acknowledged Stewart’s “limitations and mental health and psychiatric issues, ” pointing out that those had been noted in the probation report and had been previously considered by the court in deciding Stewart’s Romero motion. “[I]n view of the totality of the circumstances, [these limitations] do not sufficiently impair [Stewart’s] abilities to fully, knowingly, and intelligently understand the consequences of his pleas.” The court also indicated that although it found Dr. Koller’s testimony “well-meaning, ” it did not find his opinion on Stewart’s ability to understand the consequences of his plea persuasive because it was “not consistent with the totality of the circumstances and with the record, including the Court’s own observations of Mr. Stewart at the time of his plea in this case and in his testimony at the hearing on both motions to withdraw.” Accordingly, the court denied the motion to withdraw the no contest plea.
2. Counsel was not ineffective for not renewing the Romero motion
Stewart contends that the mental health evaluations presented to the trial court in connection with his second motion to withdraw provided ample grounds for renewing his Romero motion and that it is reasonably probable that a renewed motion, buttressed by those reports, would have been granted.
This argument is belied by the record. At the hearing on the second motion to withdraw, the trial court made it quite clear that it was well aware of Stewart’s low intelligence, near-illiteracy and psychiatric issues when it considered and ruled on his initial Romero motion. In fact, the trial court noted that “these factors were part of the many reasons why the Romero motion was a very difficult one for the Court to decide.” The court’s comments do not suggest that the experts’ reports would have made a difference to its initial Romero analysis. On the contrary, the trial court was politely dismissive of Dr. Koller, the one expert whose reports and testimony were most favorable to Stewart, finding his opinion was not persuasive. As a result, there was no reasonable basis for defense counsel to renew Stewart’s Romero motion and the failure to do so did not constitute ineffective assistance of counsel.
III. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J.Elia, J.