Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Leo Valentine, Jr., Judge. Affirmed., Super. Ct. No. SCD203915
HALLER, J.
Samuel Vargas pleaded guilty to multiple offenses involving three victims whom he sexually assaulted. On appeal, he contends (1) the trial court abused its discretion in denying his motion to withdraw his guilty plea, and (2) there was an insufficient factual basis to support his plea to a kidnapping special allegation accompanying one of the counts. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The issues on appeal require only a brief summation of the facts concerning the sexual offenses. In our discussion below, we will expand on the factual and procedural background as necessary to address the issues on appeal.
In 2007, Vargas was charged with various offenses arising from allegations that he sexually assaulted S.V., C.M., and V.T. in September 2006, May 2005, and September 1996, respectively. The assault on S.V. occurred inside an apartment complex where S.V. was looking for a place to rent. After engaging S.V. in conversation and accompanying her into the complex, Vargas grabbed her, put his finger into her vagina, and asked her if she wanted to see his penis. S.V. kicked Vargas and was able to break free and run away.
In the offense against C.M., Vargas engaged her in conversation at a grocery store, where he hugged her and kissed her. C.M. voluntarily accompanied Vargas on a walk. When they reached an empty parking lot, Vargas took her behind a dumpster and pulled her underwear down. C.M. struggled to resist. Vargas threw her on the ground, kissed and fondled her, tried to insert his penis into her vagina, and inserted his fingers into her vagina. Vargas pulled out a syringe and told C.M. that if she did not have sex with him he would stab her with the syringe which was filled with the A.I.D.S. virus. C.M. escaped after she persuaded Vargas to let her get up to put her MP3 player in her grocery bag so it would not get broken.
Vargas was identified as the perpetrator of the 1996 offense against V.T. through a DNA match in 2006. In this offense, Vargas approached V.T. on the street and asked for a cigarette, and then followed her when she turned around to walk in the other direction. As V.T. was crossing a street, Vargas came up from behind her, put his hand over her mouth, and held a sharp object (believed to be a knife) to her throat. Vargas pulled her into a carport, tried to get her to masturbate him, masturbated himself, told her he would kill her if she screamed, and put his penis into her vagina. After about three to five minutes, Vargas left and V.T. ran home.
The information filed against Vargas set forth 10 felony counts, and included special allegations for multiple sex offense victims, commission of a sex offense with kidnapping, and personal use of a deadly weapon. The information alleged several enhancements based on two prior felony convictions, including an allegation of a strike prior conviction.
Trial commenced in April 2008. On April 28 and 29, several witnesses testified, including S.V. and V.T. On the afternoon of April 29, during the prosecution's case-in-chief, the trial court declared a mistrial after a witness violated a pretrial ruling by referring to Vargas's parolee status. The proceedings resumed on April 30 and May 1 with voir dire of new prospective jurors, resolution of several pretrial evidentiary matters, and introductory instructions to the newly sworn jury.
Just prior to opening statements on May 1, the parties reached a plea agreement. Vargas pleaded guilty to (1) count 1 (sexual penetration by a foreign object against S.V.) with an admission that he committed a sex offense against more than one victim; (2) count 9 (assault with a deadly weapon or by means of force likely to produce great bodily injury against C.M.); and (3) count 10 (rape of V.T.) with an admission that he kidnapped V.T. with movement that substantially increased the risk of harm. He also admitted allegations of one prison prior and one serious felony prior. Under the terms of the plea agreement, Vargas agreed that he would be sentenced to an indeterminate term of 40 years to life, plus a determinate term of 10 years. The prosecution agreed the balance of the information would be dismissed.
The trial court accepted the plea and set the matter for sentencing. On June 25, at the time set for sentencing, Vargas moved to withdraw his guilty plea on the grounds of duress, claiming he accepted the deal under pressure from his mother. At a hearing on July 31, the court rejected his claim that his plea was not voluntary, and denied his plea withdrawal motion. The court imposed sentence as specified in the plea agreement.
The court sentenced Vargas to an indeterminate term of 40 years to life, consisting of 15 years to life for committing a sex offense against more than one victim (special allegation for count 1 against S.V., Pen. Code, § 667.61, subds. (b), (e)(5)) and 25 years to life for committing a sex offense with kidnapping involving movement that substantially increased the risk of harm (special allegation for count 10 against V.T., § 667.61, subds. (a), (d)(2)). Additionally, the court imposed a 10-year determinate term consisting of four years for assault with a deadly weapon or by means of force likely to produce great bodily injury (count 9 against C.M., § 245, subd. (a)(1)), one year for the prior prison term (§ 667.5, subd. (b)), and five years for the prior serious felony conviction (§ 667, subd. (a)(1)).
Subsequent statutory references are to the Penal Code.
DISCUSSION
I. Denial of Plea Withdrawal Motion
Vargas contends the trial court abused its discretion in denying his motion to withdraw his guilty plea.
A. Background
The Change of Plea
Under the terms of the plea agreement, Vargas pleaded guilty to sexual penetration by a foreign object with an admission of the multiple victim special allegation (count 1, victim S.V.); assault with a deadly weapon or by means of force likely to produce great bodily injury (count 9, victim C.M.); and rape with an admission of the kidnapping special allegation (count 10, victim V.T.). As a condition of Vargas's acceptance of a plea, the parties agreed the plea would not include certain charged offenses that Vargas believed could jeopardize his personal welfare in prison. The change of plea form, initialed and signed by Vargas, states he was pleading guilty to the specified offenses, and admitting the specified allegations, enhancements, and prior convictions. The form states he had not been induced to enter the plea by any promise or representation except that (1) the stipulated sentence was 40 years to life, plus 10 years, and (2) the balance of the information would be dismissed.
At the commencement of the change of plea hearing, the trial court stated to Vargas: "Overall it appears the parties are agreeing this would be 40 years to life, plus 10 years, would be the stipulated sentence between the parties. [¶] Is that your understanding of what has taken place, Mr. Vargas?" (Italics added.) Vargas responded, "Yes, Your Honor."
The trial court then placed Vargas under oath and examined him to ensure the plea was voluntary. Responding to the court's queries, Vargas acknowledged that no promises or threats had been made to induce the plea apart from the matters specified by the court; he had enough time to review the charges and possible defenses with his attorney; he had placed his initials, signature, and thumb print on the change of plea form; he had enough time to review the change of plea form with his attorney; and he did not have any questions about the form. He acknowledged that he understood he was giving up his various rights, including the rights to a jury trial, to be represented by counsel, to cross-examine witnesses, and to call defense witnesses. He acknowledged that no one could force him to plead guilty or admit the allegations against him.
The trial court specified the various consequences of the guilty plea concerning such matters as immigration status, driving privileges, sex offender registration, firearm ownership, DNA testing, prior conviction and prior prison term enhancements, the sexually violent predator law, the three strikes law, and calculation of good time credits. Regarding the agreed-upon sentence, the court stated: "In this particular case the penalty, the maximum penalty is up to 40 years to life, plus an additional 10 years." (Italics added.) The court also delineated the consequences concerning parole and possible fines, penalties and assessments. Vargas acknowledged that he understood these matters, that he had no questions, and that it was still his intent to enter the guilty plea.
The trial court delineated the charges for counts 1, 9 and 10 and the special allegations and sentencing enhancements specified in the plea agreement. Vargas responded that he was pleading guilty to these charges and admitting these allegations and enhancements. The parties stipulated the trial court could rely on the transcripts of the preliminary hearing and the testimony from the first trial to establish the factual basis for the plea. The court found that Vargas had been advised of, understood, and waived his constitutional rights and had entered the guilty plea freely and voluntarily.
Before entering the plea, the trial court again inquired whether this is what Vargas wanted to do, and Vargas responded affirmatively. The court underscored the finality of the plea, stating: "You understand once I accept it, it's not going to be withdrawn? Do you understand that, sir?" Vargas responded, "Yes, Your Honor." The court then ordered entry of the plea and set the matter for sentencing.
Motion to Withdraw the Plea
At the time of the hearing set for sentencing, Vargas made an oral motion to withdraw his guilty plea based on duress. Vargas personally addressed the court, stating that at the time he took the deal, his mother had visited him, he was stressed out, and a large factor in his acceptance of the deal was his concern for the effect of the case on his mother. Additionally, an even "bigger reason" he accepted the deal was because he feared for his life in prison based on the charges against him. His mother also feared for his life, but the plea "surprised her too" because she did not think it "would involve taking [his] life." After the plea, his mother visited him again and stated, " 'You know what, you took a deal for life.' " He explained to his mother "how [he] felt," and she responded that "she knows but [he] should have went forward with it [the trial]." Vargas told the judge that he was "thinking the same thing" as his mother and accordingly wanted to withdraw his plea.
The trial court granted a continuance to permit written filings. Vargas filed a declaration stating as follows.
"I entered the plea of guilty as a result of duress. I had been under pressure from my family, specifically my mother to enter a plea of guilty[.]... [¶]... I was intent on proving my innocence and wanted to tell the jury my side of what occurred. However, my mother placed a tremendous amount of pressure on me to take a deal that would allow me to have a hope of being released so that I could spend time with my daughter[.] [¶]... As a result of the pressure from my mother I lost focus of what was right for me and instead did what she wanted me to do[.] [¶]... My plea was not voluntary as it was entered due to the pressure from my mother. My mother has always been a central figure in my life. Because of this her advice and direction to do things places a very heavy load on me. This in turn causes me to do things that are not in my best interest; and which are also not voluntary. [¶]... I believe the amount of pressure and duress that my mother placed on me to take a plea took away my free will and resulted in my plea being made under duress and not voluntarily entered[.] [¶]... I believe I should be allowed to withdraw my plea as it is important that the jury get my side of the story. Absent the pressure from my mother I would have had the opportunity to tell my side." (Italics added.)
At the July 31 hearing on the motion, defense counsel elaborated: "Vargas was receiving quite a bit of pressure from family, specifically his mother with regard to accepting the plea. [¶] He felt that as a result of continuing pressure from her that he was under duress not to knowingly proceed with the case, but rather to basically stop, accept the plea which at that point was a 50 to life, and to essentially take it more to appease his mother than to have—well, he wanted to appease his mother I suppose more than going forward with the case and fighting it. [¶] As a result, he entered a plea. Subsequently what he had done, he contacted our office and indicated that he felt he made a mistake. He felt that there was just too much pressure being put on him."
When rendering its ruling, the trial court summarized its recall of the circumstances leading to the plea agreement. The court stated that at the inception of the case, the parties had thought the case might be resolved without a trial. However, Vargas had been concerned about the nature of the charges that he might be pleading guilty to and the parties had not been able to agree to a sentence term. Later, when the court was advised that Vargas had changed his mind and was prepared to enter a plea, "there was some discussion about the fact he had spoken with his mother." However, the court recalled there were other matters that had been discussed. There had been discussion about the fact that the attorneys had a chance to talk with the jurors excused after the mistrial about their thinking on the case; this information had been relayed to Vargas; and it "appeared it was in his best interest to perhaps resolve the case as opposed to return to trial...." Further, Vargas had been concerned about his personal welfare in prison with certain convictions on his record, and the People had agreed to allow him to plead guilty to certain charges so he would not go into prison with the other type of convictions on his record.
The trial court further recalled that because of concerns for witness availability and the significant sentence faced by Vargas, the court had wanted to make sure Vargas was certain about his plea. Accordingly, at the change of plea hearing the court had specifically asked him if this was what he wanted to do and emphasized there would be no opportunity to withdraw a guilty plea should he enter it. The court quoted the portions of the change-of-plea transcript reflecting this inquiry and Vargas's response that he wanted to enter the plea and understood he could not withdraw it.
At the plea withdrawal hearing, the court stated it understood Vargas could withdraw his plea if there was a legal basis to do so. The court explained that its statement to Vargas at the change of plea hearing that there would be no plea withdrawal had been designed to prevent "gamesmanship."
The court noted the defense claim that Vargas's mother had placed him under duress so that "he was not thinking clearly." But, the court assessed that other factors had also been operative, including his awareness of the witness testimony and juror feedback and his desire to avoid certain convictions. The court concluded Vargas had pleaded guilty because of his mother's encouragement and consideration of "what the implications were of being found guilty of all of these charges," but that he had not been placed under duress. Accordingly, the court denied his motion to withdraw his plea.
B. Analysis
The defendant has the burden to show good cause for withdrawal of a guilty plea by clear and convincing evidence. (§ 1018; People v. Huricks (1995) 32 Cal.App.4th 1201, 1207.) Good cause exists if the defendant was operating under mistake, ignorance, inadvertence, fraud, duress, or any other factor overcoming the exercise of free judgment. (Id. at p. 1208.)
For example, if the record reflects the defendant was inadequately advised of the direct consequences of the plea, the defendant may be entitled to withdraw the plea. (People v. Zaidi (2007) 147 Cal.App.4th 1470, 1481, 1487.) In contrast, when a defendant is fully advised of the consequences of the plea, the defendant's hope for more lenient treatment or subsequent change of mind does not provide grounds for withdrawal. (People v. Burkett (1953) 118 Cal.App.2d 204, 210; People v. Nance (1991) 1 Cal.App.4th 1453, 1456; People v. Hunt (1985) 174 Cal.App.3d 95, 103-104.) Similarly, although plea withdrawal should be allowed when the circumstances show the defendant was " 'railroaded' " into making the plea, a trial court is not required to grant withdrawal merely because the defendant claims the plea arose from the urgings of defense counsel or family members. (People v. Huricks, supra, 32 Cal.App.4th at pp. 1208, 1210 [claim that family pressured defendant into plea did not show duress]; People v. Urfer (1979) 94 Cal.App.3d 887, 892 [claim that defendant reluctantly accepted counsel's advice did not show overreaching of defendant's free and clear judgment].)
A trial court's ruling on a motion to withdraw a guilty plea will not be disturbed on appeal unless the defendant shows a clear abuse of discretion. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) We defer to the trial court's factual findings if they are supported by substantial evidence. (Ibid.)
Here, the record shows Vargas was fully advised of his rights and the consequences of pleading guilty and he indicated that he understood these rights and consequences. He expressly agreed to the stipulated sentence, as reflected in his signing of the change of plea form and his affirmative responses when questioned by the trial court at the change of plea hearing. Although Vargas later claimed he was under duress from his mother to accept a plea, the record reflects that at the change of plea hearing he explicitly acknowledged that he wanted to enter the plea and that he understood he could not withdraw it. Given that Vargas was given a full opportunity to alert the court if he was feeling any pressure at the time of the change of plea, the trial court reasonably discredited his claim that he did not freely and voluntarily make the plea because of pressure from his mother.
The trial court's conclusion is further supported by the other considerations cited by the court as operative when Vargas decided to plead guilty, including his concerns that his life could be endangered if he went to prison with certain types of convictions on his record, his awareness of the testimony to be provided by the two victims who testified at the first trial, and his knowledge that defense counsel had obtained the reactions from the excused jurors about this testimony which were apparently adverse to Vargas. The trial court reasonably concluded Vargas had not made a clear and convincing showing that he did not freely exercise his judgment when he pleaded guilty.
Vargas argues that he should be permitted to withdraw his plea because it is apparent that he and his mother "made incorrect assumptions about the terms of the plea bargain." He contends that he "accepted the plea on the mistaken belief that he would obtain something less than the maximum sentence." He posits that "although the court warned [him] he was entering a plea to crimes that carried a maximum sentence of 50 years, given [his] cooperation in entering a plea it was reasonable for him to assume he would receive something less than the maximum sentence," including the possibility of a sentence based on time served.
We are not persuaded. The record reflects the plea agreement was based on a stipulated sentence of 40 years to life plus 10 years. Although at one point during the change of plea hearing the trial court characterized the sentence as being "the maximum penalty" under the terms of the agreement, Vargas has not shown that he construed this to mean he might receive less than the stipulated sentence. The change of plea form specifies the sentence was stipulated; Vargas responded affirmatively when the court asked if he understood the agreement was for a 50-years-to-life stipulated sentence; and the court and counsel again referred to the agreed-upon, 50-years-to-life sentence during further discussion at the change of plea hearing. Moreover, when Vargas moved to withdraw his plea, the trial court had not yet sentenced him. Thus, contrary to the suggestion in Vargas's brief on appeal, his withdrawal motion was not based on a claim of surprise at the time of sentencing, since sentencing had not yet occurred.
For convenience, we shall refer to the indeterminate 40-years-to-life sentence plus the determinate 10-year sentence as a sentence of 50 years to life.
To the extent Vargas's withdrawal motion was based on a claim that his mother was surprised that he agreed to a 50-years-to-life sentence (because she had wanted him to take a deal with a hope of release so he could spend time with his daughter), any misunderstanding on the part of his mother does not show Vargas's free will was overcome. As stated, the record shows Vargas was aware that he was agreeing to a 50-years-to-life sentence, and he expressly stated he wanted to make the plea.
Vargas was 33 years old when he agreed to the plea.
Vargas contends his case is comparable to People v. Campos (1935) 3 Cal.2d 15 and People v. McGarvy (1943) 61 Cal.App.2d 557, where the reviewing courts concluded the defendants must be allowed to withdraw their guilty pleas. In Campos, plea withdrawal was required because the prosecutor promised life imprisonment and the defendant received the death penalty. (Campos, supra, at pp. 17-19.) In McGarvy, plea withdrawal was required because the defendant accepted an attorney's advice under a variety of circumstances showing the plea was not voluntary, including that the proceedings were rushed, the attorney had not been appointed to represent the defendant, and another attorney secured by the defendant's family was not given an opportunity to represent the defendant. (McGarvy, supra, at pp. 559-561, 565.) None of the circumstances present in Campos and McGarvy exist here.
The trial court did not abuse its discretion in denying Vargas's motion to withdraw the plea.
II. Factual Basis for Count 10 Kidnapping Special Allegation
Vargas asserts the trial court should not have accepted his plea for the count 10 kidnapping special allegation involving V.T. because there was an insufficient factual basis for this allegation. (See People v. Holmes (2004) 32 Cal.4th 432, 441 [prima facie factual basis for crime required for acceptance of guilty plea].) Citing the testimony presented at the preliminary hearing to support this count, he asserts there was an insufficient showing to satisfy the requirements that the movement of the victim was more than merely incidental to the sex offense and that the movement substantially increased the risk of harm to the victim above the risk inherent in the sex offense. (§ 667.61, subd. (d)(2); People v. Diaz (2000) 78 Cal.App.4th 243, 245-249.)
At the preliminary hearing, the evidence concerning count 10 was provided by a detective instead of V.T. (who lived out of state). The detective testified Vargas pulled V.T. "off the sidewalk, over near a carport, which was more dark and secluded." Vargas contends this testimony provides an insufficient factual basis for the aggravated kidnapping allegation because it does not specify how far V.T. was moved nor does it describe the precise nature of the carport.
As pointed out by the Attorney General, Vargas fails to recognize that, per stipulation of the parties, the factual basis for the plea included both the preliminary hearing and the trial testimony at the first trial. At trial, V.T. testified Vargas pulled her about 12 or 13 feet into the carport. She stated there was a parked truck in the carport; the carport was "closed in"; it was "really dark in there"; and it was secluded from public view unless someone was "right there in the driveway."
We note the clerk's minute order refers only to the preliminary hearing testimony as the factual basis for the plea. However, the reporter's transcript states both the preliminary hearing testimony and the prior trial testimony were to be used to provide the factual basis. Likewise, the change of plea form refers to the preliminary hearing and trial testimony as the factual basis for the plea. The general rule that the reporter's transcript controls over the clerk's minutes applies here. (See In re Merrick V. (2004) 122 Cal.App.4th 235, 249.)
Whether movement is incidental to an underlying offense depends on the scope and nature of the movement and the context in which the movement occurred. (People v. Dominguez (2006) 39 Cal.4th 1141, 1151 [discussing offense of kidnapping for purpose of rape].) The requirements that the movement not be merely incidental to the underlying offense and that it substantially increase the risk to the victim " 'are not mutually exclusive, but are interrelated.' " (Id. at p. 1152.) Relevant factors include "whether the movement decreases the likelihood of detection, increases the danger inherent in a victim's foreseeable attempts to escape, or enhances the attacker's opportunity to commit additional crimes." (Ibid.) Although the movement must be substantial rather than "brief and trivial," there is no minimum distance that the victim must be moved. (Id. at pp. 1152-1153.) Movement that involves a relatively short distance can be nonincidental if the movement substantially changes the environment; for example, moving a rape victim from public view is substantial. (People v. Diaz, supra, 78 Cal.App.4th at pp. 247-249 [movement from lighted sidewalk area to dark isolated location supported § 667.61, subd. (d)(2) kidnapping allegation]; People v. Shadden (2001) 93 Cal.App.4th 164, 168-170 [movement from front of store to closed back room supported offense of kidnapping for purpose of rape]; People v. Dominguez, supra, 39 Cal.4th at pp. 1152-1155; People v. Aguilar (2004) 120 Cal.App.4th 1044, 1048-1049.)
Here, the movement changed the location of the initial encounter from an open street area to a secluded carport. The movement substantially increased Vargas's opportunity to hurt or kill V.T. by significantly decreasing the likelihood of detection by people passing by. There was a sufficient factual basis to show the movement was more than incidental to the rape and that it substantially increased the risk of harm to V.T.
Given our holding based on V.T.'s testimony, we need not discuss the sufficiency of the detective's testimony to provide a factual basis for the kidnapping allegation.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., NARES, J.