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People v. Wooley

California Court of Appeals, Fourth District, First Division
Jul 8, 2008
No. D050459 (Cal. Ct. App. Jul. 8, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. DANIEL WOOLEY, Defendant and Appellant. D050459 California Court of Appeal, Fourth District, First Division July 8, 2008

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of San Diego County No. SCD201488, Timothy R. Walsh, Judge.

HALLER, A.P.J.

Daniel Wooley entered a negotiated guilty plea to an attempted kidnapping charge (Pen. Code, §§ 664, 207, subd. (a)), and admitted the truth of a prior serious felony allegation (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)). Shortly after, Wooley moved to withdraw his plea, but the court denied the motion. Pursuant to the plea agreement, the court imposed a sentence of seven years and six months, dismissed two felony counts, and struck a prior strike allegation.

All further statutory references are to the Penal Code.

On appeal, Wooley contends the trial court erred in denying his motion to withdraw the guilty plea based on claimed ineffective assistance of counsel. We conclude the court erred in ruling that Wooley waived the ineffective assistance claim. We therefore reverse and remand for the limited purpose of permitting the court to rule on the merits of Wooley's request to withdraw his guilty plea based on his ineffective assistance claim.

In ruling on the motion, the court should determine whether Wooley met his burden to show: (1) his counsel's representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) he suffered prejudice from counsel's deficient performance, i.e., there was a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. If the court finds Wooley met his burden on both of these elements, it should grant Wooley's motion. If the court finds Wooley did not meet his burden on either element, it should deny the motion.

FACTUAL AND PROCEDURAL BACKGROUND

Information from Probation Report

In 2005, Wooley lived in an apartment complex owned by 73-year-old Edgar Esworthy. Several other men also lived in the same apartment complex, including Sam Warren and Roberto Acosta. In December 2005, Wooley was arrested on charges of committing financial elder abuse against Esworthy.

While incarcerated in the San Diego county jail, Wooley orchestrated a plan with Warren to have Acosta deported from the United States. Wooley believed Acosta had influenced Esworthy to pursue an improper criminal action against him, and that Acosta was an undocumented immigrant who was in the United States illegally. Some of Wooley's jailhouse telephone conversations concerning his plans were recorded. Wooley ultimately solicited another jail inmate (Aaron Stuart) to forcibly take Acosta from the United States to Mexico.

After Stuart was released from custody, he met with Warren, who gave Stuart a security badge and a set of handcuffs to use against Acosta. On July 28, 2006, Stuart and another man went to Esworthy's residence and confronted Acosta. They told Acosta they were police officers, and said " 'You're coming with us.' " When Acosta resisted, the men produced a set of handcuffs and then attempted to put the handcuffs on Acosta. During this struggle, Esworthy walked into the room and called 911. Stuart and the other man then ran from the house leaving Acosta bleeding from his left eye. Stuart inadvertently left a printout of emails which identified Wooley and Warren as participants in the plan against Acosta.

According to the probation report, both Stuart and Warren admitted planning to remove Acosta from Esworthy's residence and take him to Mexico, but stated they thought they were accomplishing this plan through legal means. Warren later admitted he had lied and that he thought the removal was lawful until the day of the crime. Warren said Wooley had coached him regarding how to answer police inquiries.

Charges and Plea Agreement

Based on the criminal activities against Acosta, the district attorney charged Wooley with three felony counts: (1) conspiring with Warren to kidnap Acosta; (2) attempted kidnapping; and (3) false imprisonment. The information further alleged that Wooley had a serious felony prior and a prior strike conviction.

On October 6, 2006, Wooley entered into a global plea agreement applying to the elder abuse and the Acosta kidnapping cases. On the kidnapping case, Wooley pled guilty to the attempted kidnapping charge (§ 207, subd. (a)), and admitted the serious felony prior allegation. The remaining counts were dismissed. On the elder abuse case, Wooley pled guilty to a single count of perjury, in exchange for probation and credit for time served. Wooley agreed to a term of seven years, six months in state prison, and the strike prior was stricken. As part of this package plea agreement, Warren pled guilty to conspiracy and received a sentence of 365 days in local custody.

Motion to Withdraw Plea

On the date scheduled for sentencing, Wooley's counsel, Pamela Lacher, stated there may be a legal basis for Wooley to withdraw the plea, but she needed time to conduct additional research. At a continued hearing, the court made clear that if the basis of the plea withdrawal was a claim of ineffective assistance of counsel, Wooley was entitled to the appointment of a new counsel to research and explore the issue. After a discussion and pursuant to Wooley's request, the court continued the hearing five more days, until January 2, 2007.

At the outset of the January 2 hearing, defense counsel (Lacher) notified the court that Wooley wanted her to remain as defense counsel despite the possibility that she would be required to assert her own prior incompetence as a basis for the current motion. The prosecutor agreed that Wooley was entitled to counsel of his choice, if Wooley clearly waived his right to have an independent attorney appointed by the court at no charge to him and if he understood the potential ramifications of continuing with an attorney with a possible conflict of interest. The court then explained at length to Wooley that there was a potential conflict "in the future" if Wooley wanted to have Lacher continue as his lawyer and that he had a right to an independent lawyer at no cost who would have no conflict or potential conflict. Wooley responded that he understood these admonitions, and he agreed to waive the conflict that may exist by virtue of Lacher's continued representation. Wooley specifically stated that he waived the right to assert an ineffective assistance of counsel based on Lacher's continued representation: "I waive any future claims on any [ineffective assistance of counsel] claims that I may have against Ms. Lacher." (Italics added.)

Several weeks later, Lacher filed a motion to withdraw Wooley's guilty plea based on several grounds, including Wooley's claim that he was unaware he had a viable defense to kidnapping, i.e., a valid citizen's arrest of Acosta.

Wooley also claimed the " 'package deal' " plea was not voluntary because he was pressured to accept the deal for the benefit of his codefendant Warren. The court found the facts did not support this assertion, and Wooley does not challenge this finding on appeal. We thus do not discuss the facts relating solely to this issue.

At the hearing on the motion, Wooley acknowledged that he had arranged for Stuart to take custody of Acosta, but claimed he did not believe his conduct constituted a kidnapping because he intended to effectuate a citizen's arrest of Acosta based on felonies that Acosta had committed. Wooley said Acosta had committed various crimes, and the district attorney knew about these offenses because the prosecutor was taping Acosta's telephone conversations.

Wooley claimed that before he pled guilty he told Lacher that he did not want to plead guilty to the kidnapping crimes because he believed he had a valid defense of citizen's arrest. However, Lacher told him there was no defense to kidnapping. Relying on this legal advice, Wooley agreed to accept the plea agreement. Wooley testified he would not have pled guilty if he had known he had a legal defense to kidnapping based on his intention to effectuate a valid citizen's arrest. Wooley said he knew his maximum sentence on the kidnapping case was 15 years, and he understood the plea agreement was a good deal if there was no defense to the kidnapping charge.

During cross-examination, Wooley admitted he had made various incriminating statements during his phone conversations from jail. For example, he admitted that in early June 2006, he told his friend that he would "pay somebody 300 bucks to 400 bucks to take [Acosta], drive him across the border and dump him there." He also asked his friend to call "some bail bondsmen" and "Tell them . . . we need to find two guys to grab [Acosta] and drag him across the border. It's legal. He's an illegal alien. What're they gonna do?" When his friend asked whether he wanted them to "put [Acosta] in the trunk of the car and drive him across," Wooley responded "Yep. Go as high as 500 bucks."

Wooley testified, however, that these conversations occurred before he had contacted the INS to determine the legal means to apprehend Acosta. He stated: "[Acosta] was an illegal alien. The reason why we talked about it that way in June is nobody informed us. After we called INS and—they informed us that a wrongful abduction of an illegal cannot be done. If we do citizen's arrest for felonies [that Acosta has] committed, we can transport him to INS detention facility, which is under the supervision of a magistrate. . . . And that's why we made sure we had another individual present. That's why on the tape I said I want everything done legal. Everything legal. Because I didn't want to get a kidnapping charge."

At the hearing, the prosecutor informed the court that Esworthy has since died, and therefore the prosecution would be substantially prejudiced if Wooley is permitted to withdraw his plea. Wooley stated that he was unaware of Esworthy's death.

Court's Ruling

After considering the evidence and argument, the court denied Wooley's motion to withdraw his plea. The court stated that defense counsel's failure to advise Wooley that a valid citizen's arrest is a legal defense to a kidnapping constituted an ineffective assistance of counsel claim. But the court concluded that Wooley had waived this claim when he agreed to permit his counsel to represent him at the hearing on his motion to withdraw his plea.

In so ruling, the court declined to reach the issue of whether the facts supported a citizen's arrest defense and/or whether counsel's failure to properly advise Wooley of this legal defense was material to Wooley's decision to plead guilty to the charges. The court said that "I haven't gotten into the validity of the [defense]. I don't think I need to get into the validity of the [defense]." The court later reiterated that "whether [Wooley] had [a] legal defense or not is really not at the crux of this issue because that's a factual determination. The question is whether or not he was advised that that's a potential legal defense." The court also declined to reach the issue whether counsel's advice would have been material and would have changed the outcome of the case.

DISCUSSION

I. Legal Principles

"It is well settled that where ineffective assistance of counsel results in the defendant's 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, 934.) To successfully challenge a guilty plea based on ineffective assistance of counsel, the defendant has the burden to prove by a preponderance of the evidence that: (1) his or her counsel's representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) he or she suffered prejudice from counsel's deficient performance, i.e., "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." (Hill v. Lockhart (1985) 474 U.S. 52, 57, 59; accord In re Resendiz (2001) 25 Cal.4th 230, 253; In re Alvernaz, supra, 2 Cal.4th at p. 934.)

A defendant's assertion he would not have pleaded guilty if he had received effective assistance of counsel " 'must be corroborated independently by objective evidence.' " (In re Resendiz, supra, 25 Cal.4th at p. 253.) "A defendant's statement to that effect is not sufficient. [T]here must be some objective showing." (In re Vargas (2000) 83 Cal.App.4th 1125, 1140.) "A contrary holding would lead to an unchecked flow of easily fabricated claims." (In re Alvernaz, supra, 2 Cal.4th at p. 938.)

An ineffective assistance claim presents a mixed question of fact and law. (In re Resendiz, supra, 25 Cal.4th at p. 248.) Factual determinations made by the trial court " 'are entitled to great weight . . . when supported by the record, particularly with respect to questions of or depending upon the credibility of witnesses the [superior court] heard and observed.' " (Id. at p. 249.) Once the trial court has made the credibility determinations, our review of the record is independent. (Ibid.) An appellate court must "undertake 'an independent review of the record [citation] to determine whether [the defendant] has established by a preponderance of substantial, credible evidence [citation] that his counsel's performance was deficient and, if so, that [he] suffered prejudice.' " (Ibid.)

II. Analysis

The superior court made a factual finding that defense counsel did not inform Wooley of a potential legal defense to a kidnapping charge. That factual finding is supported by the record. Defense counsel admitted that she did not inform Wooley of this defense, and the evidence shows that counsel instead affirmatively told him that a citizen's arrest was not a defense to kidnapping. Contrary to counsel's advice, section 207, subdivision (f)(2) provides that a person is not guilty of kidnapping if he or she is acting under sections 834 or 837. These code sections permit a private person to make an arrest for a felony even if the felony was not committed in the citizen's presence.

However, the trial court expressly declined to reach the issue of whether this error was prejudicial because it found that Wooley had waived the right to claim ineffective assistance of counsel. As the Attorney General concedes, this waiver finding was erroneous because Wooley's waiver applied only to his challenges to defense counsel's representation on the motion to withdraw the guilty plea. Before Wooley filed his motion to withdraw his plea, the court admonished Wooley that Lacher had a potential conflict of interest in any future representation because she may be required to assert her own prior incompetence in obtaining relief on the motion. Wooley expressly agreed to waive any claim of ineffective assistance of counsel during those future motion proceedings. But Wooley never waived his right to challenge his counsel's earlier errors in failing to identify a potential defense.

Wooley contends the court's error on the waiver issue requires that we order the court to grant his motion to withdraw his plea. We disagree. The court never reached the merits of the ineffective assistance claim. Although the court found Wooley was not informed of a possible legal defense, the court expressly declined to determine whether the claimed deficient performance was material and/or prejudicial.

As discussed above, to establish a basis for reversal for ineffective assistance of counsel, a defendant must establish both prongs of the test: (1) counsel's conduct fell below an objective standard of reasonableness under prevailing professional norms; and (2) the defendant suffered prejudice from counsel's deficient performance, i.e., there was a reasonable probability that he would not have pled guilty if he had known of this legal defense to kidnapping. (Hill v. Lockhart, supra, 474 U.S. at pp. 57, 59.) Because the court did not decide these elements in Wooley's favor and did not even reach these issues, Wooley is not entitled to an order granting his motion to withdraw his plea. Instead, we must remand for the court to consider Wooley's motion on its merits.

The Attorney General contends that this court should find as a matter of law that Wooley's ineffective assistance claim fails because there was no factual basis for a citizen's arrest and therefore Wooley could not satisfy the prejudice element of the claim. The Attorney General reads the record too narrowly. The Attorney General emphasizes the evidence supporting that a valid defense was not available (i.e., the plan to forcibly abduct Acosta, place him in a car trunk, drive across the border and leave him in Mexico), but ignores the evidence indicating Wooley contacted INS, was told how to effectuate a lawful citizen's arrest, and that Wooley insisted that his cohorts act legally.

Given Wooley's testimony at the hearing, factual issues exist as to the validity of the defense under the circumstances and whether Wooley would have pled guilty even if he had known of this defense. Although we agree with the Attorney General that there was a reasonable basis in the record for the court to have found that counsel's failure to inform Wooley of the legal defense was not prejudicial, this determination ultimately depends on factual and credibility determinations. It is for the trial court, and not this court, to engage in this analysis in the first instance. The issue of Wooley's credibility is for the trial court's determination. Thus, it is appropriate to remand this matter to the trial court.

On remand, the court should consider whether the evidence presented on the motion to withdraw the plea supported the existence of a meaningful defense to the kidnapping charges. To prevail on a kidnapping defense, it must be established, and known, that a felony has, in fact, been committed. Reasonable cause to believe that a felony has occurred is insufficient for a citizen's arrest. (See People v. Piorkowski (1974) 41 Cal.App.3d 324, 328.) Moreover, "[a] private person who has arrested another for the commission of a public offense must, without unnecessary delay, . . . deliver him or her to a peace officer." (§ 847, subd. (a).) The court should further consider whether Wooley would have declined the plea bargain and insisted on going to trial, even assuming there would have been sufficient evidence to support a jury instruction on the citizen's arrest defense. Relevant factors include the strength of the prosecution's case, the nature of the evidence supporting the asserted defense, and the comparison between the maximum sentence and the prosecution's greatly reduced plea offer. (See In re Resendiz, supra, 25 Cal.4th at p. 253.)

DISPOSITION

We reverse and remand for the limited purpose of permitting the court to rule on the merits of Wooley's request to withdraw his guilty plea based on ineffective assistance of counsel.

WE CONCUR: McINTYRE, J., AARON, J.


Summaries of

People v. Wooley

California Court of Appeals, Fourth District, First Division
Jul 8, 2008
No. D050459 (Cal. Ct. App. Jul. 8, 2008)
Case details for

People v. Wooley

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DANIEL WOOLEY, Defendant and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Jul 8, 2008

Citations

No. D050459 (Cal. Ct. App. Jul. 8, 2008)