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People v. Zimmerman

Court of Appeals of California, Third Appellate District.
Nov 25, 2003
C042369 (Cal. Ct. App. Nov. 25, 2003)

Opinion

C042369.

11-25-2003

THE PEOPLE, Plaintiff and Respondent, v. VAUGHN EMIL ZIMMERMAN, Defendant and Appellant.


Defendant Vaughn Emil Zimmerman appeals the denial of his motion to withdraw his plea. He contends he showed good cause and thus the trial courts denial of his motion was an abuse of discretion. We disagree.

Facts and Proceedings

Defendant and his wife began to have marital difficulties in 1999. On April 27, 2002, defendant attempted suicide by taking two packages of sleeping pills and drinking a full bottle of wine. The following day, defendant and his wife fought over defendants ongoing correspondence with a coworker. During the fight, defendant "grabbed [his wife], placed his hands around her neck, forced her to the ground, sat on top of her and began squeezing." His wife "turned purple and was gagging and gurgling." Defendant was shouting "Im going to kill you. Im going to kill you." At some point, defendant decided he did not want to kill his wife, and he let her go. He called 911 and told them he had tried to kill his wife; she had lost consciousness and was taken to the hospital.

Defense attorney Patrick Meeks visited defendant in jail, and defendant told Meeks he was depressed, had attempted suicide, and continued to have feelings of wanting to die. He also told Meeks he had never been in trouble, was terrified of being in jail and wanted bail arranged as soon as possible.

On April 30, 2002, defendant was charged by complaint with inflicting corporal injury on his spouse. (Pen. Code, § 273.5, subd. (a); further undesignated statutory references are to the Penal Code.) Defendant was arraigned on April 30, 2002, and accorded a "no bail" status. The matter was continued to May 9, to allow Meeks to file a bail motion. On May 9, 2002, Meeks sought reasonable bail, and bail was set at $10,000. Immediately thereafter, Meeks indicated that he had discussed a plea bargain with defendant and defendant wanted to resolve the case.

Defendant agreed to plead no contest to inflicting corporal injury (§ 273.5, subd. (a)), on the condition that he would not be sent to state prison initially and that he would be incarcerated for no more than one year in the county jail. In addition, the parties agreed that defendant would be recommended for work furlough. Defendant entered his plea of no contest and the court found the plea was made knowingly, intelligently and voluntarily. In accordance with the plea, defendant was granted probation and, as a condition of probation, was ordered to serve 365 days in county jail. Imposition of sentence was suspended.

On July 9, 2002, defendant retained new counsel for the purpose of filing a motion to withdraw his plea. On or about July 30, 2002, defendant filed a motion to withdraw his plea, alleging he had received ineffective assistance of counsel. Specifically, the motion alleged that Meeks was not the attorney who defendants father believed he was hiring, Meeks inadequately investigated the charges, Meeks did not consider defendants mental state as a possible defense, Meeks did not seek to have defendant psychologically evaluated, Meeks did not consider seeking to have defendants admissions suppressed, Meeks did not seek reduction of the charge to a misdemeanor, and Meeks presented no mitigating evidence at the time of sentencing.

The court found that defendant had not established good cause to withdraw his plea, because the plea was voluntary and he had not suffered ineffective assistance of counsel. Accordingly the court denied the motion. The court specifically noted that (1) because defendant admitted an intent to kill, he could have been convicted of attempted murder, (2) a psychological defense would have been of no use to the charge of spousal abuse, and (3) there was no suggestion in the record that defendant was legally insane. The court also dismissed the claim that Meekss representation came about through fraud.

DISCUSSION

Defendant contends Meekss ineffective representation was good cause to withdraw his plea and the trial court abused its discretion in denying the motion. Apparently withdrawing some of the claims he made in the trial court, here defendant contends Meeks was ineffective because he did not adequately investigate the law or facts of the case, did not make a motion to have the charge reduced from a felony to a misdemeanor, did not have defendant psychologically evaluated and did not advise him of the potential consequences to his employment. We disagree with the underlying premise that Meekss representation was ineffective. Accordingly, we find that the trial court did not abuse its discretion in denying the motion to withdraw.

Within six months of an order granting probation, a defendant may be allowed to withdraw his plea on a showing of good cause. (§ 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.) Good cause must be shown by clear and convincing evidence. (People v. Knight (1987) 194 Cal.App.3d 337, 344.) We review a trial courts refusal to permit a change of plea for an abuse of discretion. (People v. Cartwright (1979) 98 Cal.App.3d 369, 386.)

To establish ineffective assistance of counsel, defendant must demonstrate that counsels performance was deficient and that defendant suffered prejudice as a result. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) The record does not support his claim.

Defendant claims that Meeks conducted an inadequate investigation. But the "record on appeal does not disclose a basis for contending counsel failed to investigate either facts or law in the manner required of a reasonably competent diligent attorney." ( People v. Knight, supra, 194 Cal.App.3d 337, 345.) Meeks interviewed defendant about the details of his assault on his wife, spoke with defendants wife, and reviewed the police reports of the incident. Defendant and his wife were the principal witnesses to this crime. There is no indication of any other witnesses who had information to add to counsels assessment of the case. Furthermore, there is no requirement that counsel investigate all potential witnesses, and the choice of which and how many witnesses to interview is "precisely the type of choice which should not be subject to review by an appellate court." (People v. Knight, supra, 194 Cal.App.3d at p. 345.)

Nor does the record support the claim that counsel inadequately investigated the law. Defendant has the burden of establishing that "counsels acts or omissions resulted in a withdrawal of a potentially meritorious defense." (People v. Pope (1979) 23 Cal.3d 412, 425.) The record is completely devoid of any such showing. Defendant does not suggest what a possible defense might have been; and given his admission to the police and the injuries sustained by his wife, we can discern none. Accordingly, on the record before us, "[t]here is no ignorance of facts or law shown, and no failure to recognize a defense that was crucial or even meritorious." (People v. Knight, supra, 194 Cal.App.3d at p. 345.)

Defendant also complains that Meeks did not consider asking the court to reduce the charges to a misdemeanor under section 17, subdivision (b). Defendant specifically pleaded to a felony charge of inflicting corporal injury on a spouse. The record indicates that the parties specifically negotiated the felony status of the offense as part of the plea. Defendant indicated he understood he was pleading to a felony and the specific penal consequences that attach to a felony plea. A defendant cannot accept the benefits of a plea bargain and then attempt to get a better deal at sentencing. (People v. Armendariz (1993) 16 Cal.App.4th 906, 911.) "`As the People are held strictly to the terms of the plea bargain, the accused also must be held to his agreement." (People v. Ames (1989) 213 Cal.App.3d 1214, 1218.) Seeking to reduce the offense to a misdemeanor after pleading to a felony would have violated the terms of the plea bargain and deprived the People of the benefit of their bargain. Counsels decision not to violate the terms of the plea bargain was not ineffective assistance of counsel.

Defendant next contends Meeks was ineffective in failing to have him psychologically evaluated to determine his competency to enter a plea. There was no showing that defendant was sufficiently mentally impaired to justify withdrawal of his plea. The declarations regarding his mental state were vague and nonspecific. No evidence was presented that defendant had a diagnosed mental condition that would have precluded him from entering an intelligent, knowing and voluntary plea. The fact that defendant was "depressed and terrified" is insufficient to constitute good cause to withdraw his plea. (See People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)

Finally, defendant contends trial counsel was ineffective in failing to advise him of the consequences to his federal employment "should he be convicted of a felony." Defendant cites no authority to support the claim that an attorney is obliged to advise a defendant of such consequences. In fact, the law is to the contrary, an attorney is not required to advise a defendant about collateral or nonpenal consequences of a plea. (People v. Kunkel (1985) 176 Cal.App.3d 46, 53.) Meekss failure to advise defendant of the collateral, nonpenal consequences to defendants employment did not render his assistance ineffective.

We find that the trial court did not abuse its discretion in denying defendants motion to withdraw. Meeks did not render ineffective assistance of counsel, and defendant has offered no other basis for establishing good cause to withdraw his plea.

Disposition

The judgment is affirmed.

We concur: DAVIS, Acting P.J., ROBIE, J.


Summaries of

People v. Zimmerman

Court of Appeals of California, Third Appellate District.
Nov 25, 2003
C042369 (Cal. Ct. App. Nov. 25, 2003)
Case details for

People v. Zimmerman

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. VAUGHN EMIL ZIMMERMAN, Defendant…

Court:Court of Appeals of California, Third Appellate District.

Date published: Nov 25, 2003

Citations

C042369 (Cal. Ct. App. Nov. 25, 2003)