Opinion
F073511
05-04-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH CUELLAR, Defendant and Appellant.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Keith P. Sager, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRM014010C)
OPINION
APPEAL from a judgment of the Superior Court of Merced County. John D. Kirihara, Judge. Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Keith P. Sager, for Plaintiff and Respondent.
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INTRODUCTION
In May 2013, appellant Joseph Cuellar entered a negotiated change of plea to resolve this criminal matter. He pleaded no contest to three charges: (1) felony improper handling of hazardous waste (Health & Saf. Code, § 25189.6, subd. (a); count 3); (2) felony diversion of construction funds (Pen. Code, § 484b; count 42); and (3) felony willful failure to file payroll taxes (Unemp. Ins. Code, § 2117.5; count 49). He received an aggregate prison term of three years eight months, which was to run concurrently to a related federal prison sentence.
After entering his negotiated plea agreement in this matter, appellant hired new counsel, who filed a motion to withdraw the plea. The trial court denied that motion. Appellant's only claim on appeal is that the trial court abused its discretion in denying his motion. He contends his pleas were not knowing, intelligent and voluntary. We discern no abuse of discretion and affirm.
BACKGROUND
To assist our analysis of appellant's claim on appeal, we provide a relevant procedural summary of this criminal matter. In addition, as appropriate, we summarize the proceedings in the related federal matter.
I. The Relevant Procedural History Of This Matter.
A. The grand jury indictment.
On November 19, 2010, the grand jury of Merced County returned a 67-count indictment against appellant and two other individuals, Rudy Buendia III, and Patrick Bowman. The indictment generally alleged that appellant was a principal officer in a non-profit organization, Firm Build, which had accepted public funds and failed to pay numerous contractors and subcontractors for work performed. It was alleged that appellant had exposed minors to hazardous waste (asbestos), and appellant had improperly removed and handled asbestos. He was accused of embezzlement, conspiracy, and failure to pay unemployment taxes to the State of California.
This indictment was later corrected by stipulation of counsel with respect to three minor typographical and naming errors. The corrected indictment was filed on May 17, 2013, the day appellant entered his change of plea in this matter.
B. The changes of plea in both the federal and state cases.
On March 4, 2013, appellant entered a guilty plea in a companion federal matter stemming from the handling of asbestos at a vocational training site. He received a sentence of 27 months in federal prison.
On May 17, 2013, appellant entered a change of plea in this matter. He read and signed an advisement of rights, waiver and plea form for felonies (the Plea Form). The Plea Form contained numerous boxes, each containing specific advisements. Appellant initialed many of those boxes, including those confirming his understanding that he was giving up his constitutional rights to a jury trial, the right to confront and cross-examine all witnesses against him, and the right to present evidence in his own defense. He agreed he had enough time to discuss his case with his attorney and they had discussed his constitutional and statutory rights. He agreed to waive and give up his constitutional and statutory rights regarding the charges to which he was entering a plea of no contest. He understood that he "may be ordered" to pay restitution.
In paragraph 18, appellant agreed he was "not under the influence of any drugs, alcohol or medication." In paragraph 19, he acknowledged that a factual basis existed for his plea and the court could consider "any report or transcript in the file in finding there is a factual basis for my plea." In paragraph 23, he agreed he was "freely and voluntarily entering a plea, no one has threatened me or anyone close to me to make this plea. No one has promised me a lighter sentence, reward, immunity or anything not discussed on this form."
Paragraph number 21 in the Plea Form had handwritten notes showing that appellant's sentence in this matter would "run concurrent to the federal sentence" and "restitution will not duplicate any restitution ordered in the federal case." In paragraph 24 of the Plea Form, he pleaded no contest to the charges in counts 3, 42 and 49.
Appellant's defense counsel, Douglas Foster, signed the Plea Form, indicating he had reviewed it with appellant, had explained each of his rights, and answered all of appellant's questions with regard to this plea. He stipulated "that there is a factual basis for this plea."
The trial court went on the record to discuss appellant's change of plea. The court reviewed the three counts to which appellant would enter pleas of no contest: (1) count 3 of the corrected indictment, a felony violation of Health and Safety Code section 25189.6, subdivision (a), (improper handling of hazardous waste); (2) count 42 of the corrected indictment, a felony violation of Penal Code section 484b (diversion of construction funds); and (3) count 49 of the corrected indictment, a felony violation of Unemployment Insurance Code section 2117.5 (willful failure to file payroll taxes). All other counts would be dismissed. Appellant would receive a sentence of three years eight months, which would be served concurrently with any sentence imposed in the federal case.
Appellant agreed with the trial court that this mirrored his understanding. He agreed he had sufficient time to go over this matter with Foster, and he agreed he was able "to read, understand, initial and sign" the Plea Form. Appellant understood he was giving up certain rights, including his right to a jury trial, his right to confront witnesses against him, and his right to present a defense. Appellant agreed that his initials and signature on the Plea Form indicated that he had read it, understood it, and that he agreed to give up or waive his rights. The court asked if appellant had any questions about the rights he was giving up. Appellant said, "No, your Honor." He entered pleas of no contest to the charges in counts 3, 42 and 49 of the corrected indictment. The court accepted his pleas "as freely and voluntarily entered into and the rights have been knowingly and intelligently waived." The People moved to dismiss the additional counts against appellant, which motion was granted.
C. The substitution of counsel.
On March 11, 2014, the trial court approved and ordered the substitution of appellant's defense counsel. Foster was substituted out and Anthony Capozzi began to represent appellant.
II. Appellant's Motion To Withdraw His Plea In This Matter.
On June 19, 2014, the date originally set for sentencing, Capozzi made an oral motion to withdraw appellant's plea. The prosecutor objected to the request. After hearing argument, the trial court found good cause to continue the matter and permit appellant to file a written motion to withdraw the plea. A briefing schedule was discussed and ordered.
After various continuances, appellant filed his written motion on April 7, 2015. Appellant submitted a declaration in support of his motion. In addition, Foster submitted a declaration, indicating that appellant had often repeated the same questions over the four years that Foster had represented him. Foster had eventually come to believe that appellant might be suffering from the early stages of Alzheimer's disease.
Along with the motion to withdraw his plea, appellant submitted copies of reports from two psychologists and two psychiatrists. At the hearing, the parties stipulated the trial court could consider the four reports, which were attached as exhibits to appellant's motion to withdraw his plea.
A. The reports from the four medical professionals.
We summarize the relevant information from the written reports of the four medical professionals who examined appellant. These reports provided conflicting opinions about appellant's mental and emotional states.
1. Harold Seymour, Ph.D.
Harold Seymour, a psychologist, evaluated appellant in May 2014 at Capozzi's request. Appellant was 74 years old at that time. Following testing and evaluation, Seymour diagnosed (1) "Mild to moderate neurocognitive disorder, possible Alzheimer's Disease;" and (2) "Adjustment Disorder, with anxious mood." Appellant had hypertension, which results in higher rates of dementia symptoms.
Seymour opined that appellant "will struggle with understanding and processing novel situations, such as a criminal trial. Information presented to him verbally will often not be recalled." Appellant's "recall cannot be fully trusted." He is "very anxious" when in court, which exacerbates his cognitive difficulties.
In his report, Seymour did not specifically address appellant's change of pleas in either the federal or state matters. He did not opine on whether appellant may have understood his change of plea.
2. Don Stembridge, Ph.D.
Don Stembridge, a clinical psychologist, evaluated appellant in August 2014 at the request of the U.S. Attorney's Office. He reviewed Seymour's report and questioned some of Seymour's diagnoses. He felt that Seymour's testing was insufficient to determine whether appellant's memory problems were caused by anxiety or depression versus an actual organically based memory issue, such as Alzheimer's disease.
Stembridge administered several tests and diagnosed appellant with adjustment disorder with anxiety. He noted that appellant was "quite capable of responding accurately to all questions without undue distress. [Appellant] was able to provide relevant information regarding events, names, dates, and circumstances involved in his case, as he would be expected to do with defense counsel."
Stembridge agreed with Seymour that appellant "has mild to moderate impairment in short-term memory" but appellant "was able to remember relevant facts about his remote and recent history." According to Stembridge, appellant did not meet the criteria to be diagnosed with a dementia syndrome, such as Alzheimer's disease. His short-term memory issues could have been caused by anxiety.
In his report, Stembridge did not specifically address appellant's change of pleas in either the federal or state matters. He did not opine on whether appellant may have understood his change of plea.
3. Howard Terrell, M.D.
Howard Terrell, a psychiatrist, evaluated appellant in September 2014 at Capozzi's request. Terrell reviewed the reports from Seymour and Stembridge. Following his meeting with appellant, Terrell diagnosed "Major Depressive Disorder, single episode, moderate" and an unspecified anxiety disorder. In his report, Terrell noted that anxiety and depression can affect both attention and memory. Terrell concluded that appellant was extremely depressed and anxious when he reviewed and entered into the plea agreement in this matter. "His symptoms of major depression include significant impairment in concentration and memory." (Emphasis omitted.) These impairments were "likely made worse by his coexisting anxiety." Terrell did not believe that appellant suffered from dementia or a cognitive neurological disorder. Terrell, however, believed "it much more likely than not that [appellant] was unable to adequately comprehend the nature of the plea bargain offer as gone over with him by his attorney and as gone over with him by the Court at the time he signed the document and at the time he entered into the plea bargain offer."
4. A.A. Howsepian, M.D., Ph.D.
A.A. Howsepian, a psychiatrist, met twice with appellant in October 2014 at the request of the Merced County District Attorney's office. The purpose of his meetings with appellant was to determine whether appellant was competent to initial and sign the plea agreement that he entered in this matter. Howsepian reviewed the other medical professionals' reports, as well as other documents related to this criminal proceeding. He opined that appellant was competent to have accepted the plea agreement on May 17, 2013, and he was competent to have signed and initialed the Plea Form on that same date.
Howsepian found it interesting that appellant first claimed he had "no recollection whatsoever" of seeing the Plea Form in this matter. However, during their second interview appellant "now has a clear recollection of being in State Court when his plea was entered and denies having had any dissociative symptoms" during that process. (Emphasis omitted.) Appellant also reported that he was "calm and composed" during the plea process in this matter because it involved concurrent sentencing to the federal case. Howsepian ultimately diagnosed appellant with: "(1) Adjustment Disorder with Anxiety, (2) Dissociative Amnesia, (3) history of Depersonalization/Derealization Disorder, during periods of substantial stress, (4) Unspecified Neurocognitive Disorder (symptoms, all of which might be best explained by his other psychiatric diagnoses), [and] (5) history of Major Depressive Disorder (currently in remission)." He explained appellant's difficulty in remembering events was the result of dissociative amnesia, which did not mean he was unable to understand the events.
B. The resolution of the related federal matter.
On or about January 7, 2015, judgment was entered against appellant in the related federal matter and he was sentenced to 27 months in prison. Sentence was stayed until restitution issues were resolved. On February 23, 2015, the federal court ordered appellant to make restitution of $1,801,832.50, and he was deemed jointly and severally liable for this amount along with his codefendants.
Although appellant received a 44-month sentence in this present matter, it was understood he would only serve 22 months based on credits.
Appellant moved to withdraw his plea in the federal matter, claiming he suffered from short-term memory loss and Alzheimer's disease, which led him to plead guilty despite being innocent. (United States v. Cuellar (9th Cir. 2016) 646 F.Appx. 574, 576.) The district court denied that motion, which the Ninth Circuit Court of Appeals affirmed in 2016. (Id. at p. 577.) On October 3, 2016, the United States Supreme Court denied certiorari. (Cuellar v. United States (2016) ___ U.S. ___ [137 S.Ct. 105, 196 L.Ed.2d 86].)
C. The hearing in this matter regarding appellant's change of plea.
In June 2015, the trial court held an evidentiary hearing over two days regarding appellant's motion to withdraw his plea in this matter. Appellant testified at the hearing on June 19, 2015.
1. Appellant's testimony.
Appellant generally testified that he had not understood the Plea Form when he reviewed it with Foster. They went over everything very quickly. According to appellant, Foster had not explained what everything meant, Foster had not reviewed his constitutional and statutory rights, and they had not discussed potential defenses. Appellant said he initialed the Plea Form because Foster was "guiding" him and he had relied on the advice of counsel.
Foster began representing appellant sometime in 2009 or 2010. Appellant denied knowing the elements for the three counts to which he entered changes of plea. He generally claimed that Foster had not spent much time with him in the months leading up to this change of plea. At the hearing, he adamantly declared he was not guilty. He said he had always maintained his innocence when speaking with Foster. He told the judge at the hearing that other people were responsible for any diversion of construction funds and any failure to pay payroll taxes. He said he did not handle payroll taxes and he had never caused anyone to handle hazardous waste.
Appellant understood that the plea in this matter was connected to the federal case, and he knew his sentence in this matter would be less than his federal sentence of 27 months in prison. He admitted that, when he appeared in state court that day, he knew he was going to enter a plea in this matter. When asked if the federal plea had any influence on his change of plea in this matter, appellant stated that his sentence in this matter was reduced. He later agreed that the "only concern" was whether the sentence in this case was going to be concurrent with the federal sentence.
Appellant testified that he had "felt pressured" to enter this plea because of Foster and the codefendants. He denied knowing if a factual basis existed for his pleas, which he claimed Foster had never explained. Although he initialed paragraph number 22, indicating nobody had made promises to him, appellant claimed he "felt pressured" because of the "package deal" and his "attorney was pressuring me saying that it would be in my best interest to accept the plea." He testified that he did not "freely" enter this change of plea because there was "pressure to accept it." He said he did not have time to ask Foster questions as he reviewed the Plea Form. He signed it even though he was not guilty because he had "no choice" and he did not want to go against his attorney.
Regarding restitution, appellant agreed that he read that restitution may be ordered, along with a restitution fine, but he had not understood that restitution would be ordered. He had discussed restitution with Foster "very little" in the federal case, but they had not discussed restitution at all in this matter.
Appellant recalled going into the courtroom "toward the end of the day." He could not remember much of his conversation with the judge. He recalled that the total sentence would be 44 months in the present matter, which would be concurrent to the federal sentence. He could not remember the questions the judge asked him, or how he answered. Reviewing a transcript of that hearing did not refresh his memory. When asked why he did not tell the judge that he was not guilty, appellant answered, "Because I felt that, you know, I had no -- that I had no choice, that I had to answer, you know."
The record suggests this was approximately 4:18 p.m.
2. Foster's testimony.
On June 29, 2015, Foster testified about appellant's change of plea in this matter and the history of their relationship.
On the day of the change of plea in this matter, the parties met at court at approximately 1:30 p.m. The attorneys finalized the agreement, and met with the judge. Foster then met with appellant privately, and they reviewed the Plea Form. Foster gave it to appellant to read, and Foster used the restroom. He came back "and went through it with him fairly quickly." At that point, appellant had already entered a plea in the federal matter.
Foster agreed that the plea in this matter "was kind of an afterthought." It was known that appellant would serve 27 months in federal prison. According to Foster, appellant "wanted to wrap both cases up. It didn't make sense to any of the attorneys -- and I didn't think to any of the defendants -- to go to trial on this case once we had already entered a guilty plea in the Federal Courts, and everyone seemed to be of the opinion that this was just something that needed to be done." Foster could not recall appellant asking him any questions when he entered his plea in this case. Foster said this was "a very quick, very pro forma hearing."
Although Foster agreed that they reviewed the Plea Form quickly, he disputed appellant's claim that he did not review the information with appellant. According to Foster, he went through each of the advisements in the Plea Form, and he asked appellant if he had any questions. Foster recalled using a "scripted shorthand" when he explained the Plea Form. He believed he would have said something and explained the information contained in each box that appellant initialed. They briefly discussed the factual basis for the plea.
Foster agreed that he did not discuss potential defenses with appellant during this meeting, and they did not discuss the elements of the offenses. However, Foster explained that he had gone through the original indictment with appellant and he had discussed some of the elements that the prosecutor had to prove. He claimed he had met with appellant "fairly regularly." He had reviewed potential defenses with appellant many times and he reviewed the charges with him "a number of times." He believed appellant understood the global charges. Appellant had seemed to understand everything but he would often repeat the same question at a subsequent meeting. Foster testified that he always answered appellant's questions. He believed that appellant understood the charges and the potential defenses.
Prior to this change of plea, the parties had discussed an earlier settlement offer. At one point, the parties had attempted a global settlement of both federal and state matters, but appellant had held out (and potentially one other codefendant), and the matters were then settled piecemeal. Foster agreed that he met with appellant before pleading in this matter and they discussed trying to avoid criminal exposure. Foster believed that appellant's focus was on how long his sentence would be in this matter.
Foster recalled that the only "real discussion" that occurred about the state matter was "custody time" and restitution. They discussed that appellant would receive a concurrent sentence in this matter to the federal sentence, and he would not do any additional time in the state case. Foster assured appellant that he would seek a restitution hearing in this matter if needed, and Foster believed that restitution had been discussed both prior to this change of plea and while they reviewed the Plea Form. It was understood that restitution would not be duplicated in the federal and state cases. However, Foster admitted that nobody anticipated that appellant would be ordered to pay restitution of almost two million dollars in the related federal matter. Foster had anticipated restitution between $300,000 and $400,000.
Foster admitted that the plea agreement in the related federal matter had been a rush to complete. He had received the federal government's plea offer only a few days before that trial was set to commence. He had met with appellant at lunch the day before trial was set to start and he had given appellant the 22-page plea agreement. He testified that he had tried to answer appellant's questions.
According to Foster, appellant never indicated that he felt pressured to enter the plea in this case but appellant had lodged reservations about the plea in the federal case. Appellant had always said he was not guilty. Foster explained that appellant had made admissions that exposed him to criminal liability. Foster described this change of plea as "a fait accompli" after the plea in the federal matter. Foster told appellant this was the best deal he would receive, and Foster agreed it was a package deal so all codefendants had to plead.
In retrospect, Foster admitted that he was not certain if appellant had understood everything when they went through the Plea Form. At the time of the plea, however, appellant seemed to understand the factual basis for the plea. Foster admitted that, during the course of their many meetings together, he had noticed that appellant often repeated himself and raised the same questions. As time went on, Foster had concerns that appellant was not remembering their conversations or did not completely understand what they had discussed. Foster was concerned at "various times" about appellant's mental ability to understand what was happening. He did not refer him to a psychologist or a psychiatrist because they had developed a friendship beyond the attorney-client relationship. Foster had been "concerned" he might hurt appellant's feelings if he suggested appellant was unable to understand or comprehend their conversations. Foster admitted that he had developed concerns that appellant might have cognitive issues, but he never followed up with those concerns. Although Foster had to answer the same questions from appellant, he believed it was because appellant was anxious and needed a lot of reassurances. In retrospect, that "probably should have" given Foster pause as to whether or not appellant understood the answers.
3. Capozzi's arguments.
After the evidence was presented, Capozzi argued that the "major issue" was whether or not appellant knowingly, intelligently and voluntarily entered the plea. He noted that the amount of restitution that might be ordered was unclear, and all of the defense attorneys "were surprised" when $1.8 million in restitution was ordered. Capozzi said restitution was "a major factor" in the plea.
The trial court acknowledged that this was not a "normal" case but the Plea Form had advised "that restitution may be ordered." Although that was "not a lot of language," it had alerted appellant about possible restitution. The court noted a restitution amount is normally unknown at the time of the plea and that does not invalidate plea agreements. According to the court, the factual basis for the plea was "clearly stated in the federal case." The court did not recall "going into details on the factual basis of the plea" other than the "few lines" in the written advisement of rights.
Capozzi noted that the plea agreement in the federal matter was rushed. He raised concerns about appellant's memory problems and possible dementia. He asserted that the factual basis was unclear for the change of pleas. He argued the record did not show that appellant received advice regarding the restitution. Instead, Foster had treated this matter as a "fait accompli" in light of the federal plea. When everything was examined cumulatively, Capozzi contended that appellant's plea was not knowing, intelligent and voluntary, especially with the pressure from the codefendants to accept the plea agreement.
D. The trial court's ruling.
In ruling on the motion, the trial court noted that appellant had been under "a lot of stress" and he suffered from "memory problems." The court, however, did not believe the memory issues, without more, were sufficient grounds to grant the motion. The amount of restitution sought in this matter was "unusually high" but appellant underwent the standard felony advisement of rights. Although appellant had explained his lack of understanding, the court believed the motion was not supported by clear and convincing evidence. The court determined that "the medical evidence is a little mixed here." The court accepted Foster's testimony that he had discussed with appellant on a number of prior occasions the specific facts, circumstances, and defenses involved in this case. The parties had gone through the change of plea in the related federal matter, which is why "less attention" had been paid to certain details during this change of plea. As Foster had characterized it, this was a "done deal" in terms of mirroring the related federal matter. The trial court denied the motion.
E. Sentencing and the imposition of restitution in this matter.
On June 29, 2015, shortly after denying appellant's motion to withdraw his plea, the trial court sentenced him in conformity with the plea agreement. Appellant received an aggregate sentence of three years eight months to run concurrently with appellant's federal sentence. Appellant was to start his federal sentence the following day. The court and parties understood that appellant would serve approximately 22 months of his state sentence in light of conduct credits. This matter was continued for further proceedings regarding restitution.
On January 25, 2016, the trial court ordered appellant to pay restitution in this matter in the amount of $10,877 to the County of Merced Planning Department. In addition, he was held jointly and severally liable for an additional $105,046.09 to various victims.
It is unclear from this record to what extent, if any, the restitution ordered in the present matter duplicated the restitution ordered in the federal case.
DISCUSSION
Appellant's sole issue on appeal is whether the trial court abused its discretion in denying appellant's motion to withdraw his plea. He argues the trial court erred, claiming his plea was not knowing, voluntary and intelligent. To establish good cause, he points to his depression and memory problems, the limited time he had to review the offer, the "pressure" from the packaged deal with his codefendants, his defense counsel's "abbreviated review" of the plea bargain, and his counsel's "incorrect advice" regarding restitution. He asserts justice would be promoted in allowing him to withdraw his plea. We disagree and find appellant's contentions unpersuasive.
I. The Trial Court Did Not Abuse Its Discretion.
"At any time before judgment, or within six months after an order granting probation if entry of judgment is suspended, a trial court may permit a defendant to withdraw a guilty plea for 'good cause shown.' (]Pen. Code,] § 1018.)" (People v. Patterson (2017) 2 Cal.5th 885, 894 (Patterson).) The defendant bears the burden to produce clear and convincing evidence of good cause. (Ibid.; accord, People v. Wharton (1991) 53 Cal.3d 522, 585.) Good cause to grant such a motion exists based on mistake, ignorance, or any other factor overcoming the exercise of free judgment. (Patterson, supra, 2 Cal.5th at p. 894.) Inadvertence, fraud or duress are other factors that may overcome a defendant's free judgment. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208 (Huricks).) Penal Code section 1018 is to be "liberally construed" in order "to promote justice." (Ibid.)
A plea of no contest is treated the same as a guilty plea for this purpose. (Pen. Code, § 1016, subd. 3; People v. Ramirez (2006) 141 Cal.App.4th 1501, 1506.)
We review the trial court's denial of this motion under a deferential abuse of discretion standard. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254 (Fairbank).) The trial court's decision is final unless appellant can show a clear abuse of that discretion. (Ibid.) We "must adopt the trial court's factual findings if substantial evidence supports them." (Ibid.) When discretionary power is statutorily vested in the trial court, we will not disturb the trial court's decision on appeal unless " 'the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 (Rodrigues); see People v. Williams (1998) 17 Cal.4th 148, 162 (Williams) [abuse of discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].)
A. We review four opinions which provide guidance.
We begin our analysis with a review of four appellate opinions which provide guidance in this situation.
First, in People v. Ravaux (2006) 142 Cal.App.4th 914 (Ravaux), the defendant pleaded guilty to drug possession with enhancements for prior convictions and a prior prison sentence. (Id. at p. 916.) Before sentencing, he requested a continuance and moved to withdraw his plea, stating that he had not been adequately counseled by his attorney prior to the plea and that at the time of the plea he was suffering from medical problems that resulted in the plea not being given of his own free will. The trial court denied the motion and sentenced him to prison. (Id. at p. 917.) On appeal, he argued that the trial court abused its discretion. The Court of Appeal disagreed. (Id. at p. 919.)
In affirming the judgment, the Ravaux court noted that the defendant had "indicated numerous times that he understood the consequences of the guilty plea and the rights he was waiving. He completed the plea form, attesting that he understood and accepted fully the plea agreement and the rights he was required to waive in order to accept the deal." (Ravaux, supra, 142 Cal.App.4th at p. 918.) The defendant attested in the plea form that he was sober and his judgment was not impaired. (Ibid.) While entering his plea in front of the court, the defendant was again apprised of his rights, informed of the consequences of a guilty plea, and advised by counsel. "He acknowledged and answered affirmatively to each of the court's explanations before entering his plea." (Ibid.) Nothing in the record demonstrated that the defendant had been impaired, confused or less than completely lucid during his change of plea. (Ibid.) At no time did his medical condition or demeanor indicate to his attorney or the court that he was intoxicated or confused, rendering his judgment impaired. (Ibid.) His claim that his judgment had been impaired by medication was contrary to the position he took under oath at the time he gave his change of plea. The trial court also recalled the defendant's demeanor and performance at the plea hearing, which undercut the defendant's claims. (Ibid.)
The defendant in Ravaux also argued that he should be allowed to withdraw his plea due to inadequate legal advice. (Ravaux, supra, 142 Cal.App.4th at p. 918.) However, he was allowed to consult with counsel prior to, and was represented by counsel at, the change of plea hearing. He was represented by legal counsel during the entire criminal process. (Id. at pp. 918-919.) "The fact that he may have been persuaded, or was reluctant, to accept the plea is not sufficient to warrant the plea being withdrawn." (Id. at p. 919.) " 'Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.' " (Ibid.) The appellate court affirmed the judgment. (Id. at p. 922.)
Second, in Huricks, supra, 32 Cal.App.4th 1201, the defendant entered a plea of no contest to multiple counts of sex crimes, and admitted special allegations. He subsequently filed a motion to withdraw his plea, which was denied. (Id. at p. 1204.) On appeal, he claimed he had been induced to enter the change of plea because of undue duress. (Id. at p. 1207.) The appellate court disagreed, noting that his claim of family pressure was not enough to constitute duress. "Nothing in the record indicates he was under any more or less pressure than every other defendant faced with serious felony charges and the offer of a plea bargain." (Id. at p. 1208.) The Huricks court reviewed why the defendant had "natural anxiety" from the criminal allegations; he had used his position as a teacher's aide to take advantage of a young female student who suffered from cerebral palsy. The allegations had attracted "considerable media attention," and the defendant had feared for his own safety. These factors, however, failed to establish "that his free will was overcome in entering the plea." (Ibid.)
Third, in People v. Urfer (1979) 94 Cal.App.3d 887 (Urfer), the defendant entered a change of plea to a drug charge. During the procedure, the defendant was represented by counsel, and he "made clear answers; did not remotely suggest that he was innocent of the charge, or that he was acting reluctantly, unwillingly or in any manner other than as a result of his free will." (Id. at p. 889.) He subsequently sought to withdraw his plea of guilty. To support the motion, defense counsel made representations to the trial court that the defendant had entered the plea unwillingly and with reluctance. (Id. at p. 890.) Defense counsel asserted that the defendant had yielded to his counsel's " 'persuasions and prejudices.' " (Id. at p. 892.) The Court of Appeal concluded that these representations did not establish that the change of plea had been involuntary. (Ibid.) "Lawyers and other professional men often persuade clients to act upon advice which is unwillingly or reluctantly accepted. And the fact that such advice is unwillingly or reluctantly acted upon is not a '. . . factor overreaching defendant's free and clear judgment' of what should be done to find a means to alleviate the situation with respect to which the client seeks advice." (Ibid.) The defendant's attorney had known and represented the defendant for about 12 years. (Id. at p. 893.) Urfer held that the trial court did not abuse its discretion in denying the motion to withdraw. (Ibid.)
Finally, in People v. Hunt (1985) 174 Cal.App.3d 95 (Hunt), there was contradictory evidence regarding whether or not the defendant was adequately advised before pleading guilty to multiple sex offenses. (Id. at pp. 100, 104.) However, the Court of Appeal held that the motion to withdraw his plea was properly denied. It was not enough that the defendant entered his plea "'against his better judgment'" because that only demonstrated his ongoing reluctance and vacillation between going to trial and entering a plea. (Id. at p. 104.) "The record does not demonstrate mistake, ignorance or overbearance of his free will." (Ibid.) The judgment was affirmed. (Id. at p. 110.)
Here, these four opinions establish that the trial court did not abuse its discretion in denying appellant's motion. Similar to Ravaux, supra, 142 Cal.App.4th 914, appellant "indicated numerous times that he understood the consequences of the guilty plea and the rights he was waiving. He completed the plea form, attesting that he understood and accepted fully the plea agreement and the rights he was required to waive in order to accept the deal." (Id. at p. 918.) Appellant attested in the plea form that he was sober and his judgment was not impaired. (Ibid.) While entering his plea in front of the court, appellant was again apprised of his rights, informed of the consequences of a guilty plea, and advised by counsel. Appellant acknowledged and answered affirmatively to each of the court's explanations before entering his plea. (Ibid.) Nothing in the record demonstrated that appellant had been impaired, confused or less than completely lucid during his change of plea. (Ibid.) At no time did his anxiety, depression and/or memory loss indicate to his attorney or to the court that he was confused or had impaired judgment. (Ibid.) Appellant's claim that his depression and/or memory loss impaired his judgment was contrary to the position he took under oath at the time he gave his change of plea. (Ibid.)
Like the defendant in Ravaux, appellant was allowed to consult with counsel prior to, and was represented by counsel at, the change of plea hearing. He was represented by legal counsel during the entire criminal process. (Ravaux, supari, 142 Cal.App.4th at pp. 918-919.) "The fact that he may have been persuaded, or was reluctant, to accept the plea is not sufficient to warrant the plea being withdrawn." (Id. at p. 919.) " 'Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.' " (Ibid.)
Akin to Huricks, supra, 32 Cal.App.4th 1201, nothing in this record indicates that appellant was under any more or less pressure than every other defendant faced with serious felony charges and the offer of a plea bargain. (Id. at p. 1208.) Although appellant had "natural anxiety" from the criminal allegations, this does not show that his free will was overcome. (Ibid.)
Finally, as in Urfer, supra, 94 Cal.App.3d 887, and Hunt, supra, 174 Cal.App.3d 95, appellant may have entered his change of plea against his better judgment, and he likely felt pressure to enter the plea based on his counsel's advice. However, lawyers often persuade clients to act upon advice which is unwillingly or reluctantly accepted. This does not establish an involuntary choice (Urfer, supra, at p. 892) or that free will was overborne. (Hunt, supra, at p. 104.) Moreover, appellant had a long relationship with Foster. During the change of plea hearing, appellant gave clear answers, did not suggest he was innocent, and did not act reluctantly. (Urfer, supra, at p. 889.)
Collectively, these four opinions support our conclusion that the trial court did not abuse its discretion in denying appellant's motion to withdraw his plea.
B. The medical records do not establish an abuse of discretion.
Appellant claims that his memory issues and depression rendered his change of plea involuntary. In denying his motion, the trial court found that appellant had been under a lot of stress during this criminal procedure and during the change of plea process, but that there was no agreement among the medical professionals regarding appellant's condition. The trial court found that appellant had "memory problems." Because substantial evidence supports these factual findings, we must adopt these facts in conducting our review. (Fairbank, supra, 16 Cal.4th at p. 1254.)
Although the trial court found that appellant had memory problems, its denial of his motion was not an abuse of discretion. The examining psychiatrists and psychologists did not agree on appellant's mental and emotional condition. Three of the four evaluators believed that appellant was not suffering from dementia or Alzheimer's disease. One of the psychiatrists, Howsepian, opined that appellant was competent to have accepted the plea agreement and to have signed and initialed the Plea Form on May 17, 2013. In contrast, the other psychiatrist, Terrell, believed "it much more likely than not" that appellant was unable to comprehend adequately the nature of the plea bargain offer.
Neither of the psychologists, Seymour and Stembridge, specifically addressed appellant's change of plea in either the federal or state matters. They did not opine on whether appellant may have understood his change of plea.
As the trial court noted, the medical reports were "a little mixed here." Because of the conflict in the evidence from the medical experts, the trial court was entitled to resolve the factual conflict against appellant. (Hunt, supra, 174 Cal.App.3d at p. 104 ["Where two conflicting inferences may be drawn from the evidence, it is the reviewing court's duty to adopt the one supporting the challenged order."].) Taken together, the reports from the medical professionals, including appellant's memory problems, do not establish by clear and convincing evidence that appellant's change of plea that was not knowing, voluntary and intelligent.
C. Appellant's plea was not invalid because the process was rushed or his review with counsel was abbreviated.
We disagree with appellant's claim that his plea was involuntary because the process was rushed or his review with counsel was abbreviated. The grand jury returned its indictment against appellant on November 19, 2010. Appellant had at least two and a half years to contemplate the nature and validity of the charges against him prior to entering his plea on May 17, 2013. Appellant had received earlier offers to settle this matter, which he rejected. He was represented by legal counsel at all times and Foster testified that they met regularly.
We can not determine from this record the exact amount of time appellant discussed the eventual plea agreement with Foster. Appellant, however, appeared in state court on the day of his plea with the understanding he would settle this matter. He knew that a plea in this matter was connected to the federal case, and he knew his sentence in this matter would be less than his federal sentence of 27 months in prison. When asked if the federal plea had any influence on his plea in this matter, appellant stated that his sentence in this matter was reduced. He later agreed that the "only concern" was whether the sentence in this case was going to be concurrent with the federal sentence. Although Foster reviewed the change of plea with appellant in "a short period of time[,]" appellant informed the trial court that he had sufficient time to consult with his attorney, he had read and understood the Plea Form, and he had no questions for the trial court.
Foster testified that he met regularly with appellant, and he answered all of appellant's questions. Over the course of his representation, Foster reviewed both the federal and state charges, went over defenses, and discussed plea negotiations. Foster believed that appellant had understood the factual basis for the plea, even if appellant did not agree with it. The trial court was entitled to accept Foster's version of events. (See People v. Smith (1993) 6 Cal.4th 684, 696 (Smith) [trial court permitted to accept counsel's version of events during disputed hearing involving competency of representation].) This record does not establish an abuse of discretion.
Appellant cites Doe v. Woodford (9th Cir. 2007) 508 F.3d 563 (Woodford). This opinion does not assist him.
We note that we are not bound by decisions of the lower federal courts, even on questions of federal law. (McLaughlin v. Walnut Properties, Inc. (2004) 119 Cal.App.4th 293, 297; Black v. Department of Mental Health (2000) 83 Cal.App.4th 739, 747.)
In Woodford, supra, 508 F.3d 563, jury selection began in the defendant's murder trial. (Id. at p. 566.) After the jury had been empaneled, both parties asked for a delay in opening statements in order to discuss a plea agreement. (Ibid.) The court agreed and a two-hour recess commenced. The defendant's attorney then announced a resolution, and the defendant entered a negotiated plea of guilty to first degree murder. (Ibid.) He was sentenced to prison for 25 years to life. (Ibid.) After the defendant exhausted his state appellate remedies, the Ninth Circuit Court of Appeal eventually considered, in part, whether his plea agreement had been involuntary because he was allowed only two hours to accept or reject it. (Id. at pp. 566-567.) The Ninth Circuit noted that "case law on this issue is quite limited." (Id. at p. 570.) However, it held that the amount of time the defendant had to consider the plea "is only relevant if it somehow rendered his plea coerced, and therefore involuntary." (Ibid.) The Ninth Circuit determined that the jury had already been empaneled and opening arguments had been delayed to give the parties time to consider a plea bargain. (Ibid.) There was a "plausible reason for the arguably short two hours" the defendant had to consider the plea agreement. (Ibid.) The Ninth Circuit concluded that the state trial court's decision was not contrary to, or involved an unreasonable application of, clearly established federal law. The trial court had conducted a thorough plea colloquy and had asked if the defendant had sufficient time to discuss the plea agreement with his counsel. (Ibid.)
To support his claim, the defendant in Woodford had also submitted medical testimony regarding his mental state. Based on his immaturity, history of head injury, limited education and drug usage, a doctor had opined that the defendant had a reduced mental state at the time he had considered the plea agreement. The doctor, however, had admitted no evidence supported a " 'major mental illness diagnosis.' " (Woodford, supra, 508 F.3d at p. 571.) "Any evidence of mental deficiencies did not undermine the voluntariness of [the defendant's] plea even in light of the alleged limitation to two hours he claims he had to consider the proposed plea agreement." (Ibid.)
Finally, the defendant had testified at the evidentiary hearing that he had difficulty in making the decision to plead guilty. "We have no doubt that the decision to plead guilty is a difficult one for many defendants, but the fact that one struggles with the decision, and might later even come to regret it, does not render it coerced." (Woodford, supra, 508 F.3d at p. 572.) The defendant participated in a thorough plea colloquy. He answered in the affirmative that his plea was voluntary under the circumstances, and he agreed that he had sufficient time to discuss the plea with his counsel. The Ninth Circuit concluded that the California Supreme Court "was not objectively unreasonable" in determining that the defendant's plea had been voluntary. (Ibid.)
Here, like in Woodford, appellant had a short time to consider his plea. However, also similar to Woodford, appellant informed the trial court that his plea was voluntary and he agreed that he had received sufficient time to discuss the plea with his counsel. As in Woodford, the medical evidence did not undermine the voluntariness of appellant's plea even in light of the short time period he had to consider the proposed plea agreement. Finally, like the defendant in Woodford, we have no doubt that appellant's decision to change his plea was very difficult, but the fact that one struggles with the decision, and might later even come to regret it, does not render it coerced. Woodford does not establish an abuse of discretion in this situation.
D. Appellant's pleas were not coerced by his codefendants.
Appellant maintains that his change of plea was involuntary because of coercion by his codefendants. We disagree.
Package offers among multiple codefendants are valid so long as their terms are not coercive. (Liang v. Superior Court (2002) 100 Cal.App.4th 1047, 1056.) To determine if a packaged deal is coercive, the "totality of the circumstances" should be examined. (In re Ibarra (1983) 34 Cal.3d 277, 286-287 (Ibarra), abrogated on other grounds as recognized in People v. Mosby (2004) 33 Cal.4th 353, 360.) Factors relevant to this inquiry include: (1) whether the inducement for the plea is proper, including whether the prosecution has a reasonable, good faith case against any third party to whom leniency is promised; (2) whether there is an adequate factual basis for the plea; (3) the nature and degree of coerciveness that is present (i.e., the closeness of the relationship between the defendant and the third party, or whether the third party specifically threatened the defendant); and (4) whether the promise of leniency to a third party was a significant consideration in the defendant's decision to plead guilty. (Ibarra, supra, 34 Cal.3d at pp. 288-290.)
The parties agree that the trial court failed to inquire into the Ibarra factors when accepting appellant's change of plea. Appellant, however, concedes that the package nature of the deal did not render his plea involuntary. Rather, he asserts "the additional pressure" from his codefendants' "anxiety" to resolve this matter was one factor in rendering his plea involuntary. We find this contention unpersuasive.
We have already determined that the trial court did not abuse its discretion in accepting this change of plea. Nothing suggests that appellant and his codefendants held a "special relationship" that might make his change of plea involuntary. There is no evidence that appellant entered his change of plea because of a promise of leniency to a third party.
Based on this record, we find unpersuasive appellant's assertion that his change of plea was made involuntary because of his codefendants. We also find no prejudice from the trial court's failure to review the Ibarra factors in this situation. (See Ibarra, supra, 34 Cal.3d at p. 290, fn. 6 [a defendant must establish both the trial court's lack of inquiry and also the involuntary character of the plea].) As such, we reject this argument and this claim fails.
E. Appellant cannot withdraw his plea based on alleged ineffective assistance of counsel.
Appellant asserts that Foster rendered ineffective assistance of counsel by failing to inform him that additional restitution would be ordered in this matter. He contends this constituted good cause to withdraw his plea. We find no ineffective assistance of counsel.
When ineffective assistance of counsel results in a 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 (Alvernaz).) To challenge a guilty plea on the ground of ineffective assistance of counsel, "a defendant must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel's incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial." (Ibid.)
Here, although the amount of restitution ordered in the related federal matter was very high, and a shock to all involved parties, nothing establishes that Foster acted incompetently in this matter. It was understood that any restitution in this matter would not duplicate the restitution ordered in the federal case. Appellant acknowledged in the Plea Form that he could be ordered to pay restitution in this matter. Foster advised appellant that he would request a restitution hearing if needed.
Appellant testified that he had no discussion with Foster regarding restitution in this matter. Foster, however, said he discussed each of the advisements in the Plea Form, including restitution. The trial court was entitled to accept Foster's version of events. (See People v. Quesada (1991) 230 Cal.App.3d 525, 533 [trial court must judge credibility when resolving hearing under Penal Code section 1018; see also Smith, supra, 6 Cal.4th at p. 696 [trial court permitted to accept counsel's version of events during disputed hearing involving competency of representation].) It is clear that restitution was addressed in the Plea Form, and appellant initialed and signed that document after reviewing it with Foster. Appellant has not met his burden of establishing that Foster failed to act competently regarding restitution or in giving advice about restitution. Consequently, appellant's ineffective assistance of counsel claim must fail. (See Alvernaz, supra, 2 Cal.4th at p. 934.)
Based on this record, the evidence does not establish that appellant's change of plea was involuntary. The trial court did not exercise its discretion to deny this motion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (See Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.) The lower court's ruling did not fall outside the bounds of reason under the applicable law and relevant facts. (See Williams, supra, 17 Cal.4th at p. 162.) Accordingly, the trial court did not abuse its discretion and this claim fails.
DISPOSITION
The judgment is affirmed.
/s/_________
ELLISON, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
DETJEN, J.
Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------