IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 16, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JEFFREY BERROUET, DEFENDANT AND APPELLANT.
APPEAL from the Superior Court of San Bernardino County. John P. Vander Feer, Judge. Affirmed. (Super.Ct.No. FBA800433)
The opinion of the court was delivered by: McKinster J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On August 27, 2008, a third amended felony complaint charged defendant and appellant Jeffrey Berrouet and co-defendant Dudzai Prosper Pswatai with (1) murder of Robert Mastrangelo (the victim) under Penal Code*fn1 section 187, subdivision (a) (count 1); (2) kidnapping of the victim under section 207, subdivision (a) (count 2); and (3) second degree robbery of the victim under section 211 (count 3). The complaint also charged co-defendant Pswatai with solicitation of murder under section 653f, subdivision (b). Moreover, the complaint alleged that counts 1, 2, and 3 were committed for the benefit of, at the direction of, or in association with a criminal street gang, within the meaning of section 186.22, subdivision (b)(1)(C). The complaint further alleged that, with respect to counts 1, 2, and 3, a principal personally used a firearm, a handgun, under section 12022.53, subdivisions (b) and (e)(1); a principal personally and intentionally discharged a firearm, a handgun, under section 12022.53, subdivisions (c) and (e)(1); and a principal personally and intentionally discharged a firearm, a handgun, which proximately caused great bodily injury and death to the victim under section 12022.53, subdivisions (d) and (e)(1).
At the arraignment on February 17, 2009, defendant entered a plea of not guilty and denied the allegations. The next day, pursuant to a plea agreement, defendant pled guilty to first degree felony murder, based on his participation in a robbery, in exchange for a sentence of 25 years to life and a dismissal of the remaining counts and allegations. Moreover, pursuant to the plea agreement, defendant agreed to testify in the proceedings related to co-defendant Pswatai.
On March 11, 2009, defendant filed a motion to withdraw his guilty plea. An amended motion was filed on June 25, 2009. The People opposed defendant's motion. On September 11, 2009, at the conclusion of the evidentiary hearing, the trial court denied defendant's motion. Thereafter, on October 19, 2009, the trial court sentenced defendant to 25 years to life in state prison.
On October 27, 2009, defendant filed a notice of appeal. That same day, the trial court granted defendant's request for a certificate of probable cause. On appeal, defendant contends that the trial court erred in denying his motion to withdraw his guilty plea. For the reasons set forth below, we shall affirm the judgment.
STATEMENT OF FACTS*fn2
On June 14, 2008, a jogger discovered the victim's body on the side of the road in Barstow. The victim, clothed only in underwear, had a gunshot wound to his head, a gunshot wound below his left nipple, an injury to the rear of his head, and a wound in the center of his stomach. He also had bruises on his legs; his ankles were bound with a piece of black cloth.
The victim's sister, Kimberly, who had reported the victim missing, told police that she last saw her brother alive on June 11, 2008, when she dropped him off at a fast food restaurant. The victim was to meet with defendant, also known as "Flutter" or "Slutter," at the restaurant. Also, the victim, an aspiring rap music star known as "Self Sufficient," may have been involved in the sale of the drug ecstasy.
Defendant's girlfriend, Celina Sanchez,*fn3 told police that on June 10, 2008, defendant and co-defendant Pswatai (also known as "Baby IQ") were angry. They talked about doing an "Alpha Dog" (kidnapping, holding hostage, tying up and killing) to someone who wronged defendant and co-defendant. The next day, defendant and co-defendant Pswatai borrowed Sanchez's vehicle to talk to someone. After they returned to Sanchez's house, she saw co-defendant Pswatai counting a large sum of money. On June 12, defendant borrowed Sanchez's vehicle again. Defendant returned the car, washed and without the floor mats. Sanchez suspected that defendant and co-defendant Pswatai had kept a person in her garage; police found areas of suspected blood stain on the floor.
Classy M., who also lived in Sanchez's house, saw co-defendant Pswatai counting money on the night of June 11th. She noticed that defendant and co-defendant were "nervous and jittery." At one point, co-defendant Pswatai came in from the garage and asked for a rope. He also requested cleaning products.
After his arrest, co-defendant Pswatai blamed defendant for the killing. Pswatai admitted that he helped defendant tie up the victim, and that he gave defendant the bullets. Pswatai also admitted holding the victim's legs down. Pswatai said he saw "four big gang bangers" beating up the victim and kicking the victim on his head.
Defendant's friend, Arlene F., reported that she heard co-defendant Pswatai say, "I didn't mean to shoot him, I was tripping[,]" "it was a 'drug deal gone bad," and that "he was going to rob the guy but shot him because he lost control." Arlene F. heard defendant reply, "yeah, I don't know why you had to go and shoot him."
Defendant contends the trial court abused its discretion in denying his motion for leave to withdraw his guilty plea because his trial counsel rendered ineffective assistance of counsel. The People contend that defendant is barred from appealing his guilty plea because of his "express waiver of his right to appeal." We need not address the People's waiver argument because defendant's argument fails on the merits.
A defendant who has entered a guilty plea may move to withdraw the plea, upon a showing of good cause, at any time before judgment has been entered. (People v. Sandoval (2006) 140 Cal.App.4th 111, 123.) A defendant establishes "good cause" if he or she was operating under mistake, ignorance, or any other factor which would overcome the exercise of free judgment. (Ibid.) The burden is on the defendant to show by clear and convincing evidence that the ends of justice would be served by permitting a withdrawal of the guilty plea. (Ibid.)
When the defendant has been represented by counsel at the guilty plea stage, granting or denying a motion to withdraw the plea is a matter committed to the sound discretion of the trial court. (People v. Sandoval, supra, 140 Cal.App.4th at p. 123.) On appeal, we will affirm the trial court's exercise of its discretion unless a clear abuse has been shown.
In this case, at the hearing on the motion to withdraw, three witnesses testified: (1) defendant; (2) David Leich, defense counsel who represented defendant at the guilty plea hearing; and (3) Keith Libby, one of the detectives who arrested defendant.
Defendant testified that he wanted to withdraw his guilty plea because he was not guilty. He felt he made a mistake in pleading guilty. Defendant stated that he pled guilty because there was "a lot of pressure on me. It felt like a lot of pressure. Like I didn't want to do it, but something. That's the reason. That was it." According to defendant, Attorney Leich, whom defendant met on the same day he pled guilty, spent only five to 10 minutes with defendant. Defendant testified that Leich told him about the prosecution's plea bargain offer of 25 years to life, and that defendant could possibly be sentenced to 150 years. Defendant, however, acknowledged that he first met with Detective Libby on February 14, several days prior to pleading guilty, and that the detective informed defendant about the 25-to-life plea offer.
Defendant went on to testify that he felt that he did not have enough time to consider the plea bargain offer, and that he did not receive adequate advice from his trial counsel. Defendant claimed that he pled guilty "[f]irst thing in the morning."
Before the second witness took the stand, the trial court noted that the transcript of the guilty plea hearing showed that "[t]he plea was entered late in the afternoon and not in the morning as far as the Court taking the plea." In fact, after hearing the evidence presented at the hearing, the trial court stated as follows:
"[B]eing the Court that took the plea, the Court knows this went on all day from the morning when the case was originally calendared for 9:30, it was set for confirmation of counsel at 9:30 in Barstow, in B-2 on February 18 to the time frame when the plea started and basically ended right a five o'clock, and we started I think around approximately 4:30 p.m. with the plea. It was very late in the afternoon."
After defendant, Attorney Leich testified. He stated that on the day he was appointed to represent defendant, he spent the entire day working with him. He started working on the case at 9:00 or 10:00 a.m., and spent "[a]t least two hours" speaking with defendant. Leich testified that same day, he reviewed the files and viewed the entire video of the confession made by defendant. Leich stated that he told defendant about what he observed on the videotaped interview and read him some of the discovery documents, but did not make any recommendation on whether defendant should accept or reject the plea bargain offer. Leich testified that he received over 500 pages of discovery that morning. He stated that it would have taken him more than a day to review the material. He testified, "I read, I scanned through the entire discovery and I read what I thought were important parts." Leich went on to state that he did not interview witnesses or investigate the case outside the courthouse.
The last witness to testify was Detective Libby. Libby testified that on February 14, 2009, the day defendant was arrested, he told defendant about the 25-to-life offer, in exchange for his testimony. The detective testified that on that day, defendant indicated that he wanted to accept the offer.
In a declaration in opposition to the motion, the prosecutor stated that she appeared at defendant's arraignment on February 17, 2009, and that defendant turned to her and stated that he wanted to accept the plea offer. She declared that on the next day, she "provided Attorney David Leicht [sic] with all discovery in this case. I related the facts of the case, the role of his client and the evidence we had collected against him. I provided him with an office and DVD player to spend the day reviewing evidence. Attorney Leicht [sic] began in the morning, did not break for lunch and the plea was ultimately taken during the late afternoon."
On April 5, 2009, defendant made a call from jail to his mother. A transcript of the call showed that defendant regretted pleading guilty in this case. Defendant stated that he was attacked by fellow inmates because he had testified against his co-defendant: "I did testify against him though that's where I messed up. I shouldn't have said nothing [sic]. I shouldn't have took [sic] that deal."
After hearing the testimony of these witnesses, reviewing the transcript of the guilty plea hearing, and its own recollection of the guilty plea proceeding, the trial court denied defendant's motion to withdraw his guilty plea. In making this decision, the court recognized that, notwithstanding defendant's contention that he had no time to consider his plea bargain offer, defendant had five days to consider this offer. The court stated:
"So the argument that this was something that was sprung on [defendant], he had no idea, he was just given that information that day, that is not entirely accurate. He did know. He had February 14 to think about what he wanted to do, the 15th, 16th, 17th, and then on the 18th when he met his attorney, he had five days in his own mind to consider the People's offer and decide whether he wanted to do that or not. He met with an attorney, attorney reviewed the significant portions, and discussed it with [defendant]. He said he spent a couple of hours with him, went back, and the People set a cutoff at the end of the day. So [defendant] had the opportunity to say, you know what I chose to go forward with it, he had plenty of opportunities during that day to say no, I am going to think about it, if I don't, we'll come back with something else, or I am not going to make that decision, whatever happens happens. So be it." Accordingly, the trial court found that defendant had sufficient time to consider the plea offer and discuss it with his attorney.
We agree with the trial court's assessment of the evidence. Despite defendant's assertion that his counsel only spent minutes with him discussing the case, the evidence shows that counsel spent hours with defendant. Moreover, defendant had days to consider whether he should accept the plea agreement. There is nothing in the record to indicate that defendant or his counsel needed additional time to assess the merits of the case against defendant.
Moreover, the trial court found that there was no evidence that any coercion, pressure, menace, force or violence was used against defendant to induce the plea. The court found that defendant had failed to meet his burden of showing--by clear and convincing evidence--a proper basis for withdrawing his guilty plea. The court stated that even with the testimony and declarations submitted, defendant did not state "what the nature of that mistake was" to warrant a reversal of his guilty plea. Instead, the court concluded that defendant simply regretted his decision to testify against his co-defendant because it affected him in jail.
Again, we agree with the trial court's assessment of the evidence. Even on appeal, defendant has failed to provide what mistake, if any, his counsel made to warrant a reversal of his guilty plea. Defendant simply argues the short time frame in which he had to plead guilty warrants a reversal. We disagree.
Based on the above, we cannot say that the trial court's denial of defendant's motion to withdraw his guilty plea was arbitrary, capricious or exceeded the bounds of reason. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) We discern no abuse of discretion.
Nevertheless, defendant contends that he had good cause to withdraw his guilty plea because his counsel rendered ineffective assistance of counsel. He argues that "the short time allowed for consideration of the prosecution's offer prevented [the defense] attorney from providing effective assistance of counsel" with respect to the plea. Defendant also contends that his trial counsel was incompetent for failing to pursue more time to consider the plea offer.
In order to establish a claim of ineffective assistance of counsel, defendant must demonstrate, "(1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result. [Citations.] A 'reasonable probability' is one that is enough to undermine confidence in the outcome. [Citations.]" (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668; accord, People v. Boyette (2002) 29 Cal.4th 381, 430.) Specifically, defendant must demonstrate 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, 59.) Hence, an ineffective assistance of counsel claim has two components: deficient performance and prejudice. (Strickland v. Washington, supra, at pp. 687-688, 693-694; People v. Williams (1997) 16 Cal.4th 153, 214-215; People v. Davis (1995) 10 Cal.4th 463, 503; People v. Ledesma (1987) 43 Cal.3d 171, 217.) If defendant fails to establish either component, his claim fails.
In this case, the record fails to establish deficient performance by defense counsel. Attorney Leich watched defendant's videotaped confessions, reviewed discovery documents, and spoke with defendant for about two hours about the proposed plea agreement. And, as noted by the trial court before accepting defendant's guilty plea, defendant "also has his own knowledge of what he's charged with and his own evaluation of his guilt or innocence of the charges." The evidence demonstrated defendant's eagerness to plead guilty, the trial court observed:
"Apparently, his attorney, Mr. Leich, refers to the videotape as a confession. Although the Court has not seen that videotape, his attorney reviewed that tape and those statements apparently are such that the attorney, Mr. Leich, did not recommend against [defendant] not taking the plea agreement, nor did he recommend it, but he left that up to [defendant]. But the statements weren't such that Mr. Leich felt obligated to say you should never take that plea because I saw the videotape and you should go to trial or try to get a better deal."
Moreover, Attorney Leich stated as follows:
"I met [defendant] today. I received his discovery today. There's approximately, it looks like, around a thousand pages of discovery. Obviously I haven't had a chance to read every word of that discovery; however, I have read quite a bit of it, and I have read some very important parts of that investigation by the Barstow Police Department and listened to a CD - - or a DVD with an interview between Detective Libby and Griego and [defendant].
"After reviewing what I saw out of the police report, what I observed and listened to in the tape recording, I related to the defendant what I've learned about it. I've advised him that I haven't had a chance to investigate the case. I've advised him that I haven't read every word of the police report. [¶] . . . [¶]
"And I did not twist his arm. I just told him what the offer was. I read to him the report and told him what was on his - - good for him and what was not good for him, and he made the decision that he wants to plead guilty today to take advantage of the 25-to-life prison term where at least he has a silver hope of getting out of prison during his life."
Hence, the record reveals that Attorney Leich's performance did not fall below an objective standard of reasonableness. Instead, the record shows that Attorney Leich fully disclosed his concern about the time limitations in this case, and explained the extent of work in this case--including advice about the benefits and consequences of a guilty plea. The record shows that Leich rendered effective counsel to defendant, and that defendant's plea was made voluntarily, knowingly, and intelligently. Defendant's post-plea regret because he is considered a "snitch" by fellow inmates fails to establish good cause for the withdrawal of his plea.
Defendant, however, in his reply brief, states that "[d]espite reviewing [defendant's] videotaped interview, the statements of Celina Sanchez, and other portions of the approximately 1000 pages of discovery, [defendant's] attorney could only tell him what was good for him and what was not good for him in the police reports and advise him about his potential maximum sentence if he went to trial and was convicted." Therefore, trial counsel's "acts and omissions fell below the standard of reasonably competent representation." In support of his contention, defendant cites In re Williams (1969) 1 Cal.3d 168, 176-178; In re Vargas (2000) 83 Cal.App.4th 1125, 1139-1140; People v. Maguire (1998) 67 Cal.App.4th 1022, 1028-1032; and People v. McCary (1985) 166 Cal.App.3d 1, 9-12. These cases, however, are inapplicable.
In In re Williams, supra, 1 Cal.3d at pages 176-178, the court found that trial counsel rendered ineffective assistance because he failed to research the applicable law, which resulted in a guilty plea to an offense which the evidence demonstrated that defendant had not committed. Similarly, in People v. Maguire, supra, 67 Cal.App.4th at pages 1028-1032, the facts in the case did not support the charges filed by the prosecution. Therefore, trial counsel's failure to research the law resulted in ineffective assistance. People v. McCary, supra, 166 Cal.App.3d at pages 9-12, is similar. Unlike the three cases relied upon by defendant, in this case, there is no evidence that defendant pled guilty to an offense for which there is no evidence. Instead, the evidence demonstrates that defendant regrets pleading guilty because of the negative impact of his testimony against co-defendant Pswatai.
In In re Vargas, supra, 83 Cal.App.4th at pages 1139-1140, counsel advised defendant about his maximum potential sentence, without discussing the strengths and weaknesses of the case. Here, even defendant admits his counsel told him "what was good for him and what was not good for him in the police reports and advise[d] him about his potential maximum sentence if he went to trial and was convicted." The evidence showed that defense counsel spent hours with defendant, advising him on the plea, instead of the few minutes as argued by defendant.
Based on our review of the record, we find that defendant's trial counsel rendered effective assistance of counsel.
Therefore, the trial court's denial of defendant's motion to withdraw his guilty plea is affirmed.
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS