IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
August 26, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MELVIN LEE WILSON, DEFENDANT AND APPELLANT.
Super. Ct. No. CM031638
The opinion of the court was delivered by: Hoch ,j.
P. v. Wilson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Melvin Lee Wilson was charged with stalking (Pen. Code, §
646.9 (count 1)),*fn1 dissuading a witness (§ 136.1, subd. (c)(3)
(count (countsubd. ((count
), disobeying a domestic relations order (§ 273.6, subd. (a)
), two counts of corporal injury to a cohabitant (§ 273.5,
(counts 4 & 7)), preparing false documentary evidence (§ 134
), and assault by means likely to produce great bodily injury
(§ 245, subd. (a)(1) (count 6)), along with prior strike, prior
serious felony conviction, and prior prison term allegations.
Having successfully moved to represent himself, defendant pled no contest to count 7 and admitted the strike, with an indicated sentence of six years in prison. All other charges were dismissed. The court denied defendant's motions to withdraw the plea and strike the prior serious felony conviction, and imposed the indicated six-year prison term.
Having obtained a certificate of probable cause, defendant appeals. He contends the trial court should have granted his motion to withdraw the plea. We affirm.
On April 14, 2009, at about 11:49 p.m., Oroville Police officers responded to a report of a man and woman arguing in the front yard of a house. Defendant said he and his fianceee Sandra Wever had been evicted from the house, but defendant made arrangements so that he could stay there until May 1. He told the officers Wever came over to retrieve her luggage and they got into a fight when she arranged for her ex-husband to pick her up.
Wever told the officers she had lived with defendant but they were breaking up. An argument erupted when she arrived at the house to get her belongings. Defendant tried to grab her purse and her neck, but Wever pushed defendant away and left the house. Defendant then followed Wever, pushed her against a post railing in the yard, and started to strangle her. Wever started to lose consciousness until she managed to push defendant away and release his grip. Defendant then grabbed Wever's wallet from her purse and ran into the house.
Officers observed redness on Wever's neck and noticed defendant's left index finger was bleeding. Defendant said he accidentally slammed the finger into a door during the argument with Wever.
On May 9, 2009, defendant approached Wever in his van as she was walking to a liquor store. Defendant told her to sign a paper exonerating him. Wever refused and defendant slapped her, so she called her sister Mary David. David arrived to find Wever in defendant's van, which she entered. Wever and David signed the paper as ordered by defendant, fearing what he would do if they refused.
Defendant drove Wever and David to a friend's apartment. Once in the apartment, defendant slapped Wever three to four times in the head. Wever tried to escape the apartment by climbing out of the window, but defendant threw her on the bed, held her down, and started to strangle her. Defendant told Wever he was going to kill her and she would not testify. Wever asked defendant to give her five minutes to recuperate. When defendant let go of her, Wever kicked him off of her and fled through an open window.
On May 13, 2009, defendant was arrested for restraining order violations and placed in custody at Butte County jail.
On May 21, 2009, defendant was transferred from the Butte County jail to Oroville Hospital after complaining of chest pain. Defendant called Wever from the hospital and told her he had faked a heart attack. Later, defendant told Wever there was no guard at his hospital door. He was released on his own recognizance the following day because of his medical problems.
On May 26, 2009, defendant walked to the rear of Wever's house and yelled, "You won't testify against me." Simultaneously, another man entered Wever's house through the front door. The man told Wever he was there to help resolve the problem; Wever thought he was with defendant and pushed the man out of her house. Defendant and the man fled when three visitors showed up to Wever's house.
Defendant contends the trial court committed an abuse of discretion in denying his motion to withdraw his plea. He argues the evidence shows the plea was not voluntary because his comprehension was compromised by his serious medical condition and his medications. He further claims the plea was based on the incorrect advice of counsel and the People did not provide critical exculpatory evidence until after the plea.
At defendant's request, the trial court held a settlement conference on April 22, 2010. Defendant told the court an attorney, Rochelle Forbis, was advising him pro bono.
The deputy district attorney informed the trial court that the People's offer to defendant was to plead no contest to count 7, corporal injury to a cohabitant (§ 273.5) and admit a strike, with an indicated sentence of six years. Defendant replied he was innocent but was willing to take a plea because of his declining health. Defendant told the court he would agree to six years, but at 50 percent rather than 80 percent.*fn2 The deputy district attorney replied defendant was facing significantly greater exposure from the remaining charged offenses.
Defendant told the court anything over five or seven years was an effective death sentence to him in light of his congestive heart failure. The court stated defendant's health went up and down over the course of the case, but he now seemed in good health. Noting defendant found something wrong with every prior offer, the deputy district attorney informed the court this was the People's final offer.
After defendant reiterated his desire for "six with half," the court called a recess. Following the recess, defendant "[r]eluctantly" accepted the offer and entered the no contest plea under People v. West (1970) 3 Cal.3d 595 and North Carolina v. Alford (1970) 400 U.S. 25 [27 L.Ed.2d 162]. During the plea colloquy, the court asked defendant, "Are you presently under the influence of alcohol or any drug, narcotic, or prescription medication?" Defendant answered, "I'm on medication, your Honor, but nothing affecting my ability." The court asked defendant if he was "thinking with a clear head today," to which defendant replied, "Yes, your honor."
Motions to Withdraw Plea
Defendant filed a motion to withdraw the plea (and later a supplement to his motion to withdraw the plea) and motion for appointment of counsel.*fn3 After counsel was appointed, counsel filed a new motion to withdraw the plea. The trial court held a hearing over the course of two days.
Defendant testified that he did not know there was going to be a settlement conference until he reached the courtroom. He understood the People's offer, six years at 80 percent, but he was adamant that he would not accept the offer. Forbis advised him during the recess that he had six months to withdraw the plea if he did not like it. According to defendant, when he questioned this advice, Forbis replied, "Yes, don't you trust me."
Defendant said he was taking numerous medications which can affect his mental state at any time, "from narcotics and other things, and heart pills." Defendant also took a tranquilizer and three Nyquils before the settlement conference.
Defendant said he suffered a severe angina attack during the recess and took two or three nitroglycerin pills. He felt a little light-headed before he took the pills; defendant did not remember much after taking the nitroglycerin other than it eased his chest pains.
After the plea, defense investigator Larry Ott obtained tapes of interviews with two witnesses, Eric Sakay and Mary Lou Sierra, which would have exculpated defendant from two of the three assault charges. Defendant said he would not have entered the plea if he had this information before the settlement conference.
Ott testified that during the preliminary hearing, district attorney's investigator William Proffitt told him about interviews with Sakay and Sierra. Ott asked for copies of the interviews; Proffitt said he would forward the interviews when they were typed up. Although the preliminary hearing was in March, Ott did not get the tapes of the interviews until May, because the prosecution mistakenly thought it had provided the written report of the interviews earlier. Ott listened to the interview tapes and shared their contents with defendant.
Ott was in court with defendant at the April 22 settlement conference. He tried to tell defendant it was too early to settle because they did not have the Sakay and Sierra interviews, but he could not get defendant's attention. According to Ott, defendant's demeanor changed after the recess -- he was not responsive and appeared to be dazed. Ott overheard Forbis tell defendant he had six months to withdraw the plea if he did not like the sentence.
Proffitt interviewed Sakay and Sierra the day before the preliminary hearing, and told Ott about the interviews during the lunch break on the first day of the preliminary hearing. Proffitt told Ott he would provide the audio recordings and the report as soon as he typed up the report. He briefly recounted the interviews to Ott -- Sakay and Sierra said they stored furniture in a house they lived in; defendant did not live there, but occasionally spent the night to get away from his girlfriend. Proffitt told Ott that Sakay and Sierra saw defendant and Wever verbally fight many times, but had no memory of a specific fight taking place at their house. Defendant was sitting right next to Ott when Proffitt told him about the interviews.
After the lunch break, Ott told Proffitt he drove to the address where Proffitt located Sakay and Sierra, but they were not there. He tried the phone number Proffitt gave him, but the number was disconnected or inoperable. Defendant was not present during this conversation.
At some point between the preliminary hearing and the April 22 settlement conference, Proffitt mistakenly told the deputy district attorney that he gave a copy of the written report of the Sakay and Sierra interviews to Ott. Instead, Proffitt gave Ott a report which listed the Sakay and Sierra interviews on its face plate but contained a different interview.
Forbis testified that she was not appointed to represent defendant but, at defendant's request, agreed to help with the settlement conference. The People's original offer was eight years, which defendant did not like, preferring four to six years at half time. Forbis then received another offer from the People, six years at 80 percent time, which she communicated to defendant two days before he entered the plea.
Defendant was concerned he would be sentenced to eight years rather than six if he accepted the People's offer. Forbis told defendant that if he was sentenced to eight years he would have six months to file a motion to withdraw the plea. Ott was not present during this discussion, which took place in the holding cell.
Forbis thought defendant appeared normal but slightly agitated when he entered the no contest plea. Defendant was normally a little volatile and was concerned about how the plea was going. He appeared to be in much better health on the day he entered his plea than on other occasions.
On the day of the plea, defendant, Forbis, and Ott discussed the weakness of the People's case regarding Sakay and Sierra. Forbis told defendant he could file a Romero*fn4 motion to strike the prior strike and get half-time credit. During discussions on trial strategy, defendant indicated one option would be to have some sort of health issue in court, which would bring proceedings to a standstill if things were not going his way.
The hearing on defendant's motion to withdraw his plea was continued during Proffitt's testimony when defendant was taken to the emergency room for medical treatment after complaining of dizziness and shortness of breath.
The trial court issued a detailed ruling on the motion to withdraw the plea. The trial court found defendant was not credible, noting his testimony that he was surprised by the settlement conference was contradicted by the fact that he requested the settlement conference. Defendant's claim that he was unaware of the Sakay and Sierra information was contradicted by evidence that he and Ott knew about the interviews and were given a summary of their contents. Defendant's testimony that he did not remember much about the plea was inconsistent with his responses to the court during the colloquy. Most significant to the trial court was defendant's lack of credibility regarding his medical condition. While he was hospitalized several times during the case, defendant told Forbis that one of his strategies was to have health issues in court to bring things to a standstill if matters were not going his way.
The trial court found defendant was articulate and engaged in the discussion during the settlement discussion. He appeared to fully understand the offer and its consequences. Defendant was likewise engaged and articulate when he made the plea, and told the court he was thinking clearly.
After carefully observing defendant throughout the proceedings, the court concluded his plea was knowing and voluntary, he was aware of the consequences of the act, and he had plenty of time to consider the offer. While the People failed to provide defendant with the audio recordings and written report of the Sakay and Sierra interviews, the defense investigator was orally advised of the interviews in defendant's presence. In addition, defendant had the exculpatory nature of their testimony and Ott's analysis of the weaknesses in the People's case before he entered the plea.
The court then denied defendant's motion.
Section 1018 provides in relevant part that on the application of the defendant at any time before judgment, the court may, "for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. . . . This section shall be liberally construed to effect these objects and to promote justice." For present purposes, a plea of no contest is considered the same as a plea of guilty. (§ 1016, [¶] 3.)
Notwithstanding the statutory directive of liberal interpretation, case law implementing section 1018 establishes a stringent standard for overturning a guilty plea. Courts have stated that "'pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.' [Citation.]" (People v. Weaver (2004) 118 Cal.App.4th 131, 146.) And a defendant seeking to withdraw his plea has the "burden to produce evidence of good cause by clear and convincing evidence. [Citation.]" (People v. Wharton (1991) 53 Cal.3d 522, 585.) To demonstrate good cause, a defendant must show that his plea was not the product of his free judgment. "Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.]" (People v. Cruz (1974) 12 Cal.3d 562, 566.)
Appellate review of a trial court's denial of a motion to withdraw a guilty plea is equally stringent. As the Supreme Court explained, a "claim of an erroneous denial of a motion to withdraw a plea is reviewed for abuse of discretion." (People v. Holmes (2004) 32 Cal.4th 432, 442-443.) "'An appellate court will not disturb the denial of a motion unless the abuse is clearly demonstrated.' [Citation.]" (People v. Wharton, supra, 53 Cal.3d at p. 585.) In determining whether there has been an abuse of discretion, "a reviewing court must adopt the trial court's factual findings if substantial evidence supports them. [Citation.]" (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
Defendant's argument focuses on his allegedly impaired judgment when he entered the plea. However, the trial court found the primary evidence submitted in support of this contention -- defendant's testimony -- was not credible. Defendant attempts to overcome this finding by noting he was taking many medications, and Ott testified that defendant was not responsive and dazed after the recess. This evidence does not show the trial court's ruling lacks sufficient evidence. Forbis's testimony, the plea colloquy where defendant said he was thinking clearly, and the court's own observations of defendant during the plea constitute substantial evidence supporting the court's ruling.
Defendant argues in passing that Forbis gave defendant bad legal advice by telling him he could withdraw the plea within six months if he did not like the result. His argument is based on Ott's testimony, which is contradicted by Forbis's testimony that she told defendant he had six months to file a motion to withdraw the plea if the trial court gave defendant a greater sentence than the indicated six-year term. The trial court found Forbis's testimony more credible, and we will not substitute our judgment for the court's finding on appeal.
Defendant similarly provides scant argument in support of his final contention, that the People committed a Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215]) violation by failing to provide the recordings and report of the Sakay and Sierra interviews before he entered the plea. The count to which defendant pled no contest, count 7, addressed the April 14, 2009, assault, while the Sakay and Sierra interviews were relevant only to the incident on May 9, 2009. Assuming that withholding material on another count can invalidate a no contest plea (see United States v. Avellino (2nd Cir. 1998) 136 F.3d 249, 255; Sanchez v. United States (9th Cir. 1995) 50 F.3d 1448, 1453-1454; but see United States v. Ruiz (2002) 536 U.S. 622, 633 [153 L.Ed.2d 586, 597] [no duty to disclose material impeachment evidence to defendant prior to defendant entering a plea agreement with the government]; Matthew v. Johnson (5th Cir. 2000) 201 F.3d 353, 361-362 [Brady inapplicable to guilty pleas]; In re Miranda (2008) 43 Cal.4th 541, 582, fn. 6 [applicability of Brady to pleas an open question in California, noting split of authority]), the failure to provide the tapes and written summaries of the Sakay and Sierra interviews did not establish good cause to withdraw the plea. The trial court found defendant was informed of the interviews and their contents before he entered his plea. Defendant was aware of the weaknesses in the case against him. Based on the evidence, the trial court did not abuse its discretion when it denied defendant's motion to withdraw the plea.
The judgment is affirmed.
We concur: RAYE , P.J. BUTZ ,J.