Trial Court: Santa Clara County Superior Court Trial Judge: Hon. John T. Ball Super. Ct. No. C9886818)
The opinion of the court was delivered by: Elia, J.
CERTIFIED FOR PUBLICATION
This case returns to us on appeal after circulating through both state and federal courts beginning in 1999. In his current appeal, defendant Michael Briseno contends that he should be permitted to withdraw his guilty plea to 32 counts of child molestation because the plea was involuntary. We are without jurisdiction to entertain his appeal due to the absence of a certificate of probable cause.
Defendant has also filed a petition for a writ of habeas corpus, which this court ordered to be considered with the appeal. In that petition he asserts ineffective assistance of counsel based on trial counsel's failure to (1) explain why he should expect a long prison sentence, (2) advise him of the mandatory minimum term he would have to serve and (3) withdraw from representing him in the motion to withdraw the plea. We have decided that matter by separate order.
In June 1999 defendant was charged by information with a total of 33 counts, including lewd conduct with a child under 14, in violation of Penal Code section 288, subdivision (a); attempted lewd conduct; and oral copulation with a minor, in violation of Penal Code section 288a, subdivision (b)(2).*fn1 These acts were variously alleged to have occurred between 1995 and March 31, 1998, with one exception occurring in 1991. Altogether the charged crimes were alleged to have been committed against five boys who were between 10 and 13 years old. A sixth alleged victim, the subject of count 33, was defendant's own five-year-old son, but that count was dismissed at sentencing.
The original charges against defendant were filed in May 1998. In September of that year, defendant's retained attorney, Thomas Salciccia, expressed his view that defendant was incompetent, within the meaning of section 1368, and the court suspended the proceedings for an evaluation of defendant's mental condition. The following month the evaluating psychologist submitted a report describing defendant's pathology, notably pedophilia, but finding defendant "able to understand the nature of the proceedings [and] to very adequately assist counsel in the conduct of a defense in a rational manner." The trial court found insufficient evidence of incompetency.
Defense counsel again raised the question of defendant's mental competency on September 28, 1999, asserting "an impairment of reasoning and an emotional disturbance and a mental retardation accompanied by an erratic and irrational behavior." Salciccia supported his view by pointing to letters defendant had written, not only to him but also to the prosecutor.*fn2 The court, however, found insufficient facts to justify suspending the proceedings for another competency examination. The court then declared a recess to allow defendant and his attorney an opportunity to discuss the matter.
The proceedings resumed with a hearing at which defendant changed his plea. The court first explained in detail the role and function of a jury and the factual and legal considerations involved in the judge's sentencing decision. The court followed that lengthy discourse with an invitation to defendant to ask any questions he had. Defendant responded that he did not have many questions; he only wanted to point out that he had turned himself in to avoid, not cause, more problems. The "last thing I want to do," he added, "is have a jury trial and I don't want to have the jury trial, all right, and I'm not going to have a jury." The court emphasized that it had no intention of urging defendant to do something against his will, and it encouraged defendant to listen to the advice of his attorney. The court did add that "people are never, I repeat, never punished for going to trial. No one is ever going to say you're going to be punished if you exercise your constitutional right to go to trial. However, defendants frequently are, and the system always recognizes that people can be, in effect, rewarded for not going to trial." Defendant said he understood. The court continued, "Remorse, contrition, all of those factors are clearly recognized in the law and to be frank with you, by District Attorneys, when they see an effort to avoid the trauma of trial, and there obviously are no commitments from the District Attorney, she is not in a position to do so." The court finally stated that it wanted to be "absolutely certain" that defendant's change of plea was to be entered "freely, voluntarily, and not under any kind of threat, pressure of promise or force of any kind whatsoever" from the prosecutor, defense counsel, or the court. The court again invited questions from defendant, who had none.
The prosecutor then moved to dismiss count 33. The court indicated that it would do so at the time of sentencing, and it proceeded to hear defendant's change of plea. The court first explained the maximum penalty defendant could receive as a consequence of his plea: a determinate sentence of 10 years and eight months, followed by a consecutive sentence of 360 years to life; restitution to the victims; payment of a restitution fine and various fees and costs; submission of blood and saliva specimens; avoidance of contact with all victims; and registration as a sex offender. Each offense, the court noted, was a strike offense, and the court explained that consequence as well as a mandatory sentence enhancement for any future serious or violent felony. Defendant then assured the court that he was changing his plea "freely and voluntarily," that he had had enough time to discuss with his attorney the elements of the crimes and defenses, and that he was satisfied with the representation he had received from his attorney.
The court proceeded to obtain defendant's waiver of his constitutional jury trial rights. Defendant then pleaded guilty to 25 counts of lewd conduct, five counts of attempted lewd conduct, and two counts of oral copulation with a minor. He also admitted, as to the lewd conduct counts, that they had involved more than one victim and therefore qualified for treatment under section 667.61.
Not long after his change of plea, defendant reconsidered that decision. In early January 2000 he wrote to the judge who had conducted the proceedings. Defendant explained that he had pleaded guilty only because he wanted the "unfair hearsay charge" that his five-year-old son was the victim in count 33 to be "dropped." The San Jose Mercury News, however, had published a story mentioning this charge, and now he wanted to "pull [his] plea" and find an attorney willing to "fight for [him] with all his heart." At a hearing in February he again asserted his wish to "pull" his plea. Initially he wanted to discharge Salciccia as his attorney and represent himself; but by the end of the hearing he was willing to have Salciccia make the requisite motion.
Salciccia continued to declare his belief that defendant was incompetent. Although he felt that the evidence was "deadly against" defendant, Salciccia accepted a continuance to look into the possible merit of a motion to withdraw the plea. In March 2000 defense counsel filed the motion, asserting the incompetence of defendant and violation of the plea bargain through the release of information about count 33 to the press. The prosecutor opposed the motion, noting that no promises had been made that the alleged victims' ages, which were part of the public record, would ...