California Court of Appeals, Fourth District, Third Division
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, No. 12HM1036 Brett London, Judge.
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Frank Ospino, Public Defender, Mark S. Brown, Assistant Public Defender, and Scott Van Camp, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Tony Rackauckas, District Attorney, and Matthew Lockhart, Deputy District Attorney, for Real Party in Interest.
In this writ proceeding, we examine whether the People of the State of California, real party in interest, should be allowed to rescind a misdemeanor plea agreement under which they agreed not to pursue certain felony charges against petitioner Joseph Semir Mutwakil Amin. The People contend the agreement is voidable due to mistake of fact and for other reasons, but we disagree and grant petitioner’s request to enforce the deal.
FACTUAL AND PROCEDURAL BACKGROUND
On July 17, 2012, petitioner was at an Albertson’s grocery store in Irvine. He snuck up behind a woman in the frozen food aisle, reached under her dress
with his cell phone and started videotaping. When the woman asked petitioner what he was doing, he said he was sorry and quickly departed. Although petitioner fled the scene, the store manager called the police and provided responding Irvine Police Officer T. Goodbrand with a surveillance DVD of the incident.
Upon watching the DVD, Goodbrand immediately recognized petitioner from a prior incident involving a woman who had been groped at a park near petitioner’s residence. Goodbrand went to petitioner’s residence and asked him about the Albertson’s incident. Petitioner admitted using his cell phone to videotape underneath the victim’s dress. He also admitted doing the same thing to various other women at the store about six times in the previous three months. He voluntarily relinquished his cell phone to Goodbrand, who booked it into evidence and prepared a report containing the above information.
Goodbrand’s report was the primary police report in the case, but it was not the only report. On July 18 and August 1, Police Officers J. McDonald and A. Guo prepared supplemental reports detailing their work on the case. Their reports are not germane to the issues before us, but on August 9, Police Officer S. Crawford prepared a four-page supplemental report that has become important in how this case has played out.
On the first page of his report, Crawford stated he was familiar with petitioner and knew he “was listed as a subject of interest in previous investigations that pertained to the inappropriate touching of females.” Crawford summarized those investigations as follows: 1) In case No. 11-09255, a suspect inappropriately touched a female and then fled into petitioner’s residence. However, the suspect could not be identified; 2) in case No. 11-14086, petitioner was identified as a person of interest in the “inappropriate touching of two 12-year-old females, ” but the girls were unable to identify petitioner from a photo lineup they were shown; and 3) in an unreported incident Crawford learned about, petitioner allegedly touched a female inappropriately while she was exercising at a community gym. There is no information in Crawford’s report as to whether any of these investigations were active or ongoing at the time he prepared the report.
Crawford also reported that he had reviewed the results of the forensic examination that was conducted on petitioner’s cell phone. The examination not only revealed the video of the above-described incident that occurred at Albertson’s on July 17, 2012, but several other episodes in which petitioner surreptitiously videotaped women and girls at public locations. Crawford observed, “The focus of these videos... appears to [be] the buttocks area of females, and on at least two occasions, [petitioner] was able to place his cell phone under a female’s skirt/dress.”
Based on this information, the District Attorney of Orange County charged petitioner with two misdemeanor offenses stemming from the Albertson’s incident. Count 1 alleged petitioner secretly videotaped underneath the victim’s clothing for the purpose of sexual gratification, and count 2 alleged petitioner unlawfully prowled in Albertson’s for the purpose of committing that offense. (Pen. Code, § 647, subds. (j)(2), (h).)
Petitioner retained Brian Gurwitz, a former senior deputy district attorney, to represent him on the case. On September 11, 2012, Gurwitz personally requested discovery from deputy district attorney Tina Patel while she was handling misdemeanor arraignments in the superior court. At that time, Patel called for petitioner’s case file and read a factual summary of the misdemeanor charges that was prepared by the filing deputy, Carolyn Carlisle-Raines. Patel then provided Gurwitz with Officer Goodbrand’s police report, which as described above, actually contained information from several different officers. However, Patel did not read the police report at that time.
The following week, at petitioner’s arraignment, Patel and Gurwitz agreed that petitioner would plead guilty to the charges in exchange for three years’ probation. Although the crimes did not require mandatory sex offender registration, petitioner agreed to lifetime registration and to stay away from all Albertson’s stores. He also agreed to complete 52 counseling sessions within two years of his plea. In return, Patel expressly agreed petitioner’s plea would “resolve all incidents referenced in [the] police report, charged & uncharged.” These terms and conditions were memorialized in the parties’ plea agreement, and after petitioner waived his right to trial and pleaded guilty, the Honorable Brett London sentenced him in accordance with the agreement.
That was not the end of the story, however. Not long after petitioner was sentenced, Patel received a call from the Irvine police informing her they were now able to “make [a] case” against petitioner in case No. 11-14086, which involved the two 12-year-old girls who were allegedly molested. Therefore, the district attorney filed a two-count felony complaint against petitioner on October 9, 2012. The complaint alleged petitioner committed a forcible lewd act against two girls under the age of 14, in violation of Penal Code section 288, subdivision (b)(1).
A week later, Gurwitz filed a nonstatutory motion to dismiss the complaint. Because case No. 11-14086 was referenced in the police report in petitioner’s misdemeanor case, Gurwitz argued it was resolved by virtue of petitioner’s plea in that case. In its opposition papers, the prosecution argued the plea was unenforceable and subject to rescission because it was based on fraud and
mistake of fact. The prosecution also claimed it would violate public policy to read the plea agreement so as to preclude prosecution of the felony child molestation charges.
On October 22, 2012, Judge Derek G. Johnson conducted an evidentiary hearing on the matter. Gurwitz testified that on the day petitioner pled guilty, he and Patel talked about the terms of the plea agreement. In light of the counseling and registration requirements petitioner was willing to accept, Gurwitz asked Patel if she would agree not to prosecute petitioner for any of the “other shit” that was mentioned in the police report. When Patel said yes, Gurwitz added the term about the plea resolving all incidents that were referenced in the police report. He then showed Patel what he wrote, she said it was fine, and that was the end of their discussion. According to Gurwitz, at no point did he state or imply to Patel that the other incidents referenced in the police report were limited to surreptitious videotaping. Nor did Patel ask him if that was the case.
On cross-examination, the prosecution probed about why Gurwitz did not volunteer that information to Patel. (The questioning was designed to test Gurwitz’s credibility regarding the circumstances under which the plea was made.) Gurwitz testified he did not talk to Patel about the police report because he presumed she was familiar with the report and knew it referenced alleged incidents of felony child molestation by petitioner. It just never occurred to him that a prosecutor would ever agree not to prosecute a defendant for conduct referenced in a police report without reading the report beforehand. Therefore, even though he and Patel did not specifically discuss the fact the police report referenced felony child molestation, he understood their plea agreement to foreclose future prosecution for that offense, as well as all of the other alleged crimes referenced in the report.
That was not Patel’s understanding of the agreement. In fact, her testimony as to what transpired on the day of petitioner’s plea differed considerably from Gurwitz’s version of events. Explaining how things played out, Patel testified she had not read the police report before she and Gurwitz started discussing the terms of the plea agreement. And the factual summary prepared by filing deputy Carlisle-Raines did not mention any crimes other than the subject misdemeanor charges. So when Gurwitz brought up the term about not prosecuting petitioner for all other incidents referenced in the police report, she asked Gurwitz what he was talking about. According to Patel, Gurwitz told her the incidents involved “similar stuff.” She asked Gurwitz if that meant the same “up the skirt stuff” involved in the present misdemeanor case, and Gurwitz told her “yes, similar stuff.”
Knowing Gurwitz was a former prosecutor, Patel trusted him to a certain extent. However, she felt she had a professional responsibility to independently verify his representations. Therefore, she decided to look through her case file, which included Officer Goodbrand’s report. Patel testified that, even though her misdemeanor arraignment calendar was quite busy that day, and she was the only prosecutor on hand, she had “as much time as [she] wanted” to review Goodbrand’s report “to determine... what... other similar stuff” Gurwitz was talking about. In fact, she admitted she could have read the entire report if she wanted to, and she did not have to rely on what Gurwitz told her. Patel also admitted she knew Goodbrand’s police report included supplemental reports from other officers and that she understood the term “police report” in the plea agreement to include not only Goodbrand’s report, but all of those supplemental reports as well.
Yet, when Patel reviewed the police report, she did not read it in any great detail. Instead, she just “perused” it to see if it was consistent with Gurwitz’s representation or whether it contained information about any other alleged crimes that were perhaps more serious in nature. When she got to the part in Crawford’s report about the police finding videos of multiple up-skirt incidents on petitioner’s cell phone, she was satisfied with the plea agreement and the particular terms that Gurwitz added.
It is undisputed the reference to those particular videos appears in Officer Crawford’s report right after his factual description of the subject felony child molestation incident. Although the date and case No. of that incident are in bold type, Patel testified she simply did not notice Crawford’s factual description of that incident, even though she was reviewing the report for the very purpose of determining whether it contained any information of that sort. Consequently, when she signed the plea agreement, she thought it only shielded petitioner from future prosecution for misdemeanor up-skirt picture taking, not felony child molestation. Had she known the police report referred to such felony conduct, she never would have agreed to the plea bargain.
Based on this testimony, Judge Johnson made several findings. First, there was no fraud or duress on Gurwitz’s part. (In other words, the judge impliedly rejected Patel’s testimony that Gurwitz misled her about the contents of the police report.) Second, the term “police report” in the plea agreement was unambiguous because the parties clearly understood that term to include all four of the police reports that were prepared in the case. Third,
although Patel was negligent for failing to read the police report more carefully, she was not reckless, nor did she operate outside the boundaries of good faith and fair dealing. And fourth, it would be unconscionable to construe the plea bargain to preclude the prosecution of the felony child molestation charges. The latter two findings were key to the court’s ultimate ruling that the plea agreement was subject to rescission due to mistake of fact. The court simply did not believe the People should have to bear the risk for the misunderstanding that resulted from Patel’s negligent behavior. It thus denied petitioner’s motion to dismiss the complaint.
Following the preliminary hearing, petitioner renewed his request to dismiss in the trial court before David A. Hoffer. Judge Hoffer agreed with Judge Johnson that the plea agreement was voidable due to mistake of fact. Therefore, he too ...