P. v. Cortez

Filed 8/29/06 P. v. Cortez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge.

Phillip J. Cline, District Attorney, and Todd Hayward, Deputy District Attorney, for Plaintiff and Appellant.

Central California Appellate Program, George Bond, Executive Director, and Elizabeth Campbell, Attorney, for Defendant and Respondent.

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Respondent Martha Cortez was charged by a single-count criminal complaint with contributing to the delinquency of a minor (Pen. Code, § 272, subd. (a)(1)), a misdemeanor. Cortez pled not guilty and the matter was set for trial. Prior to the scheduled trial date, the People filed an amended single-count complaint charging Cortez with selling marijuana to a minor (Health & Saf. Code, § 11361, subd. (a)), a felony. Thereafter, Cortez moved to dismiss the amended complaint on grounds of vindictive prosecution. The court granted the motion, and the People have appealed. We will reverse.

BACKGROUND

On April 18, 2005,^[1] Cortez was charged with a misdemeanor violation of Penal Code section 273, subdivision (a)(1). A police report attached to the complaint stated that Natalie B., a fourth-grade student, was found in possession of a small quantity of marijuana and told police she purchased it from Cortez. On May 24, Cortez entered a plea of not guilty. On June 13, at a pretrial conference, two future court dates were set: August 15 and August 18, apparently for a jury trial confirmation proceeding and jury trial, respectively.

In a declaration filed in opposition to Cortez’s motion to dismiss, Robert K. Dempsie of the Tulare County District Attorney’s office stated as follows. He is a “Supervising District Attorney . . . .” On August 12, he “reviewed [Cortez’s case] for the first time and decided to amend the complaint to a felony charge of [violating Health and Safety Code section] 11361.”

On August 12, a “1ST AMENDED FELONY COMPLAINT” was filed, charging Cortez with violating Health and Safety Code section 11361, a felony, by selling marijuana to a minor.

In a declaration filed in support of Cortez’s motion to dismiss, Tulare County Deputy Public Defender Nathan Leedy stated as follows. On August 15, at a “Jury Trial Confirmation” proceeding, Deputy District Attorney Mikki Gness informed the court that the amended complaint had been filed. Thereafter Deputy District Attorney Brian Soo-Hoo informed Leedy the People would dismiss the felony count in exchange for Cortez “entering a change of plea to the original [misdemeanor] charge.” Cortez rejected this offer, and the matter was set for preliminary hearing.

On September 9, Cortez filed a notice of motion to dismiss the matter on grounds of vindictive prosecution.

In granting Cortez’s motion the court stated: “The defendant was originally charged with a misdemeanor. . . . [T]here were negotiations. The matter was set for trial . . . and three days before the . . . confirmation, the District Attorney amended the . . . misdemeanor complaint to charge a felony . . . . There is no evidence that there were any new facts presented to the prosecutor to . . . influence the change in the prosecutorial decision.

[T]here is an inherent give and take in the pretrial proceedings and . . . there is a strong societal interest in not foreclosing the prosecutor from modifying the course of the prosecution in appropriate circumstances. [S]uch appropriate circumstances are essentially when the prosecutor uncovers additional information that suggests a further basis for prosecution. We don’t have that in this case. That’s not the situation.

The other allowable change in charging direction can occur when a prosecutor comes to realize the information the state already possesses has a broader significance than first acknowledged.

[T]he inference I draw, and I think it’s the only inference I can draw, is that a different prosecutor looked at the case and decided that it should not proceed as a misdemeanor, but it should proceed as a felony wherein that decision was preceded by a defendant’s assertion of her right to go to trial.

I’m persuaded the law does not allow that. The . . . prosecuting entity showed no interest in prosecuting this defendant for a felony prior to the time she exercised her right to go to trial on a misdemeanor.

I’m not finding there is any actual vindictiveness. . . .

I just want to emphasize that I am not finding that there is actual vindictiveness. . . . [I]s the defendant being punished in effect for exercising her right [to go to trial]? [T]hat’s the crux of the issue, it appears to me. . . .

There was no reason presented to the court for the change in prosecutorial direction, other than a different prosecutor looking at it, deciding that it should be prosecuted as a felony when there was . . . nothing at all different insofar as factual analysis. It’s not a product of a give and take of a pretrial negotiation process. It’s a direct product of this defendant’s exercise of her right to seek a jury trial on the charges, and based upon this analysis, the motion is granted. The matter’s dismissed.”

DISCUSSION

The People contend the court erred in granting Cortez’s motion to dismiss.

“To punish a person because he has done what the law plainly allows him to do is a due process violation ‘of the most basic sort.’ [Citation.] In a series of cases . . . the [United States Supreme] Court has recognized this basic--and itself uncontroversial--principle. For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right.” (United States v. Goodwin (1982) 457 U.S. 368, 372 [102 S.Ct. 2485].)

Because “[m]otives are complex and difficult to prove,” the Supreme Court, “in certain cases in which action detrimental to the defendant has been taken after the exercise of a legal right, . . . has found it necessary to ‘presume’ an improper motive. Given the severity of such a presumption, however--which may operate in the absence of any proof of an improper vindictive motive and thus may block a legitimate response to criminal conduct--the Court has done so only in cases in which a reasonable likelihood of vindictiveness exists.” (United States v. Goodwin, supra, 457 U.S. at p. 373.)

The prohibition against vindictive prosecutorial action had its genesis in cases in which the state took post conviction action in response to a defendant’s exercise of statutory rights. (North Carolina v. Pearce (1969) 395 U.S. 711, 725 [89 S.Ct. 2072] (Pearce); Blackledge v. Perry (1974) 417 U.S. 21, 28-29 [94 S.Ct. 2098] (Perry).) The Goodwin court noted that certain factors militate against a finding of a reasonable likelihood of vindictiveness where, as in the instant case, the claimed vindictive prosecutorial action occurred prior to trial: “There is good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance. At this stage of the proceedings, the prosecutor’s assessment of the proper extent of prosecution may not have crystallized.” (United States v. Goodwin, supra, 457 U.S. at p. 381.) “In contrast, once a trial begins--and certainly by the time a conviction has been obtained--it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.” (Ibid.)

In Goodwin, the defendant initiated plea negotiations regarding several misdemeanor offenses. He chose to plead not guilty and demanded a trial by jury in federal district court. The United States Attorney then sought and obtained an indictment charging the defendant with one felony and three related counts. In holding that the presumption of vindictiveness did not arise, the court stated: “[T]he timing of the prosecutor’s action in this case suggests that a presumption of vindictiveness is not warranted. A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct. . . . [T]he initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution.” (United States v. Goodwin, supra, 457 U.S. at pp. 381-382.)

“[In a case in which] the defendant demonstrates facts sufficient to give rise to a presumption of vindictiveness, the burden shifts to the People to rebut the presumption.” (People v. Johnson (1991) 233 Cal.App.3d 425, 447.) The presumption “is overcome only when the prosecution can demonstrate ‘that (1) the increase in charge was justified by some objective change in circumstances or in the state of the evidence which legitimately influenced the charging process and (2) that the new information could not reasonably have been discovered at the time the prosecution exercised its discretion to bring the original charge.’ “ (People v. Bracey (1994) 21 Cal.App.4th 1532, 1545.)

Where the presumption of vindictiveness does not apply, and the claimed vindictive prosecutorial action is, as in the instant case, a charging decision, the defense has the burden of proving by “objective evidence ‘that the prosecutor’s charging decision was motivated by a desire to punish [the defendant] for doing something the law plainly allowed him to do.’ “ (People v. Bracey, supra, 21 Cal.App.4th at p. 1549; accord, People v. Michaels (2002) 28 Cal.4th 486, 515.)

As in Goodwin, as Cortez does not dispute, the facts here are not sufficient to give rise to a presumption of vindictiveness. Therefore, Cortez bore the burden of showing that the prosecutor’s decision to charge her with a felony rather than the misdemeanor charged in the original complaint was motivated by a desire to punish her for undertaking something the law allowed her to do. Cortez contends she met this burden. We disagree.

Preliminarily, we note that the court apparently applied the presumption of vindictiveness and placed the burden on the People to show its absence. The court noted the absence of evidence that new facts were presented to the prosecutor after appellant’s plea or that the prosecutor came to realize facts already in the state’s possession had a broader significance, and found that dismissal was required simply because the prosecutor decided that a case originally charged as a misdemeanor would proceed as a felony and “that decision was proceeded by a defendant’s assertion of a right to go to trial.”

Cortez bases her claim that she met her burden on these same factors. However, the absence of evidence that prosecutorial action was not vindictive does not constitute an affirmative showing, sufficient to satisfy a criminal defendant’s burden of proof, that the prosecutor’s charging decision was unconstitutionally vindictive.

We find instructive Bordenkircher v. Hayes (1978) 434 U.S. 357 [98 S.Ct. 663] (Hayes). In that case, as the Supreme Court explained in Goodwin, the high court “for the first time considered an allegation of vindictiveness . . . in a pretrial setting.” (United States v. Goodwin, supra, 457 U.S. at p. 377.) “[T]he Court [in Hayes] held that the Due Process Clause of the Fourteenth Amendment did not prohibit a prosecutor from carrying out a threat, made during plea negotiations, to bring additional charges against an accused who refused to plead guilty to the offense with which he was originally charged. The prosecutor in that case had explicitly told the defendant that if he did not plead guilty and ‘save the court the inconvenience and necessity of a trial’ he would return to the grand jury to obtain an additional charge that would significantly increase the defendant’s potential punishment. The defendant refused to plead guilty and the prosecutor obtained the indictment. It was not disputed that the additional charge was justified by the evidence, that the prosecutor was in possession of this evidence at the time the original indictment was obtained, and that the prosecutor sought the additional charge because of the accused’s refusal to plead guilty to the original charge.” (Ibid.) In finding no due process violation the high court distinguished the “unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right” in Pearce and Perry from the “ ‘very different’ “ situation presented by the “give-and-take negotiation common in plea bargaining . . . .” (Hayes, supra, 434 U.S. at p. 362.) The prosecutor’s threat to add new charges as an attempt to persuade a defendant to plead rather than go to trial was a permissible part of the “ ‘give-and-take’ “ of plea negotiation and did not violate due process because it contained “no . . . element of punishment.” (United States v. Goodwin, supra, 457 U.S. at p. 362.)

Cortez suggests Hayes is inapposite here because prior to the filing of the amended complaint “the element of give-and-take [was] missing . . . .” We disagree. In rejecting a similar argument, the Goodwin court stated: “Respondent argues that the Court’s refusal to presume vindictiveness in [Hayes] is not controlling in this case because he had refused to plead guilty and the plea negotiation process was over. Respondent’s argument is not strengthened, however, by the fact that the additional charge in this case was brought outside the context of plea negotiation. The fact that the increased charge in [Hayes] was brought after a ‘warning’ made during plea negotiation was the principal basis for the defendant’s claim that the charge was an unjustified response to his legal right to stand trial. [Citation.] Respondent’s argument in this case has no such predicate; unlike the defendant in [Hayes], the only evidence respondent is able to marshal in support of his allegation of vindictiveness is that the additional charge was brought at a point in time after his exercise of a protected legal right.” (United States v. Goodwin, supra, 457 U.S. at p. 382, fn. 15.)

Here too, a criminal defendant’s claim of vindictiveness rests on the timing of the prosecution’s decision to charge an offense more serious than that originally charged. It is, of course, possible the prosecutor’s motive was to punish Cortez for exercising her right to go to trial. But insofar as the record reveals, it is just as likely that the supervising district attorney realized the facts would support a more serious charge and that he hoped to pressure Cortez into entering a plea of guilty. In any event, the timing of the prosecutor’s charging decision was insufficient to either raise a presumption of vindictiveness (United States v. Goodwin, supra, 457 U.S. 368) or satisfy Cortez’s burden of showing vindictiveness in the absence of that presumption (Hayes, supra, 434 U.S. 357).

DISPOSITION

The judgment (order of dismissal) is reversed.

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^* Before Vartabedian, Acting P.J., Gomes, J., and Dawson, J.

^[1] Further references to dates of events are to dates in 2005.