P. v. Fox

Filed 9/5/07 P. v. Fox CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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. James W. Hollman, Judge.

James H. Dippery, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant, Michelle Denise Fox, pled no contest to felony trespassing with a threat (Pen. Code., 601) and misdemeanor brandishing a weapon (Pen. Code, 417).^[1] On August 10, 2006, the court denied Foxs motion to withdraw her plea and placed her on felony probation on condition that she serve 270 days local time. On appeal, Fox contends the court abused its discretion when it denied her motion to withdraw her plea. We will affirm.

FACTS

On December 25, 2005, at approximately 9:22 p.m., police officers responded to a disturbance in room No. 61 of a Tulare apartment complex and spoke with Marie Holguin and James Garrett. After several minutes, the officers saw Fox on the balcony of her apartment. One officer then climbed onto the balcony and arrested Fox who appeared to be extremely intoxicated and exhibited the following symptoms of intoxication: she had difficulty standing, her speech was slurred, her eyes were watery and bloodshot, and she had a very strong odor of alcohol. Fox told the officer that there was an unloaded gun in her apartment. The officers searched the apartment and found a loaded .22-caliber handgun behind a mattress in Foxs bedroom. At the police station, Fox was too intoxicated to understand her Miranda^[2]rights. She stated several times that she did not know what an officer was telling her and that she was not in any condition to understand.

Holguin told the officers that Fox had kicked her apartment door open and brandished a small revolver at her and Garrett. Garrett told the officers that, after Fox entered the apartment, she waved the handgun from side to side before pointing it at him and pulling the trigger at least twice. However, the gun did not discharge because it was either unloaded or missing bullets.

On December 27, 2005, a Tulare police officer took a report from Fox regarding identity theft. Fox told the officer that, although she did not have an American Express account, American Express had advised her on an unspecified date of some unusual activity on an American Express card issued in her name as the primary cardholder. A person named Marie Holguin was also named on the account and had a card issued to her. The telephone number provided by American Express for the second person matched the phone number of the Marie Holguin who lived in room No. 61 of Foxs apartment complex. Fox further stated that, around November 12, 2005, Holguin had been to her apartment and after Holguin left Fox noticed that four credit cards were missing from her purse.

On March 28, 2006, the district attorney filed a complaint charging Fox with assault with a firearm (Pen. Code, 245, subd. (a)(2)) and alleging a personal use of a firearm enhancement (Pen. Code, 12022.5, subd. (a)(1)).

On May 8, 2006, Fox entered her plea in this matter after the prosecutor amended count one to felony trespassing with a threat, added a misdemeanor count of brandishing a weapon (count 2) and dismissed the arming enhancement. In exchange for her plea, the court indicated that it would grant her felony probation on condition that she serve no more than a year in local custody.

On June 21, 2006, after Fox requested to withdraw her plea, the court appointed conflict counsel to represent her in potentially filing a motion to withdraw plea.

On August 9, 2006, conflict counsel filed a motion to withdraw plea on Foxs behalf. In an attached declaration, Fox stated that she was emotionally distraught and mentally unstable when she entered her plea. According to Fox, the alleged victims had stolen from her. But when she entered her plea, she did not have any proof of their crimes and felt nobody would believe her. However, subsequent to her plea, law enforcement had implicated the alleged victims in crimes of moral turpitude involving numerous thefts of which Fox was one of the victims. Fox further alleged that she had a miscommunication with her counsel and was not given an opportunity to advise him of the details of her case or of possible defenses, or to request further investigation including listening to the 911 tapes.

At a hearing on the motion on August 10, 2006, defense counsel noted that the alleged victims were in custody for numerous thefts including thefts from Fox. The prosecutor argued that there was no basis for withdrawing the motion and that Foxs current belief that she could win her case was an insufficient basis. Subsequently, after defense counsel argued that Fox was emotionally distraught and unstable when she entered her plea, the court stated, The plea transcript portrays otherwise, and the Court finds that she was not under a burden, and the Court is going to deny your motion to withdraw plea.

DISCUSSION

Fox contends that she could have used the information regarding the alleged victims involvement in thefts to attack their credibility. Additionally, asserts Fox, the use of a false name by one alleged victim made it impossible to obtain discovery on the victim to challenge his credibility at trial. Fox further contends that this information would have potentially reduced her custody exposure and lent support to her defense. Thus, according to Fox, the court abused its discretion when it denied her motion because she showed good cause for granting it. We will reject these contentions.

A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. [Citations.] Section 1018 provides that . . . On 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. Good cause must be shown for such a withdrawal, based on clear and convincing evidence. [Citation.] [Citations.] To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.] Other factors overcoming defendants free judgment include inadvertence, fraud or duress. [Citations.] [Citation.] The burden is on the defendant to present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty. [Citation.]

When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] On appeal, the trial courts decision will be upheld unless there is a clear showing of abuse of discretion. [Citations.] [Citation.] Guilty 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, 145-146.)

Felony convictions as well as misdemeanor and felony conduct reflecting moral turpitude are admissible, subject to Evidence Code section 352, to impeach a witness. (Evid. Code, 788; People v. Ayala (2000) 23 Cal.4th 225, 273.) However, mere arrests are usually inadmissible as proof of guilt or for impeachment (see People v. Anderson (1978) 20 Cal.3d 647, 650-651) and Fox did not make an offer of proof explaining what evidence besides the fact of the alleged victims arrest she intended to introduce to prove fraudulent conduct by Holguin and Garrett. Similarly, although Fox claims that the use of a false name prevented her from investigating Garrett for evidence to impeach him, she did not make an offer of proof explaining what, if any efforts, she made to investigate Garrett that were thwarted by his use of a false name.

Additionally, we note that when Fox entered her plea she was already aware that Holguin may have used her identity to obtain an American Express card. And, notwithstanding her contrary assertions, she should have been able to corroborate her testimony to this effect with records from American Express or testimony from the companys employees that showed that the Marie Holguin who applied for a credit card in Holguins and Foxs names had the same phone number as the Marie Holguin who lived in room No. 61.^[3] Moreover the court could reasonably find that the ability to impeach the complaining witnesses credibility would not have been a big factor in her decision to plead guilty because: 1) Fox would have had little credibility before a jury because of her extreme intoxication at the time of her arrest; and 2) any impeachment value in the alleged fraudulent conduct by Holguin and Garrett would have been substantially offset by the motive that the thefts from Fox would have provided for Foxs conduct the night she was arrested. This is particularly true because the victims version of events was corroborated by the damage to Holguins apartment door and the discovery of a handgun in Foxs room.

Fox contends that this case is similar to People v. Ramirez (2006) 141 Cal.App.4th 1501 (Ramirez), and that Ramirez requires that the judgment here be reversed. We find Ramirez inapposite. In Ramirez, a Black man and a Hispanic man took a Mini Cooper and a purse from the driver at gunpoint with the Hispanic man driving off in the Mini Cooper. Later that evening, a Hispanic man approached a man on the street and robbed him at gunpoint. At 10:45 p.m., police saw the Mini Cooper speeding and pursued it. When the car crashed, the officers arrested the defendant after he exited through the passengers door.

Subsequently, the defendant pled no contest to armed robbery and evading arrest, in exchange for the prosecutor dropping a count of carjacking, armed carjacking, and unlawful driving of a vehicle. Soon after entering his plea, the defendant learned a supplemental police report existed that contained exculpatory evidence provided by two witnesses. One witness, his neighbor, told police that he was in the parking lot behind his home when Vladimir Guzman drove up to the defendants apartment in the stolen Mini Cooper and asked the defendant if he wanted to go for a ride. Although the defendant was hesitant to get in the car, he did so after being told that it was not stolen. Forty-five minutes later, Guzman returned alone with scratches on his body and a handgun tucked in his waistband. He told the witness that he and the defendant had been in a car chase with police and that he had escaped. Guzman also told the witness that he and another man had taken the car from two people at a motel. The witness subsequently reported that he bought property from Guzman that was taken from the victims of the carjacking and from the victim of another robbery. The supplemental report also stated that another witness reported seeing a man later identified as Guzman come out of the bushes after the Mini Cooper crashed.

The defendant appealed after the trial court denied his motion to withdraw his plea upon the discovery of the supplemental police report. In holding the trial court abused its discretion in denying the defendants motion to withdraw his plea, the Ramirez court stated:

Here, appellant has established by clear and convincing evidence that the prosecutions withholding of favorable evidence affected his judgment in entering his plea, rendering the waiver of rights involuntary. The fact that the new information did not uncontrovertibly exonerate appellant is beside the point. The supplemental report identified new defense witnesses, potentially reduced appellants custody exposure, and provided possible defenses to several charges, thereby casting the case against him in an entirely different light. Appellant suffered prejudice by his ignorance because earlier discovery of the report would have affected his decision to enter a plea before the preliminary hearing. (Ramirez, supra, 141 Cal.App.4th at pp. 1507-1508.)

Here, the arrest of Holguin and Garrett on fraud charges did not provide powerful exculpatory evidence as did the newly discovered evidence in Ramirez it did not cast Foxs case in an entirely different light, it did not identify new witnesses, and it did not provide her with any possible defenses to the original assault with a firearm charge. Further, Holguins and Garretts involvement in fraudulent conduct was not completely unknown to Fox when she entered her plea because she was already aware that Holguin had apparently used her personal information to fraudulently obtain an American Express credit card. And, as noted earlier, she could have used records from American Express and/or testimony from the companys employees to corroborate her suspicions. Finally, unlike the defendant in Ramirez, Foxs effectiveness as a witness was severely diminished by her extreme intoxication. Accordingly, we conclude that Ramirez is not controlling and that the court did not abuse its discretion when it denied her motion to withdraw her plea.

DISPOSITION

The judgment is affirmed.

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

^[1]All further statutory references are to the Penal Code, unless otherwise indicated.

^[2]Mirandav. Arizona (1966) 384 U.S. 436.

^[3]Presumably some investigation of this matter with American Express could have led to the discovery of additional evidence implicating victim Holguin in the fraudulent credit card transactions, e.g., evidence showing that both Marie Holguins had the same address or that both Holguins signatures matched.