P. v. Garcia

Filed 6/20/06 P. v. Garcia CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed.

Defendant Juan Carlos Garcia pleaded guilty to one count of first degree robbery (Pen. Code,^[1] § 211), and admitted that he personally used a firearm during the offense (§ 12022.5, subd. (a)). As part of that plea agreement, his brother and codefendant Henry Tilapa^[2] (Henry)^[3] pleaded guilty to one count of second degree robbery. Under the plea agreement, the parties stipulated that Garcia would serve a term of eight years in state prison. No term was stipulated for Henry, and he was not promised probation as part of the joint plea. He was referred to the probation department for a presentence investigation and report.

On the date set for sentencing, Garcia brought a motion to withdraw his plea, asserting that that his plea was coerced and not freely given. The court, after hearing testimony from witnesses and reviewing the motion papers submitted by the parties, denied the motion. Per the stipulation in the plea agreement, the court sentenced Garcia to a term of eight years in state prison, consisting of (1) the middle term of four years on the robbery count (§§ 211, 212.5, subd. (a)) and an additional four years for his personal use of a gun (§ 12022.5, subd. (a)).

On appeal, Garcia asserts that the court abused its discretion in denying his motion to withdraw his plea because (1) it was the result of undue pressure from his brother and codefendant Henry; and (2) the package deal plea bargain offered to Henry and him was unduly coercive. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND^[4]

On July 30, 2004, at approximately 12:00 p.m., Garcia's aunt, Anabelia T. (Anabelia), left her home to go to the store. Anabelia's children, Jacqueline C. and Luis C., remained at the house to watch a movie. Three neighbor children, Brandon M., Kevin M. and Edgar M. were also present.

Anabelia called home from the store about 20 minutes later and spoke to Jacqueline. Jacqueline, who sounded excited and scared, told Anabelia that Garcia and Henry, both nephews of Anabelia, had come to the house and taken the television. Anabelia immediately went home and confirmed that the television was gone. Anabelia then called the police. Anabelia also discovered that her cell phone and $100 were missing from the home. Anabelia called her cell phone number and Garcia answered. Anabelia asked where he was, but Garcia refused to answer and Anabelia hung up the phone.

San Diego Police Officer Michael Nigro responded to the scene and took Jacqueline's statement. Jacqueline told him Garcia and Henry came to the house while Anabelia was away and asked to come in. Jacqueline did not want to let them in because she had been told not to let them in the house if they came by. Garcia moved toward the window and started "moving around things" when Jacqueline did not let them in. Henry then told Jacqueline he needed to use the bathroom, and Jacqueline unlocked the door. Henry came into the house, followed by Garcia.

Henry went to the back of the house. Garcia lifted up his shirt and revealed a gun with a brown handle.^[5] Garcia told Jacqueline and the other children to be quiet and put his finger to his lips. Garcia then drew his finger across his throat.

Henry came out of the back of the house and took Anabelia's cell phone. Garcia and Henry took the television, told the children to be quiet, and left.

That evening, officers located Garcia and Henry at a residence in the South Bay. They recovered the television from inside a car parked at the residence. A .22-caliber black handgun with a brown grip was recovered from a shoebox between the sofa and the wall in the living room. Several .22-caliber bullets were also in the box. One of Garcia's fingerprints and two of Henry's fingerprints were lifted from the box. Officers recovered $161 in cash from Garcia's pockets. A 12-pack of beer taken from Anabelia's home was found on the kitchen table.

DISCUSSION

A. Background

On the date set for Garcia's sentencing, his attorney John Lee informed the court that Garcia wanted to withdraw his guilty plea. The court asked for the basis for the request. Counsel informed the court that Garcia believed that he would prevail at trial because certain witnesses were prepared to recant their statements previously made to police and in court. Lee also informed the court that at the time of the plea Garcia felt "overwhelmed with fear" as to his potential exposure should he not prevail at trial, which was in the range of 20 years.

The matter was sent back to the Honorable David J. Danielsen, the judge who heard Garcia's guilty plea, to determine whether new counsel needed to be appointed to assist Garcia in his plea withdrawal motion.

In May 2005 Garcia retained new counsel, Pamela Lacher, and Lee was relieved as counsel. Lacher filed a motion to withdraw the guilty plea, asserting that Garcia's plea was coerced as a result of the "package nature" of the plea bargain offered, because defense counsel was ineffective, and because the prosecutor engaged in misconduct by ignoring exonerating evidence.

In August 2005 Garcia's motion to withdraw his plea came on for hearing.

1. Henry's testimony

Henry testified that he and Garcia had been to court a couple of times to negotiate the disposition of their case. Garcia told him "all the time" that he wanted to go to trial. Henry told Garcia that if he pleaded guilty, he (Henry) would go home. On the date set for trial, Henry cried and begged Garcia to take the deal. Henry reminded Garcia that he had a wife and son to take care of and Garcia did not have a family to worry about. After several hours, Garcia contacted Lee and told him he wanted to plead guilty. Henry believed that Garcia's sudden decision to plead guilty was because Garcia felt sorry for him.

2. Garcia's testimony

Garcia asserted that he took the deal because he felt bad for Henry. He wanted Henry to go home to his kids, and Henry begged him to plead guilty. Garcia would not have taken the deal if it was not for Henry; he wanted to go to trial "from the beginning." When he saw Henry crying, he decided he could not take him to trial.

Garcia testified that, "I'm innocent of most of what they're accusing me of." However, he also testified that he pleaded guilty because Henry "did less" than he did in perpetrating the crime.

Garcia also claimed that Lee pressured him to accept the plea, even though he told Lee that he did not have a gun and did not take the money. Lee told him that he had no chance of winning at trial and would serve a lot more time in prison. Lee also told him that Anabelia would go to jail if she changed her testimony to benefit him.

Garcia felt pressured by Lee, his family, and particularly by Henry. The emotional pressure exerted by Henry finally got to him. He accepted the plea because he wanted Henry to be able to "go home to his kids."

Garcia testified that Lee should have talked with his sister-in-law, Ana Ladesma, and his sister Kelly. Ana would have told Lee that Garcia did not have a gun and Kelly told Anabelia to call the police because she was mad at him. Garcia claimed that years ago he stole money from Anabelia's boyfriend, and Anabelia was using this incident to get back at him. Garcia also claimed that Kelly gave him the money that was found on him when he was arrested. Garcia admitted that he took the television, but denied ownership of the gun.

Garcia admitted that he had a conversation with Henry in the back of a patrol car shortly after their arrest that was recorded by police. In that conversation, after Henry said they were in trouble, he responded, "No, they don't have anything on us." Henry said: "No. We're in trouble. They found the gun." Garcia replied, "Don't worry about it. We'll take care of it in court."

3. Lee's testimony

Lee testified that he understood that Henry was a candidate for probation consideration. Garcia appeared to be the "greater player" in the case and "if a verdict had been returned on one or more of the counts, the evidence was such that [Garcia] would probably be deemed more [culpable] of the two individuals and likely to receive a more severe sentence."

Lee believed that at the time of the preliminary hearing, Jacqueline's statement had changed. Prior to the preliminary hearing, Lee's investigator interviewed Jacqueline and she recanted part of the statement she had made to police. Lee testified that had the matter gone to trial, he expected Jacqueline to testify that there was no gun. This was brought out at the preliminary hearing and Lee believed that it was possible the change in testimony was of some assistance to the defense.

Lee testified that he was concerned about the tape-recorded conversation between Garcia and Henry. He noted that Garcia and Henry "talked actively about the gun." He also stated that "it was a very reasonable interpretation from the gist of the conversation that the gun was at the victim's house and was probably shown." Because of Garcia's statements on the tape, he "would have come out looking distinctly unsympathetic, to put it bluntly."

Lee also explained to Garcia the difficulties with the witnesses changing their stories. Lee discussed with Garcia the possibility of witnesses being charged with perjury. Lee discussed with Garcia the maximum exposure he faced and the possible impact of a guilty verdict on Henry. Lee also testified that he was advised by the prosecutor that he was going to file an amended information with a gang enhancement allegation that carried an additional mandatory 10-year term if found true.

On the day of trial Lee expected that the trial would proceed, but Garcia suddenly told him he wanted to change his plea. Garcia was "very matter of fact" and was not "particularly distraught or anything of that sort."

4. Anabelia's testimony

Anabelia testified that she told Lee that she wanted to testify on behalf of Garcia. However, Lee told her that she would get the jail time intended for Garcia if she changed her testimony. Anabelia told defense investigators and the prosecutor that Jacqueline lied about the events that took place because she was angry with Garcia. Anabelia testified that Jacqueline lied "a lot." Anabelia admitted that both she and Jacqueline had lied about the incident. She also stated that she and Jacqueline had exaggerated the amount of money that had been taken from the home. They initially reported $300 had been stolen, but it was only $100.

5. Court's ruling

The court found that there was no coercion that would have caused Garcia to plead guilty and denied his motion to withdraw his plea. The court noted that Henry had been offered probation in the early stages of the case, and Garcia was offered a more serious and significant prison sentence, but Garcia "resisted that temptation to help his brother out and guarantee him probation." The court also noted that at the time of Garcia's guilty plea, the court informed Henry that it was not promising him that he would receive probation. The court was not persuaded by Garcia's testimony and found his choice to plead guilty free, voluntary and intelligent:

"[The Court:] . . . [Garcia] has failed to convince me, that his plea was anything other than knowing, voluntary, and intelligent by virtue of the claimed coercion that he felt by whatever sentiment he had to save his brother or help his brother. I think those are free, voluntary, and intelligent choices. They do not rise to the level of coercion that would overcome his will such that he was forced in any way to change his plea other than for reasons that he felt were appropriate and logical. [¶] In fact, if there is any coercion in this process at all, it is the prospect of going to trial, losing, and facing a much more substantial possible penalty, and that is the normal inherent pressure that one feels when one is facing such charge."

The court also found that Lee handled the matter intelligently, made reasonable judgments, and gave Garcia reasonable advice. The court did not believe that Lee put any pressure on Garcia to take the plea bargain.

The court also questioned the credibility of the witnesses who testified on behalf of Garcia, particularly Henry. The court found that "this [was] a classic buyer's remorse and [Garcia was] attempting to justify a version of this story that they were forced to do something that they didn't want to do."

B. Standard of Review

The withdrawal of a guilty plea rests "within the sound discretion of the trial court" and may not be disturbed on appeal unless the trial court has abused its discretion. (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796.) Abuse of discretion occurs where it is clearly shown (ibid.) the trial court has exercised its discretion in an "arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice." (People v. Shaw (1998) 64 Cal.App.4th 492, 496.) The trial court has not abused its discretion if there is a reasonable inference to be drawn from the record that supports the order. (People v. Harvey (1984) 151 Cal.App.3d 660, 667.) "Where two conflicting inferences may be drawn from the evidence it is [the appellate court's] duty to adopt the one supporting the challenged order." (People v. Savin (1940) 37 Cal.App.2d 105, 108.) "Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged." (People v. Hunt (1985) 174 Cal.App.3d 95, 103.)

C. Analysis

Section 1018 provides: "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. . . . This section shall be liberally construed to effect these objects and to promote justice."

In order to have a plea of not guilty set aside, the defendant must show, by clear and convincing evidence, good cause for withdrawing the plea. (§ 1018; People v. Cruz (1974) 12 Cal.3d 562, 566.) Good cause may consist of "'"mistake, ignorance, inadvertence or any factor that overcame the defendant's exercise of a free judgment . . . ."'" (People v. Brotherton (1966) 239 Cal.App.2d 195, 200.) For a plea to be valid, the defendant must have waived his or her rights voluntarily, knowingly, and intelligently. (Brady v. U.S. (1970) 397 U.S. 742, 748.) Although section 1018 must be liberally construed; "[a] plea may not be withdrawn simply because the defendant has changed his [or her] mind." (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)

Here, the court found Garcia did not provide clear and convincing evidence of good cause to withdraw his guilty plea. The court did not abuse its discretion in making this finding.

Garcia asserts the package plea agreement was coercive because of the offer of leniency to Henry and Henry's crying and begging him to accept the offer. However, a defendant's concern for a codefendant's or third party's well-being, even that of a family member, is not inherently coercive such that it makes a defendant incapable of thinking clearly and voluntarily entering a guilty plea. Garcia's "claim that his family pressured him into the plea is not enough to constitute duress. Nothing in the record indicates he was under any more or less pressure than every other defendant faced with serious felony charges and the offer of a plea bargain." (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)

The evidence in this case against Garcia was strong, and he faced a minimum of 13 years if convicted. He was offered an eight-year term in exchange for pleading guilty. As the court found, the only coercion in the case was "the prospect of going to trial, losing, and facing a much more substantial penalty, and that is the normal inherent pressure that one feels when one is facing such charge."

Finally, the court found the testimony of Garcia's counsel that Garcia was not unduly coerced to be credible, and the contrary testimony of Garcia and Henry unpersuasive. We will not reweigh these credibility determinations made by the court. (People v. Johnson (1980) 26 Cal.3d 557, 576.)

DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McINTYRE, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Apartment Manager Attorneys.

^[1] All further statutory references are to the Penal Code.

^[2] Although the codefendant was charged and sentenced as Enrique Talapa, he testified at the plea hearing that his true name is Henry Tilapa. We will refer to him by his true name.

^[3] We refer to certain family members by their first names for the sake of clarity only. No disrespect is intended.

^[4] Because the partiers stipulated that the evidence presented at the preliminary hearing would provide the factual basis for Garcia's plea, we take the statement of facts from that hearing.

^[5] Jacqueline later told Officer Nigro that she had been mistaken when she said she saw Garcia with a gun.