P. v. Kordahl

Filed 8/14/06 P. v. Kordahl CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Judith Champagne, Judge. Reversed and remanded with directions.

Law Offices of Barry K. Rothman, Barry K. Rothman, Gordon Zuiderweg, and Ronald G. Kim, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

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Clayton Charles Kordahl appeals from the judgment entered after his no contest plea to one count of theft or embezzlement from his elderly, senile aunt. (Pen. Code, § 368, subd. (d).) Kordahl contends that when the trial court took his plea, it erred by not conducting a proper inquiry concerning whether a lack of prescribed anti-depressant medications made that plea involuntary. He also contends the court erred by denying his postjudgment motion to withdraw his plea on the grounds of duress, and that his lawyer provided ineffective assistance by not following up on his complaints about the lack of medication. Because the trial court did not conduct a proper inquiry when the plea was taken, we reverse.

FACTS AND PROCEDURAL HISTORY

On September 29, 2004, Clayton Charles Kordahl pleaded no contest to one count of stealing money from his aunt, Mary Lutz. (Pen. Code, § 368, subd. (d).)^[1] Evidence from Kordahl's preliminary hearing showed that he lived with Lutz from 1995 until October 2001. Sometime during that period, he became Lutz's primary caretaker. According to an examining psychiatrist, Lutz suffered from dementia and, in 2000 and 2001, would have had difficulty understanding her finances. Lutz's other nephew, James Benoit, testified that Lutz wrote a $250,000 check for the benefit of Kordahl, along with other checks for many more thousands of dollars, and that Lutz's credit card statements reflected travel and car repair expenses that she would have never incurred. According to Benoit, Kordahl obtained more than 80 percent of Lutz's liquid assets. The manager of the City National Bank branch where Lutz kept her accounts testified that Lutz would sometimes come to the bank with Kordahl to discuss putting Kordahl on her accounts. When Kordahl was not present, however, Lutz said she did not want to add Kordahl to her accounts. Lutz died in February 2002 at the age of 91.

At the plea hearing on September 29, 2004, the prosecutor told the court that in exchange for Kordahl's plea, he would get three years probation, plus time served. Sentencing would be put over to give Kordahl a chance to make restitution of $100,000. If Kordahl did so, the prosecution would dismiss the case. The restitution amount was reduced from nearly $300,000 due to a combination of exonerating and mitigating evidence: that Benoit apparently also stole from Lutz, and that Kordahl was owed money for his services as Lutz's caretaker. The prosecutor took Kordahl's waiver of his rights and explained the terms of the proposed plea agreement. When the prosecutor asked if anybody had threatened Kordahl in order to obtain his plea, Kordahl said no. When asked if he was pleading freely and voluntarily because he believed it was in his best interests to do so, Kordahl said, â€