P. v. McNabb

Filed 4/17/07 P. v. McNabb CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Calaveras)

----

Defendant Glynn Edward McNabb pled guilty to two counts of forcibly raping his minor daughter in exchange for a stipulated 16-year prison sentence and dismissal of the remaining charges with a Harvey^[1]waiver. He was sentenced to 16 years in prison, consisting of the maximum term of eight years for each offense, to be served consecutively.

On appeal, after having obtained a certificate of probable cause, defendant claims the trial court abused its discretion in denying his motion to withdraw his plea because: (1) the court accepted his plea without (a) advising him of the privilege against self-incrimination or (b) asking him to admit, or the attorneys to stipulate to, a factual basis for the plea; and (2) he was under great duress when he entered his plea. He argues that [t]aken together, these circumstances demonstrate [his] guilty plea was not free and voluntary. We conclude that the circumstances described by defendant, whether taken individually or together, fail to establish the trial court abused its discretion in denying his motion to withdraw his plea and, therefore, affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I

The Charges

Defendant was charged by information with 20 felony counts, including three counts of forcible rape, three counts of penetration with a foreign object, two counts of battery with serious bodily injury, and two counts of assault with a deadly weapon. He initially pled not guilty to all charges.

At his preliminary hearing, defendants daughter K. R. testified to the following: She was born in 1987. She lived with defendant from the ages of 11 to 18. During that time, defendant repeatedly physically abused her. Among other things, he sliced her skin above her lower rib with a paring knife, broke her leg by kicking her with his boots, stabbed her in the knee with a crowbar, stabbed her in the leg with a screwdriver, threw a pair of pliers at her, and struck her in the face. She has scars on her head, leg, and chest as a result of defendants abuse.

In addition to physically abusing K. R., defendant also sexually abused her. When K. R. was 15, defendant rubbed her vagina and breasts, put his finger inside her vagina, and then had sexual intercourse with her. When she attempted to squirm away, he pulled her closer. She did not resist because she believed that if she did defendant would hurt her as he had in the past. Thereafter, defendant had sex with K. R. approximately two or three times a week until she was 18, excluding a one-year period when she did not live with him. Defendant also made K. R. orally copulate him on a less frequent basis -- about 60 times. K. R. cried almost every time defendant sexually abused her. Defendant usually responded by telling her to shut up and that you did this, you will never leave me, and you are mine.

II

The Change Of Plea

At the change of plea hearing, the People summarized the plea offer as follows: [D]efendant will plead to [two counts of forcible rape], give a Harveywaiver to the balance of the Information, this would be for a stipulated sentence of 16 years state prison, which is arrived at by applying the maximum term on both of those counts consecutively . . . . Defendant was advised that as a result of his plea, he would have to serve 85 percent of the custody time in the Department of Corrections and would be required to register as a sex offender. Defendant indicated he understood the offer and had sufficient time to discuss it and the consequences of his plea with his counsel, Steve Rechter.

When the court told defendant that his maximum exposure was about 76 years, defendant asked: Now if I lose at one, does that do all of them? When the court said it did not understand defendants question, defendant clarified: If they catch me on an assault, does that make me guilty on everything. The court responded: Its up to the jury. Defendant then said to Rechter: You said if I am guilty on one, I am guilty on all. Rechter responded: No, I did not. I said to you if the jury finds you guilty on one there is a great likelihood they would find you guilty on all of them, because its similar conduct. The court interjected: The question here is whether you want to risk going to trial with that exposure as against taking the offer that the People have made on two counts and the consequences he spelled out. [] If you take the two counts, those are the results, stipulating to 16 years, the [sex offender] registration, you have got to serve 85 percent, et cetera, those are mandatory consequences, okay? Defendant responded: All right. I can understand that.

Rechter then explained that defendant would enter his plea under People versus West.^[[2]] He is entering this plea, not because he feels he is guilty, its simply being made to take advantage of the plea, the offer. He is facing a substantial amount of time exposure of 76 years. He wants to take advantage of that.

When the court asked defendant how he would plead to the first count of forcible rape, defendant indicated he was pleading guilty [u]nder People versus West, that do-hickey. He entered a similar plea with respect to the second count of forcible rape.

The court then asked defendant if he was satisfied that there would be a substantial likelihood that he could be convicted of all charges, and defendant responded: Yes, when my lawyer has pretty much gave up [sic] on me, yes. The following exchange ensued:

THE COURT: [S]o the question goes back to, are you accepting the plea of 16 years after discussing with your Counsel that there is a substantial likelihood that you could be convicted of all of the counts?

THE DEFENDANT: Yeah.

THE COURT: And are you pleading to take advantage of that plea bargain0, i.e. this is a certain 16 years?

THE DEFENDANT: This is the only question?

THE COURT: As opposed to the possibility of the maximum exposure of 72 [sic] years.

THE DEFENDANT: That is the only reason I am taking this deal, Your Honor.

THE COURT: Well, you have to admit that there is a substantial likelihood you believe there would be a conviction of all of the charges, and I believe you said yes, after discussing with your lawyer you were convinced that was a possibility?

THE DEFENDANT: When you had erased the key evidence off of the table that my attorney so called had, then yes, I didnt have no choice. I aint got no choice.^[3]

Defendant then was advised of his right to a jury trial, his right to confront and cross-examine witnesses, and his right to present a defense; he indicated he understood those rights; and waived them. He was also told that the burden was on the People to prove his guilt on each of the charges. He responded that without any defense, I have got no choice but to take these offers. He also remarked: You know, its something to plead guilty to something you didnt do.

The trial court found defendants guilty plea was knowing and intelligent, and on the Peoples motion dismissed the remaining charges.

III

Defendants Motion To Withdraw His Plea

At the sentencing hearing, defendant indicated he wished to withdraw his plea, and the trial court appointed new counsel to represent him in bringing such a motion. Defendants new counsel filed a motion to withdraw defendants plea on the grounds, among others, that defendant: (1) was not guilty of the crimes charged and had defenses thereto; (2) was coerced to enter a West plea by his counsel; (3) did not understand the significance of a West plea as it was not explained to him; and (4) was not advised of the privilege against self-incrimination.

The court held an evidentiary hearing on the motion. Defendant testified that on the morning he changed his plea, Rechter spent time trying to convince him to accept the Peoples offer, telling him 16 years or 76 and that he could not win. The subject of defendant testifying on his own behalf was not discussed.

Rechter testified that he and defendant discussed the change of plea repeatedly. Defendant did not want to use the word guilty in court, so Rechter explained the significance of a West plea. Rechter believed defendant understood what he was entering. Rechter denied attempting to coerce defendant to change his plea. Rather, he gave defendant his assessment of the case and told defendant the decision was defendants alone. He also denied telling defendant he had no defenses. While defendant had a defense, Rechter advised him that there was a substantial likelihood he would not win based on the courts rulings on the in limine motions.

The trial court denied defendants motion to withdraw his plea, finding the plea was voluntary and intelligent despite the absence of an explicit admonition on the privilege against self[-]incrimination.

DISCUSSION

To prevail on his motion to withdraw his plea, defendant was required to establish by clear and convincing evidence that he was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment, such as inadvertence, fraud or duress. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208; see also Pen. Code, 1018.) [A] plea may not be withdrawn simply because the defendant has changed his mind. (Huricks, at p. 1208, quoting People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)

The trial courts determination whether to permit a defendant to withdraw a guilty plea is discretionary, and its ruling will not be disturbed on appeal absent a showing of abuse of discretion. (People v. Huricks, supra, 32 Cal.App.4th at p. 1208.)

I

The Plea Was Voluntary And Intelligent

Despite Omissions In Taking The Plea

A

Defendant Knew He Had A Right Not To Plead Guilty

Defendant contends, and the People concede, that the trial court erred in failing to expressly advise defendant and obtain a waiver of the privilege against self-incrimination. (People v. Howard (1992) 1 Cal.4th 1132, 1175, 1178.) However, as the People note, the error does not require reversal if the record affirmatively demonstrate[s] that the plea was voluntary and intelligent under the totality of the circumstances, i.e., if the record shows defendant knew he had a right not to plead guilty. (People v. Howard, supra, 1 Cal.4th at p. 1178.) In Howard, our Supreme Court concluded that the defendant knew he had a right not to admit [a] prior conviction and, thus, not to incriminate himself where the trial court specifically informed [the] defendant that he had a right to force the district attorney to prove the prior conviction in a trial and that, in such a trial, he would have the rights to a jury and to confront adverse witnesses. (Id. at p. 1180.) The court found: The admonitions were not empty words because [the] defendant was actively represented by counsel and preparing for trial on charges to which he had pled not guilty. Moreover, there was a strong factual basis for the plea. (Ibid.)

The same is true here. Defendant was informed that he had an absolute right to go to a jury trial and have the jurors decide the truth of the allegations against him. He was advised that at the trial, the burden is not on you to prove your innocence, but the burden is on the People to prove your guilt of all of these charges, and that he would have the right to confront and cross[-]examine the [Peoples] witnesses and put on witnesses in [his] defense. The admonitions were not empty words because defendant was actively represented by counsel and preparing for trial on charges to which he had pled not guilty. Moreover, as we explain below, there was a strong factual basis for the plea.

On this record, the trial court reasonably could have found defendant knew he had a right not to plead guilty and, therefore, did not abuse its discretion in concluding his plea was voluntary and intelligent despite the absence of an explicit admonition on the privilege against self-incrimination.

B

The Trial Courts Failure To Inquire As

To The Factual Basis For The Plea Was Harmless

Defendant claims, and the People concede, that the trial court failed to inquire as to the factual basis for defendants plea, and therefore erred under Penal Code section 1192.5.^[4] (People v. Hoffard (1995) 10 Cal.4th 1170, 1184.) However, as the People note, [i]f the trial court fails to make an on-the-record inquiry as to the factual basis for the plea, the appellate court is free to review the record and determine whether the error is harmless, i.e., whether the record contains sufficient information to ensure the defendant committed the acts to which the plea was entered. (People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1576.) The threshold is extremely low. [T]here need not be evidence of each element of the offense charged. (Id. at p. 1578.) We need only determine whether the court could find a prima facie factual basis for the charges. (Id. at p. 1580.)

The crime of forcible rape is set forth in Penal Code section 261, which provides in pertinent part: (a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: [] . . . [] (2) Where it is accomplished against a persons will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. [] . . . [] (b) As used in this section duress means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress. An act may be considered against the will of the victim even if the victim did not resist. (People v. Barnes (1986) 42 Cal.3d 284, 302.)
K. R.s preliminary hearing testimony provided more than a sufficient factual basis for defendants plea. Defendant had sexual intercourse with K. R. two to three times a week when she was between the ages of 15 and 18 (with the exception of a one-year period). While K. R. did not want to have sexual intercourse with defendant, she acquiesced in his advances because she believed that if she fought defendant would hurt her. This belief was reasonable given defendants history of physically abusing K. R.

On this record, the trial courts error in failing to obtain a factual basis for defendants plea was harmless.

II

The Plea Was Voluntary Even Though It Was Entered Reluctantly

Defendant claims that he was under great duress at the time he entered his plea and as a result, his plea was involuntary. He states that his duress stemmed from the courts in limine rulings and the prospect of a 76-year prison sentence and argues his repeated statements of innocence clearly conveyed that he was under duress. We are not persuaded.

At best, the circumstances defendant cites establish that he was reluctant to change his plea. However, such state of mind is not synonymous with an involuntary act. (People v. Urfer (1979) 94 Cal.App.3d 887, 892.)

This case is analogous to People v. Hunt (1985) 174 Cal.App.3d 95. There, the defendant was charged with 40 sexual offenses and pled guilty to 11. (Id. at p. 101.) When asked if his plea was free and voluntary, the defendant responded: Yes, maam. Against my better judgment, I am. (Id. at p. 102.) He later moved to withdraw his plea, arguing he felt pressured to change his plea. (Ibid.) In upholding the trial courts decision to deny the motion, the court observed: Often the decision to plead guilty is heavily influenced by the defendants appraisal of the prosecutions case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. Considerations like these frequently present imponderable questions for which there are no certain answers; judgments may be made that in the light of later events seem improvident, although they were perfectly sensible at the time. (Hunt, at pp. 103, quoting Brady v. United States (1970) 397 U.S. 742, 756-757 [25 L.Ed.2d 747, 761].) The court found the defendants [p]ostplea apprehension insufficient to compel the exercise of judicial discretion to permit withdrawal of the plea of guilty and that his statement that he was entering his plea against his better judgment demonstrate[d] only his continued reluctance and vacillation between desiring to plead guilty and considering going to trial. The record does not demonstrate mistake, ignorance or overbearance of his free will. (Hunt, at p. 104.)

Similarly, here, defendant was faced with 20 felony charges, which he was advised carried a maximum sentence of 76 years, and pled guilty to two in exchange for a stipulated 16-year prison sentence. That he took the deal not because he was guilty, but because he did not want to risk conviction and a possible 76-year sentence does not demonstrate his plea was involuntary. While defendants decision may have been a difficult one, [n]othing in the record indicates he was under any more or less pressure than every other defendant faced with serious felony charges and an offer of a plea bargain. (People v. Huricks, supra, 32 Cal.App.4th at p. 1208.)

Finally, as defendant concedes, a defendant may . . . enter a plea of guilty even though he protests his innocence. (People v. Watts (1977) 67 Cal.App.3d 173, 180, citing North Carolina v. Alford (1970) 400 U.S. 25 [27 L.Ed.2d 162].) Indeed, such a claim is inherent in a plea, such as defendants, that is entered pursuant to People v. West, supra, 3 Cal.3d at page 595 (approving entry of a plea of guilty without defendant having to admit a factual basis for the plea). Defendants statement to the trial court that he was pleading guilty to something he did not do in no way undermines the validity of his plea.^[5]

In sum, circumstances of defendants plea, including the trial courts failure to expressly advise him of the privilege against self-incrimination or to inquire as to the factual basis for the plea, fail to demonstrate defendants plea was involuntary. Accordingly, the trial court did not abuse its discretion in denying defendants motion to withdraw his plea.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

MORRISON , Acting P.J.

BUTZ , J.

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^[1]People v. Harvey (1979) 25 Cal.3d 754.

^[2]People v. West (1970) 3 Cal.3d 595.

^[3] The trial court denied defendants motion in limine to introduce evidence of K. R.s sexual conduct for purposes of impeachment.

^[4] Penal Code section 1192.5 provides in pertinent part: If the court approves of the plea, it shall . . . cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.

^[5] To the extent defendant contends that he pled guilty, at least in part, because he mistakenly believed he could be sentenced to 76 years in prison if convicted of a single offense, this contention is not supported in the record. At the change of plea hearing, defendant asked the court: If they catch me on an assault, does that make me guilty on everything? The court responded that it was up to the jury. When defendant accused Rechter of advising him that if I am guilty of one, I am guilty on all, Rechter denied making any such statement and said: I said to you if the jury finds you guilty on one there is a great likelihood they would find you guilty on all of them, because its similar conduct.