Filed 8/24/17 P. v. Michael CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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.

Marianne Harguindeguy, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.

Haben Beyene Michael appeals following the denial of his motion to withdraw his guilty pleas. Michael obtained a certificate of probable cause from the trial court. (Pen. Code,[1] § 1237.5.) He contends his decision to plead guilty was the result of undue, and improper duress by his retained counsel. Following an evidentiary hearing the court denied the motion to withdraw the pleas. After a full review of the record we conclude the court properly found Michael had not shown good cause to withdraw his pleas. Thus, we will affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

Michael was charged with two counts of first degree robbery (§§ 211, 212.5, subd. (a); counts 1, 2); one count of first degree burglary (§§ 459, 460; count 3); one count of dissuading a witness from testifying by means of force or threat (§ 136.1, subds. (a)(1), (c)(1); count 4); and two counts of false imprisonment by means of violence, menace, fraud and deceit (§§ 236, 237, subd. (a); counts 5, 6). It was also alleged that Michael vicariously used a firearm (§ 12022, subd. (a)). The information also alleged two serious felony priors (§ 667, subd. (a)(1)) and three prior strike convictions (§ 667, subds. (b)-(i)).

After a defense request for a continuance of the trial date was denied, Michael pleaded guilty to two counts of first degree robbery, admitted vicarious use of a firearm and admitted two serious felony prior convictions and one strike prior.

Michael's motion to withdraw his guilty pleas was denied and he was sentenced to an agreed term of 26 years in prison.

Since this appeal is from guilty pleas, we will summarize the facts with Michael's admission in the change of plea: "[Michael] took by means of force the personal property of another . . . while another principle [sic] was armed with a firearm each event was in an inhabited building."

DISCUSSION

A. Background

Michael contends he pleaded guilty due to duress. He argues his attorney improperly coerced him to plead, that she was not prepared for trial and threatened him in order to get him to accept the plea agreement. Michael was originally represented by the public defender. In January 2016, he retained Melissa Bobrow to represent him. The case was ultimately set for trial on June 1, 2016. Shortly before trial, counsel requested a continuance because her eye witness identification expert had not yet submitted a report. The trial court indicated it would deny the continuance. At that point the prosecutor offered a "deal" for a 26-year sentence if Michael accepted it that day. The prosecutor limited the deal to that day as she had to decide whether to fly the two victims from Georgia. After lengthy discussions with counsel, Michael ultimately accepted the "deal."

Several weeks later, Michael dismissed Bobrow and then retained new counsel. Michael filed a motion to withdraw his guilty plea, alleging defense counsel was unprepared, which caused him to plead guilty instead of going to trial.

The trial court held an evidentiary hearing at which Bobrow testified as the only witness. Bobrow testified she was prepared for trial, but was uncomfortable going to trial without first getting the expert's report. She had spoken to other experts without success. At least one of the experts advised her there was no viable eye witness defense. Michael wanted to speak to his family before making a decision. Michael did speak to his brother by phone. Bobrow also spoke with the brother. After discussing Michael's options with the brother, the brother told Bobrow to tell Michael to sign it.

Bobrow admitted using colorful language including "F-bombs" in her discussions. At one point, she told Michael that they "had absolutely no defense to this case and that after investigating the case and speaking with an expert, that winning this trial was unbelievably unlikely." Bobrow admitted using "colorful language" in her effort to get Michael to realize the plea offer was in his best interest. At one point, she said: "The same idiot brain that decided to continue robbing people without a mask on multiple occasions was the same idiot brain that was refusing to take this deal."

After Bobrow related the brother's advice to take the plea deal, Michael agreed to sign it.

Michael did not testify at the evidentiary hearing and did not submit a declaration with his motion to withdraw the pleas.

At the conclusion of the hearing, the court said:

"It is exacerbated in a criminal case where the penalty at stake ultimately is life in prison. ¶ The pressure increases [in] any criminal case when there is a day at which the criminal proceedings will be concluded, and that is the day trial commences and/or a verdict is rendered. The pressure must be incredible at the point where [you] get to the end of the case and there is no good cause for a continuance and there is no perceptible defense to the charges. ¶ . . . ¶ The pressure also is increased when, in fact, consistent with the duty of candor, an attorney tells you that your situation is not good, grim and perhaps hopeless. ¶ The pressure becomes increasingly brought to bear in a very normal sense when you are looking at an indeterminate life sentence . . . and something truly remarkable happens due to perhaps skillful lawyering when an offer of determinate sentence is offered. Those are all natural and normal pressures."

The court found it was important for defense counsel to be candid with the defendant. The court said:

"The duty of candor is extremely important, and sometimes when people are in an emotional state not wanting to deal with the realities of the situations that they themselves have created for themselves, colorful and adult language is not unknown to the criminal justice system and probably, frankly, is within the standard of practice. It is a way to effectively communicate when individuals are at the point of not making decisions that would be in their best interest."

B. Legal Principles.

Motions to withdraw guilty pleas are governed by section 1018. In People v. Ravaux (2006) 142 Cal.App.4th 914, 917 we stated:

"A defendant may move the trial court to set aside a guilty plea for good cause at any time before the entry of judgment. [Citation.] 'Good cause' means mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free judgment and must be shown by clear and convincing evidence. [Citation.] The grant or denial of such a withdrawal motion is 'within the sound discretion of the trial court and must be upheld unless an abuse thereof is clearly demonstrated.' [Citation.] We are required to accept all factual findings of the trial court that are supported by substantial evidence."

An otherwise valid plea may not be set aside because a defendant has changed his or her mind. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) Every defendant faced with pleading guilty to a serious felony will be under pressure. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208). The fact that defense counsel has persuaded the defendant to plead guilty does not render the plea involuntary. (People v. Ravaux, supra, 142 Cal.App.4th at p. 919.)

The trial court's decision to grant or deny a motion to withdraw a guilty plea is reviewed under the abuse of discretion standard. We will not overturn such decision in the absence of a clear showing of abuse of discretion. (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796.) We accept the trial court's factual findings that are supported by substantial evidence. (People v. Archer (2014) 230 Cal.App.4th 693, 702.)

C. Analysis

Michael's argument that he acted under duress is simply not supported by the record. He certainly faced a difficult choice in pleading guilty to crimes that would result in a 26-year prison term. The pressure was not made easier by the fact he was facing a sentence potential which would keep him in prison for the rest of his life. It is clear his counsel vigorously attempted to persuade Michael to plead. While counsel was very vigorous and "colorful" in her efforts, the trial court found no improper pressures or duress. Counsel did not threaten to withdraw if Michael did not plead. She testified she was prepared for trial and did not tell Michael that she was not prepared. Counsel had done investigation of the victims, identified impeachment witnesses and had contacted experts on an eye witness identification defense. She had largely been unsuccessful in developing such a defense.

One expert made clear to her that there was no eye witness identification defense available here. That is understandable since Michael had prior contact with the victims, and had visited with them the year before. Robbing people you know is not likely to produce a winning eye witness defense.

Michael relies on People v. Young (1956) 138 Cal.App.2d 425. There the defendant was told defense counsel was unprepared and the defendant could plead or face trial with an unprepared counsel. The court in Young found defense counsel's actions unduly influenced the defendant's decision to plead guilty. (Id. at pp. 426-427.) This case is different than that which was presented to the court in Young.

In this case the trial court found that counsel was prepared and had not threatened or unduly influenced the defendant. Counsel undoubtedly tried to convince Michael that the "deal," as harsh as it was, was still his best alternative. She thoroughly discussed his circumstances and contacted Michael's brother for advice, which was related to Michael before he decided to plead. The trial court observed the testimony at the motion hearing and observed Michael at the change of plea. We are satisfied the trial court acted well within its discretion in denying the motion to withdraw the guilty pleas. There was no abuse of discretion and no denial of due process.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

DATO , J.