P. v. Myles

Filed 4/30/07 P. v. Myles CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant pleaded no contest to a charge of second degree murder. On the morning of defendants sentencing, the trial court received a handwritten letter from defendant seeking to withdraw her plea. In the letter, defendant claimed that a witness to the killing had admitted to an investigator that she had lied in prior accounts. The letter did not identify the investigator or the witness, nor did it describe the nature of the claimed admission. The trial court denied the request to withdraw defendants plea after concluding that her decision to plead was undertaken freely and voluntarily.

Defendant claims that the trial court abused its discretion in denying her request to withdraw her plea and that her attorney provided ineffective assistance by not speaking in support of her request. We affirm.

I. BACKGROUND

Defendant was charged in an information, filed May 27, 2005, with murder (Pen. Code,  187, subd. (a)), identity theft (Pen. Code,  530.5, subd. (a)), forgery (Pen. Code,  470, subd. (d)), and four counts of making false financial statements. (Pen. Code,  532a, subd. (1).) The information further alleged that defendant personally inflicted great bodily injury. (Pen. Code,  1203.075.)

According to the probation report, defendant reported the victim missing in February 2004. At the time, defendant was living in the victims home. In April, police executed a search warrant in the home. They found the victims body wrapped in cellophane and entombed beneath a basement workbench, hidden behind installed particleboard. An autopsy revealed signs of blunt trauma to his head. Police also found evidence that defendant had used the victims identification to open a number of credit accounts in his name, with defendant an authorized user. Purchases on the accounts totaled over $13,000.

Defendant pleaded no contest to a charge of second degree murder, and the remaining charges were dismissed. On the morning of defendants sentencing, June 29, 2006, the trial court was given a handwritten letter from defendant in which she asked to withdraw her plea. The letter read in full, Within the last few months I have been able to get new information regarding my case. This information is enough to prove I did not kill [the victim]. I would like to withdraw my no contest plea. I am also financially able to hire my own [attorney] to handle my case, now that I have evidence to prove it. I feel that because I did not have the money for an investigator or [attorney] I had no chance at all. [The victims] death was a[n] accident that I did not handle properly but I did not kill him. One of the people that was there that night can prove this but both lied. For two months now a[n] investigator has befriended her. She admitted to the [sic] it on tape. Please give me a chance to go to trial.[1]

Given an opportunity by the trial court at the sentencing hearing to explain her request, defendant added nothing to the generalities in her letter, concluding, I found new things in the case that hadnt been brought up. The trial court denied the motion without further discussion, explaining, I have here the transcript of the plea that I took from you . . . . If you recall, we had a lengthy discussion concerning the fact that you wanted more time to talk to your daughter and to think about the case, and I said no, we were in the trial court, we were in the posture of actually going to trial. I reminded you that witnesses were subpoenaed and now is the time to put closure on the matter. [] I have the transcript before me and I have reviewed it very carefully. I explained to you the rights that you had; you waived those rights. You indicated to me that you were doing this freely and voluntarily. At one point [counsel] pointed out to me that this was your decision to enter the plea, that it was not pressured by counsel. [] I see nothing here that would indicate that this plea was in any way coerced, forced. I certainly did not think you were under the influence of anything when we discussed this, so I see no reason to change my determination that you entered this plea voluntarily and knowing the consequences there have [sic]. [] I cannot see any reason to allow you to withdraw this plea just because at this point you changed your mind. []  Your motion to withdraw the plea is denied.

The transcript from the plea hearing, conducted two months before in April 2006, confirms the trial courts account. Defendant expressed no ambivalence in entering the plea and appeared fully to understand its consequences. Her only concern was that she would be allowed to have a visit from her young daughter before being sent to prison. During the plea proceedings, defense counsel asked defendant, [M]y understanding is this is a decision initiated by [defendant], and Ive always told her I was perfectly prepared to try this case, so do you have any doubts about what youre doing at this point? Defendant responded, No.

Defendant received a prison sentence of 15 years to life.

II. DISCUSSION

Defendant contends that the trial court abused its discretion in denying her motion to withdraw her plea of no contest.

[Penal Code] section 1018 provides that [o]n application of the defendant at any time before judgment . . . the court may . . . for . . . 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. A no contest plea is treated the same as a guilty plea for this purpose. [Citations.] Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea, but must be shown by clear and convincing evidence. [Citation.] (People v. Ramirez (2006) 141 Cal.App.4th 1501, 1506.) Other factors overcoming [a] defendants free judgment include inadvertence, fraud or duress. [Citations.] However, [a] plea may not be withdrawn simply because the defendant has changed his mind. [Citations.] (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)

A decision to deny a motion to withdraw a guilty plea  rests in the sound discretion of the trial court  and is final unless the defendant can show a clear abuse of that discretion. [Citations.] Moreover, a reviewing court must adopt the trial courts factual findings if substantial evidence supports them. [Citation.] (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)

There was no evidence presented to the trial judge to suggest that defendants plea of no contest was made with anything less than the exercise of her free judgment. Her motion did not contend, for example, that she was under duress or that her plea had been entered on the basis of misinformation. (See, e.g., People v. Panizzon (1996) 13 Cal.4th 68, 76.) Instead, taking defendants representations at face value, she wanted to withdraw her plea because an investigator was able, by befriending a witness to the killing, to capture on tape the admission of the witness that he or she had lied. The development of new testimony is not generally a basis for allowing the withdrawal of a plea, in the absence of deception that interfered with a defendants knowing exercise of judgment at the time the plea was entered. (See, e.g., People v. Ramirez, supra, 141 Cal.App.4th at pp. 15061508.)

Even assuming that the development of new evidence could support a claim that defendants plea was entered with less than her free judgment, however, the facts alleged in her motion are so vague that they could not constitute the necessary clear and convincing evidence to support withdrawal of her plea. Neither the investigator nor the witness is identified, and there is no indication of the witnesss relationship to the events in question. Further, the defendant did not provide any information about the content of the witnesss original statements, her admission of falsity, or the helpful testimony that presumably could be developed from that admission. In short, the purported new information . . . . [which] is enough to prove I did not kill is never specified. Accordingly, there was no way for the court to determine whether the new developments could have been material to defendants decisionmaking in entering her plea. In these circumstances, we have no basis for finding the trial courts denial of the motion to be an abuse of discretion.

Defendant contends that the trial court did not address[] the actual stated grounds upon which her motion was based. We do not agree. The trial court was plainly aware of the standard for evaluating a motion for withdrawal of plea and reviewed the evidence regarding defendants exercise of free judgment at the time her plea was entered. As noted above, the stated grounds for defendants motionthe development of new testimonyare not generally regarded as a basis for permitting withdrawal of a plea.

Defendant cites People v. Clark (1968) 264 Cal.App.2d 44, in which the court faulted the trial courts acceptance of a guilty plea when, at the time the plea was taken, the defendants suggested that they were not, in fact, guilty of all elements of the crime. (Id. at pp. 4546.) This is not such a situation. Defendant did not, of course, plead guilty. She pleaded no contest. Further, there was no suggestion at the time of the plea that defendant was concerned about its appropriateness. Unlike the defendants in Clark, she showed no hesitation in entering the plea. The fact that she later proclaimed her innocence does not require the court to permit its withdrawal. On the contrary, her claim of innocence indicates only that, as the trial court observed, defendant had changed [her] mind about the wisdom of entering the plea. This is not a basis for permitting withdrawal of a plea. (People v. Huricks, supra, 32 Cal.App.4th at p. 1208.)

Relying largely on People v. Brown (1986) 179 Cal.App.3d 207 (Brown), defendant also contends that her attorney rendered ineffective assistance of counsel because counsel did not speak during the time defendants request was being discussed at the hearing.

In assessing claims of ineffective assistance of trial counsel, we consider whether counsels representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsels performance fell within the wide range of professional competence and that counsels actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] (People v. Carter (2003) 30 Cal.4th 1166, 1211.) Because of this rule, a claim of ineffective assistance of counsel is more appropriately raised in a habeas proceeding than on direct appeal, since in most cases the appellate record sheds little or no light on the reasons for counsels action or failure to act. (People v. Jones (2003) 30 Cal.4th 1084, 1105.)

To prevail on a claim of ineffective assistance, defendant must show both: (1) that counsels performance was deficient; and (2) that the deficient performance prejudiced his defense. [Citations.] To establish prejudice, defendant must show that there is a reasonable probability that, but for counsels errors, the result of the proceeding would have been different. [Citations.] A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citations.] (People v. Davis (2005) 36 Cal.4th 510, 551.)

Defendant seeks to avoid the rules governing a claim of ineffective assistance of counsel by arguing that she suffered an absence of counsel, as illustrated in Brown. In that case,defense counsel informed the court at sentencing that her client wished to withdraw a plea of no contest. Counsel commented that she had refused to make the motion because she believed there was no basis for it. (Brown, supra, 179 Cal.App.3d at p. 211.) The defendants subsequent request for an attorney who would assist in making the motion was denied. (Id. at p. 212.) Relying on the twin principles that defense counsel has the exclusive right to control the defense and the client has the exclusive right to determine his or her plea, the court held that defense counsel is required to implement a defendants wish to seek to withdraw his or her plea unless such a motion would be frivolous or would require the attorney to compromise his or her ethical obligations. (Id. at pp. 215216.)

Brown is inapplicable here. The defendant in Brown was found to be effectively without counsel because his attorney refused to file a motion to withdraw the plea and the court refused to appoint new counsel who would make the motion.In contrast, there is no evidence that defendants attorney refused to file a motion to withdraw. All we can discern from this record is that a handwritten request was provided to the court on the day of sentencing. There is no evidence that defense counsel was aware of the request in advance or of defendants desire to withdraw her plea, let alone evidence that counsel was consulted, determined that a motion to withdraw would be non-frivolous and ethically permissible, and yet refused to file it. The critical element in Brown, the absence of an attorney willing to assist defendant in asserting her right to determine her plea, is lacking.[2]

Accordingly, we evaluate defendants claim under the standard applicable to ineffective assistance, rather than absence of counsel. Defense counsels mere silence at the time the motion was made does not, on its own, constitute inadequate assistance. (See, e.g., People v. Duran (1969) 275 Cal.App.2d 35.) Silence by counsel is often the result of a tactical decision. Only where an attorney actively speaks against a proposal put forth by his or her client, as defense counsel did in Brown by informing the court that she found no basis for the defendants motion, is ineffective assistance found. (See, e.g., People v. Cropper (1979) 89 Cal.App.3d 716, 720721 [ineffective assistance found where counsel argu[ed] against the defendant by stating that he agreed with the negative assessment of the probation department].) In the absence of some explanation for counsels conduct, we have no basis for concluding that counsels silence constituted deficient performance.

Further, on the record before us we find no evidence suggesting that defense counsels failure to speak, even assuming it constituted deficient performance, was prejudicial to the outcome of defendants motion. Defendant argues that if she had been assisted by counsel, she could have presented her new evidence in a more forceful, convincing manner. That argument assumes, however, that there was a better argument to be made. We are presented with no evidence to support that assumption. The identity of the investigator and witness are not found in the record, nor is the nature of the witnesss recantation specified. To find prejudice, we would be required to engage in unsupported speculation that defendants conclusory claims were backed by persuasive, specific facts that she failed to provide. Because we have no evidence of such facts in the record before us, there is nothing to suggest that the active advocacy of an attorney would have aided defendants cause in withdrawing her plea. In the absence of a showing of prejudice, there is no basis for reversal on grounds of ineffective assistance. (People v. Davis, supra, 36 Cal.4th at p. 551.)

III. DISPOSITION

The judgment is affirmed.

_________________________

Margulies, J.

We concur:

_________________________

Marchiano, P.J.

_________________________

Stein, J.

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[1] In a letter to the probation department, included with the probation report, the prosecutor represented that during one interview with police defendant claimed that the victim was killed by a fall down the stairs, which occurred during an argument with defendant. Defendant told police that a female boarder at the victims home was in the home at the time of the argument, but [defendant] was vague about what [the boarder] saw or did. When police interviewed the boarder, she adamantly denied being present for any such confrontation and told them she had not seen the victim alive since the morning of his disappearance.

[2] Defendant argues that [i]t was improper to permit or require [defendant] to bring her motion in pro per while she was still represented by counsel and she had not waived her right to counsel, citing People v. McCary (1985) 166 Cal.App.3d 1. In McCary, as in Brown, defense counsel had refused to bring a motion to withdraw on the ground that it was not in the defendants best interests. (McCary, at p. 11, fn. 8.) As noted, there is no evidence that defendants attorney had refused to make the present motion.