P. v. Newquist
Filed 1/11/13 P. v. Newquist
CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
DAMON MARSHALL NEWQUIST,
Defendant
and Appellant.
E053862
(Super.Ct.Nos.
FSB037368,
FSB042723)
OPINION
APPEAL from the Superior Court of
Bernardino County.
Douglas A. Fettel, Judge.
(Retired judge of the San Bernardino Super. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Gerald J. Miller, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Anthony Da Silva and Peter Quon, Jr., Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant challenges the trial
court’s 2011 denial of his motion to
withdraw his 2003 guilty plea, after remand by this court for a full
hearing on the motion. Defendant
contends his mental condition prevented him from exercising his free and clear
judgment when he pled guilty, his counsel was ineffective, and the trial court
improperly coerced him to plead guilty.
As discussed below, we conclude that each of these claims lacks merit
and so affirm the trial court’s ruling denying the motion to withdraw.
On July
17, 2003, defendant was charged with
neighbor’s apartment through a bedroom window.
The information alleged that defendant had a prior “strike†conviction
for robbery. (§§ 211 & 1170.12,
subds. (a)-(d).) Defendant pled not
guilty and denied the prior strike allegation.
On August
15, 2003, defendant agreed to withdraw his
not guilty plea. He entered a plea of
guilty and admitted the prior strike allegation. However, immediately thereafter, the trial
court allowed defendant to withdraw his guilty plea because counsel had
misinformed defendant about the amount of time he would actually have to
serve. On August 29, 2003, the trial court granted defendant’s Marsden
name="_ftnref3" title="">[3] motion and appointed new
counsel.
On September 26, 2003, defendant for the second time withdrew his not guilty plea and
agreed to plead guilty to residential burglary.
This is the guilty plea at issue in this appeal. Under the plea agreement, defendant also
admitted the prior strike allegation and was sentenced to 17 years in
prison. In exchange, defendant was
released that day under a Vargas
his sentence would be reduced to eight years if he appeared on November 12, 2003, for resentencing and did not commit any criminal acts in the
meantime.
Defendant did not appear for resentencing and so a
arrest. On January 26, 2004, defendant was charged with three new crimes from the period during
which he was out of custody on the Vargas
waiver.
title="">[5] He was arraigned on the
bench warrant on January 28, 2004. The trial court denied bail.
On
February 25,
2004, the day defendant was to be
resentenced, he stated he wanted to withdraw his guilty plea. On March 24, 2004,
defense counsel declared a doubt as to defendant’s mental competence. The trial court suspended all proceedings
pending assessment by a mental health professional. On April 28, 2004,
the trial court reviewed the medical reports, found defendant competent, and
reinstated all proceedings. On that
date, defendant again indicated he wanted to withdraw his guilty plea.
After numerous continuances, the trial court granted defendant’s
second Marsden motion on November 30, 2004. New counsel filed
defendant’s motion to withdraw his guilty plea of September 26, 2003.
After more continuances, the hearing
on defendant’s motion was set for September 28, 2005. On that date, the trial
court sentenced defendant to 17 years pursuant to the Vargas waiver, but did not address defendant’s motion to withdraw
his guilty plea. Defendant
appealed. In an unpublished decision in
case number E039086, dated August 31, 2006, this court remanded the case to the
trial court to resolve defendant’s motion to withdraw his guilty plea by
conducting a hearing in accordance with section 1018.
On May 27, 2011, after much delay, the trial court held an
evidentiary hearing at which appellant and his former defense counsel
testified. After hearing argument by
both sides and reviewing the reporter’s transcript of defendant’s September 26,
2003, guilty plea, the trial court denied defendant’s motion to withdraw his
guilty plea. This second appeal
followed.
Defendant argues the trial court at
the 2011 hearing erred when it denied his motion to withdraw his guilty plea
because he presented clear and convincing evidence that: 1) his mental
condition at the time of the plea prevented him from exercising his free and
clear judgment; 2) defense counsel was ineffective for failing to explain to
him that he was pleading guilty to a strike offense; and 3) the trial court
improperly coerced defendant into pleading guilty.
Section
1018 provides, “On application of the defendant at any time before
judgment . . . the court shall, for a good cause shown,
permit the plea of guilty to be withdrawn and a plea of not guilty substituted.†While the statute by its terms is to be
“liberally construed,†the defendant has the burden of showing, by clear and
convincing evidence, good cause for withdrawing his plea. (§ 1018; People
v. Nance (1991) 1 Cal.App.4th 1453, 1456.)
To establish good cause, the defendant must show that he was operating
under mistake, ignorance, inadvertence, fraud, duress, or any other factor
overriding his free judgment. (
492, 496; People v. Huricks (1995) 32
Cal.App.4th 1201, 1208.) A plea may not
be withdrawn simply because a defendant has changed his mind. (In re
Brown (1973) 9 Cal.3d 679, 686, overruled on another ground in
1092-1093, 1097.) A trial court’s
decision to grant or deny a defendant’s motion to withdraw his guilty plea is
reviewed for abuse of discretion. (
1557, 1561.) Discretion is abused when a
court acts in an arbitrary, capricious, or patently absurd manner, which results
in a manifest miscarriage of justice. (People
v. Jordan (1986) 42 Cal.3d 308, 316.)
In determining whether a defendant has shown good cause for granting a
motion to withdraw a guilty plea, the reviewing court must adopt the trial
court’s factual findings if they are supported by substantial evidence. (People
v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
The evidence at the hearing, which must be “clear and convincing,â€
that defendant was entitled to withdraw his guilty plea was as follows. Defendant’s attorney at the time of the
challenged guilty plea testified that he remembered defendant “certainly†and
his case “in a general sense,†meaning “Some details, yes. Most details, no.†Counsel remembered discussing with defendant
defendant’s mental health and medications, but did not recall defendant saying
that he did not understand the plea proceedings. Counsel did not specifically remember what he
explained to defendant about the plea deal, but testified that he had, in 2003,
been in practice for 15 or 16 years and had a “custom and practice†of
explaining to defendants the implications of pleading guilty to a “strike,†and
going over each section of the plea form with the defendant. Counsel recalled that defendant initially did
not want to take any plea deal, but changed his mind because he wanted to get
out of custody for family reasons.
Counsel testified that it is typically the client rather than he who
requests a Vargas waiver, usually
because the client has a need to be released to take care of business or family
matters before they go away to prison.
Counsel testified that his custom and practice is that if he believes
his client does not understand the terms of the plea agreement, he does not
sign the agreement and explains to the court that he will not be a party to it.
Defendant testified by reading from his declaration that he changed
his mind and decided to take the plea deal in 2003 when the judge “got on the
bench†and told him that he would get a sentence of 17 years if he went to
trial, or, if he waited, the People’s offer would go up from the eight years
they were offering. Defendant also
testified that he relied on the judge’s statement that defendant’s strike could
not be stricken, and that if he did not plead guilty he would have to serve 85
percent of a 17-year sentence rather an eight-year sentence. Defendant answered “yes†when asked if this
(the actual time to be served) was “a crucial factor†in his decision to plead
guilty at that time. Defendant testified
“I think I told him at that time I really didn’t want to take it†and that both
the judge and his attorney wanted defendant to take the deal. Defendant testified that he did not recall
his attorney telling him that he would be pleading guilty to a second strike or
explaining its implications. Defendant
would not have entered into the plea bargain agreement if he had known he was
pleading guilty to a new strike.
Regarding the Vargas waiver,
defendant stated when questioned as to whether he understood that if he did not
appear in court as scheduled he would get 17 years: “No, not 100 percent. I didn’t know exactly. I mean, I did, but I didn’t. . . .
[¶] . . . [¶] I
didn’t know that was set in stone, period. . . . I didn’t know
it was not negotiable. . . . I didn’t know for sure.†Regarding defendant’s mental state during the
2003 plea, he testified “I had been hearing voices, and I still do to this day. At that time I was hearing voices. I had the feeling of – I had anxiety real,
real bad. I had a feeling of impending
doom, that something bad was going to happen, period. And yes, that’s about it.†Defendant testified that he had been
diagnosed with “bipolar psychotic attention deficit disorder.â€
After reviewing the law and this record, we conclude the trial court
at the May 27, 2011, hearing on his motion to withdraw his plea, did not abuse
its discretion when it ruled that defendant had not established by clear and
convincing evidence that good cause existed to allow him to withdraw his 2003
guilty plea. First, regarding whether
defendant’s mental condition prevented him from exercising his free and clear
judgment when he pled guilty, the trial court, at the motion to withdraw hearing,
reasonably credited defense counsel’s testimony that he generally does not sign
off on plea agreements if he believes the defendant does not understand its
terms. The trial court also reasonably
discredited defendant’s self-serving testimony that he was hearing voices and
was “anxious†to the extent that it prevented him from exercising his free and
clear judgment. In addition, defendant
testified that he still hears voices “to this day,†but it does not appear in
this record that this at all prevented him from fully participating in the
motion hearing. Finally, defendant
presented no independent expert testimony or other evidence other than his own
testimony to show that his mental health should have kept him from entering
into the plea agreement, and such a deficit was not apparent in the record
transcript of the 2003 plea hearing. In
the 2003 plea hearing, the trial court went over each part of the plea
agreement with defendant and he indicated that he knowingly and willingly
entered into it.
Second, regarding whether defense
counsel was ineffective for failing to explain to him that he was pleading
guilty to a second strike offense, again, the trial court was entitled to
credit the testimony of defense counsel that it was his practice to thoroughly
explain each portion of a plea agreement, in particular when a defendant was
pleading guilty to a strike offense. In
addition, defendant had previously pled guilty to a strike. Third, regarding whether the judge improperly
pressured defendant to plead guilty, again defendant presented no evidence
other than his own self-serving testimony that he felt coerced by the trial
court to plead guilty. No such coercion
appears on the record and defense counsel did not corroborate defendant’s
description of events. In fact, defense
counsel testified that, although defendant initially did not want to take any
deal, he finally decided to plead guilty so he could be released from custody
to take care of some family business. In
addition, as the trial court at the motion hearing pointed out, he was not
persuaded that the judge in the 2003 plea hearing overwhelmed defendant’s
rational decision making abilities with his comments, both because defendant
was getting a good deal, and because defendant was experienced with the
criminal justice system, was “bright†and “articulate,†and did not present any
evidence other than his own testimony that the judge’s comments improperly
influenced him.
For these reasons, we conclude that the trial court did not abuse its
discretion when it found that defendant did not establish by clear and
convincing evidence that he was prevented from exercising his free judgment
when he entered the 2003 guilty plea.
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.
J.
We concur:
HOLLENHORST
J.
McKINSTER
J.
name="_ftn1" title=""> [1] The facts are taken from
unpublished opinion E039086, filed August 31, 2006.
title=""> [2] All further statutory
references will be to the Penal Code unless otherwise indicated.
