P. v. Prigmore
Filed 6/24/13 P. v. Prigmore CA
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(San
Joaquin)
THE PEOPLE,
Plaintiff and Respondent,
v.
THOMAS PRIGMORE,
Defendant and Appellant.
C071370
(Super. Ct. No.
SF119645A)
A
complaint filed February 24, 2012, charged defendant Thomas Prigmore with
burglary ( ADDIN BA xc <@ost> xl 9 s
GFNRMC000012 xpl 1 l "Pen. Code" Pen. Code,
BA xc <@osdv> xl 11 s GFNRMC000014 l "§§ 459, 664" §§ 459, 664;
count 1), evading an officer while driving opposite the flow of traffic ( ADDIN BA xc <@st> xl 19 s GFNRMC000001
xpl 1 l "Veh. Code, § 2800.4"
Veh. Code,
§ 2800.4; count 2), harming a peace officer’s dog ( ADDIN BA xc <@osdv> xl 16 s
GFNRMC000015 xpl 1 l "§ 600, subd. (a)"
§ 600, subd. (a);
count 3), and resisting or obstructing an officer
(
ADDIN BA xc <@osdv> xl 5 s GFNRMC000016 xpl 1 l "§ 148" § 148; count 4). In March 2012, the prosecutor amended count 2
to allege driving in a wanton manner while eluding a pursuing peace
officer. ( ADDIN BA xc <@st> xl 19 s
GFNRMC000002 xpl 1 l "Veh. Code, § 2800.2"
Veh. Code,
§ 2800.2.) Defendant pleaded no
contest to counts 1 and 2; counts 3 and 4 were dismissed in light of the
plea. Imposition of sentence was
suspended and defendant was placed on probation for five years on the
condition, among others, that he serve 180 days’ incarceration with credit for
six days.
In May 2012, defendant, represented
by new counsel, filed a motion to withdraw
his no contest pleas. The motion alleged
that defendant’s former counsel had rendered ineffective assistance when he
failed to investigate the case and wrongly advised defendant to plead no
contest, and defendant may have been under the influence of prescription medicine
at the time of the pleas. Following a
hearing, the trial court denied the motion to withdraw the pleas. Defendant obtained a certificate of probable
cause.
On appeal, defendant renews his
contention that his motion to withdraw the pleas should have been granted
because his trial counsel had been ineffective and defendant’s medical
condition prevented him from making an intelligent and informed decision to
enter the plea. We affirm.
FACTS
On February 21, 2012, at 10:20 p.m., defendant and his codefendant, Angela
Smith,
property of an irrigation company.
duo appeared to be crouching down near some large PVC pipes. San Joaquin County Sheriff’s Deputy
Christopher Hill checked the perimeter of the business and saw a black truck
leave the area at high speed. A high
speed chase ensued, with the truck traveling at times of speeds approximately
80 to 90 miles per hour and sometimes traveling in the opposite lane of traffic. After an approximately eight- and
one-half-mile pursuit, the truck crashed into a ditch and the suspects fled in
different directions. With help from a
California Highway Patrol (CHP) helicopter and a police dog, defendant and
Smith were taken into custody. Both
suspects had been bitten by the dog and required hospital treatment.
Deputy Hill advised defendants of
their constitutional rights.
Smith told him that defendant had been driving. When asked why they were at the irrigation
company, defendant told Deputy Hill they were “just fooling around.â€
Deputy Hill reported that fellow
deputies spoke with an employee of the irrigation company who said that nothing
was missing from the business and the property had not been damaged. The employee added, “it appeared that the
[suspects] were going to attempt to gain access to a [C]onex box on the
southwest end of the business.â€
A CHP 180 Vehicle Report was
completed that listed the “Driver’s Name†as “Prigmore, Thomas†and
states: “[Suspect] was seen on video
entering the yard of [the irrigation company].
This was reported as a burglary.
[Suspect] fled from officers [at a] high rate of
speed . . . .
[Suspect] and passenger fled from vehicle and were located [and] taken
into custody.†ADDIN
BA xc <@rec> xl 12 s GFNRMC000019 xpl 1 l "(Exh A p 15)" The report does not indicate how it was determined that
defendant, and not Smith, was the driver.
DISCUSSION
I
Motion
to Withdraw No Contest Plea
Defendant contends the trial court
abuses its discretion when it denies a motion to withdraw a plea where the
evidence shows the absence of a free, voluntary, and informed plea. He argues (1) his trial counsel failed to
conduct an adequate investigation and incompetently advised him to enter the
pleas; and (2) medication prescribed for the dog bite affected his thinking so
that his pleas were not entered intelligently and voluntarily. Neither point has merit.
Background
Defendant’s offense occurred on February
21, 2012, and he
entered his plea a month later, on March 27, 2012. The
prosecutor’s statement of factual basis for the plea did not include facts
gleaned from the deputies’ conversation with the irrigation company
employee. The statement did not define
the term “[C]onex box†for the court or recite the evidence that defendant and
Smith were attempting to gain access to the “[C]onex box.â€
At the hearing on the
to withdraw the plea, defendant’s former counsel
testified that he was retained to represent defendant on March
19, 2012, and he
met defendant for the first time on March 27, 2012. In
the interim, counsel’s assistant interviewed defendant for “basic informationâ€
and took “some notes†for the file. The
notes did not contain information about the crimes, but counsel obtained copies
of the crime reports prepared by the police.
Counsel also reviewed defendant’s criminal record. Counsel was aware that defendant did not own
the truck used in the crimes and that the owner was Emily Kuhn. Counsel did not know Kuhn’s relationship with
defendant and Smith or how they had obtained the truck from her.
Former counsel had not viewed the
video tapes made by the security camera at the irrigation company, but he had
knowledge of their contents from the police reports and from his conversation
with defendant. Former counsel asserted
that Smith’s statement was “the only evidence†in the crime report that showed
defendant was driving. The prosecutor’s
single-question cross-examination did not establish whether former counsel knew
that the CHP 180 Vehicle Report had also identified defendant as the driver.
On March 27, 2012, former counsel met with the trial court
and the prosecutor. The prosecutor’s
original offer had been for defendant to plead to the attempted burglary and
the amended ADDIN BA xc <@ost> xl 12 s
GFNRMC000020 l "Vehicle Code" Vehicle Code
violation for a one-year local sentence.
Ultimately, the parties agreed that defendant would plead to those
counts in exchange for a six-month sentence.
After meeting with the court and the prosecutor, former counsel met with
defendant. They discussed the police
reports, albeit not in detail; and they discussed Smith’s statement that
defendant was driving the car. Former
counsel explained to defendant that his was an “early resolution†case, which
meant that the current offer would not remain “on the table†if defendant did
not accept it at that time. Former
counsel explained that the original ADDIN
BA xc <@$ost> xl 12 s GFNRMC000020 Vehicle Code allegation had been changed to
a less serious offense, explained what the punishment would be, and advised
that it was defendant’s decision whether to accept the offer.
Former counsel testified that he had
discussed the crime of attempted burglary with defendant. Former counsel agreed with present counsel’s
suggestion that the police reports had not mentioned any structure near where
defendant and Smith had been seen on the private property or mentioned that
they had approached any structures. The
prosecutor’s single-question cross-examination did not establish whether former
counsel knew that the police reports included the employee’s observation
that defendant and Smith were about to
“attempt to gain access to,†i.e., enter, a “[C]onex box.†( ADDIN BA xc <@osdv> xl 11 s
GFNRMC000021 xpl 1 l "§§ 458, 459"
§§ 458, 459.)
Former counsel testified that
defendant had told him “he may not have been†driving the truck. Former counsel explained that, if defendant
was not the driver, that would be a defense to the ADDIN
BA xc <@$ost> xl 12 s GFNRMC000020 Vehicle Code count.
Former counsel explained to
defendant that, if he chose to reject the “early resolution†offer, further
investigation of the case “probably†would be necessary. But counsel believed he had sufficient
information to properly advise defendant with respect to the “early resolutionâ€
offer. Former counsel had received $500
for his legal services, which included his services at the time of the plea and
his assistant’s earlier appearance for him at the arraignment.
Defendant testified that he had
first met former counsel on the day of the plea. They spoke in the hallway outside the
courtroom for two to three minutes.
Former counsel went into chambers, then returned and told defendant what
the offer was; their conversation lasted about a minute. Former counsel advised defendant, “you should
take the deal because of the charges.â€
Former counsel had not told defendant he “had to†take the deal, but he
also never expressly told defendant it was his choice whether to do so. Defendant never told former counsel he was
driving the truck that night. In fact,
former counsel never asked.
Defendant testified that, at the
time of the plea, he had been taking the pain medication Norco, or hydrocodone,
which “makes you drowsy, sleepy and relaxes you.†The medication prevented him from
understanding words being said to him.
Thus, when he pled, he “didn’t quite understand what was going on
there.†He claimed former counsel had
said to just watch him and to say yes whenever counsel nodded during the
proceeding. Defendant claimed he did
this as the judge was advising him and asking questions because the judge was
talking so fast.
Defendant admitted that he had told
the court he understood the charges, he was pleading voluntarily, and no
threats or promises had been made to him outside the plea agreement. Defendant could not explain why he had
claimed to have understood when, in fact, he did not understand.
Defendant’s new counsel argued that
defendant was operating under the mistake or ignorance engendered by former
counsel’s failure to investigate the case.
In his view, a proper investigation would have revealed “defenses to
. . . the attempted burglary†and would have revealed the lack of
admissible evidence, other than from the codefendant, that defendant had been
driving the car.
Analysis
“ ADDIN BA xc <@osdv> xl 12 s
GFNRMC000022 l "Section 1018" Section 1018
provides, in part: ‘On application of the defendant at any time before judgment
. . . , the court may, . . . for a 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.’
The defendant has the burden to show, by clear and convincing evidence,
that there is good cause for withdrawal of his or her guilty plea. [Citations.]
‘A plea may not be withdrawn simply because the defendant has changed
his [or her] mind.’ [Citation.] The decision to grant or deny a motion to
withdraw a guilty plea is left to the sound discretion of the trial court. [Citations.]
‘A denial of the motion will not be disturbed on appeal absent a showing
the court has abused its discretion.’
[Citations.] ‘Moreover, a
reviewing court must adopt the trial court’s factual findings if
evidence supports them.’ [Citation.]
[¶] To establish good cause to
withdraw a guilty plea, the defendant must show by clear and convincing
evidence that he or she was operating under mistake, ignorance, or any other
factor overcoming the exercise of his or her free judgment, including
inadvertence, fraud, or duress.
[Citation.] The defendant must
also show prejudice in that he or she would not have accepted the plea bargain
had it not been for the mistake.
[Citation.]†( ADDIN BA xc <@cs> xl 56 s
GFNRMC000003 xhfl Rep xpl 1 l "
Cal.App.4th 1409, 1415-1416" People v. Breslin (2012) 205 Cal.App.4th 1409, 1415-1416.)
Inadequate
Investigation
In the ADDIN
BA xc <@osdv> xl 17 s GFNRMC000023 l "“Summary†section" “Summary†section
of his opening brief, defendant first contends former counsel
“admitted that he had not done any investigation in this case
. . . .†This claim
disregards the record. Former counsel
testified that he reviewed the police reports, the CHP 180 Vehicle Report, and
defendant’s criminal record; spoke with defendant; and determined who owned the
truck. Former counsel believed the
police reports had provided sufficient information to address the “early
resolution†offer. Thus, his investigation
had not extended beyond examining those materials. But if defendant chose not to accept the
early resolution, it “probably†would be necessary to investigate whether
defendant could defend on the basis that he was not the driver of the car.
Defendant relies on ADDIN
BA xc <@cs> xl 42 s GFNRMC000004 xhfl Rep l "People v. Jones (2010)
proposition that former counsel had the duty “ ‘to make reasonable
investigations or to make a reasonable
decision that makes particular investigations unnecessary.’ †( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id.
at p. 238, quoting ADDIN
BA xc <@cs> xl 71 s GFNRMC000005 xhfl Rep xqt xpl 1 l "Strickland v. Washington (1984)
Strickland v. Washington (1984) 466 U.S. 668, 691 [80 L.Ed.2d 674,
695]; italics added.) Defendant’s
reliance is misplaced. Because his case
had been designated for “early resolution,†which meant the current offer would
not remain “on the table†if it was not accepted that day, former counsel did
not have the luxury of first conducting a lengthy investigation and then
evaluating whether to accept the offer.
Counsel’s only option was to determine whether the offer was “a reasonable
decision†under all the circumstances. ( ADDIN BA xc <@$cs> xl 23 s
GFNRMC000004 xhfl XRef xpl 1 People v. Jones, supra,
at p. 238.) Because he and
defendant concluded it was, their decision made further “particular
investigations unnecessary.†( ADDIN
BA xc <@$cs> xl 23 s GFNRMC000004 xhfl XRef xpl 1 Ibid.)
Defendant also relies on ADDIN
BA xc <@cs> xl 38 s GFNRMC000006 xhfl Rep l "People v. Ledesma (1987)
counsel to “make a rational and informed decision on strategy and tactics
founded on adequate investigation and preparation.†( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id.
at p. 215.) But ADDIN
BA xc <@$cs> xl 7 s GFNRMC000006 Ledesma,
a capital case, had no occasion to hold, and did not hold, that the necessarily
truncated investigation that precedes acceptance of an “early resolution†offer
is inadequate as a matter of law.
Defendant next asserts former
counsel “apparently did not advise [him] of any defenses
. . . .†But former
counsel testified that he had discussed the crime of attempted burglary with
defendant. Neither defendant nor former
counsel suggested that, although they had discussed the crimes, their
discussion had omitted any discussion of defenses. No error is shown.
Defendant claims his former counsel
“never determined whether there was an actual basis for a charge of attempted
burglary. Nothing in the [police] report
indicated the presence of a building on the property, any movement by the two
people toward a building, entry or attempted [entry] into a building, or the
presence or use of any tool which could be used to force entry into a
building.†Defendant’s reading of the
police report is not correct.
The police report stated that
deputies had spoken with a witness who stated “it appeared that the [suspects]
were going to attempt to gain access to a [C]onex box on the southwest end of
the business.â€
A Conex box is an intermodal
container for shipping and storage.
(Wikipedia, The Free Encyclopedia < ADDIN BA xc <@nper> xl 34 s
GFNRMC000024 xpl 1 l "http://en.wikipedia.org/wiki/Conex"
http://en.wikipedia.org/wiki/Conex>
[as of June 14, 2013]). An intermodal
container is a standardized reusable steel box for the storage and movement of
materials and products within a global containerized intermodal freight
transport system. (Wikipedia, The Free
Encyclopedia <
ADDIN BA xc <@nper> xl 49 s GFNRMC000025 xpl 1 l "http://en.wikipedia.org/wiki/Intermodal_container" http://en.wikipedia.org/wiki/Intermodal_container>
[as of June 14, 2013].) (See also ADDIN
BA xc <@cs> xl 47 s GFNRMC000007 xhfl Rep xpl 1 l "People v. Bailey (2012)
ADDIN
BA xc <@osdv> xl 11 s GFNRMC000026 l "Section 459" Section 459 provides in relevant
part: “Every person who enters any
. . . locked or sealed cargo container, whether or not mounted on a
vehicle . . . with intent to commit grand or petit larceny or any
felony is guilty of burglary.†ADDIN
BA xc <@osdv> xl 11 s GFNRMC000027 l "Section 458" Section 458 explains that a “cargo
container†is a receptacle with all of the following characteristics: “(a)
Of a permanent character and accordingly strong enough to be suitable for
repeated use. [¶] (b) Specially
designed to facilitate the carriage of goods, by one or more modes of
transport, one of which shall be by vessels, without intermediate
reloading. [¶] (c) Fitted
with devices permitting its ready handling, particularly its transfer from one
mode of transport to another. [¶] (d) So
designed to be easy to fill and empty.
[¶] (e) Having a cubic displacement of 1,000 cubic feet or more.†( ADDIN BA xc <@$osdv> xl 5 s
GFNRMC000027 xpl 1 § 458.)
Deputy Hill, who authored the police
report, may have understood that, under proper circumstances, a Conex box could
be the object of a burglary. Thus,
contrary to defendant’s argument, the police report did indicate a possible factual basis for a charge of attempted
burglary. Moreover, the report--which
did not describe the Conex box in detail or address the statutory elements of a
cargo container--provided a basis for former counsel to conclude “early
resolution†was preferable to protracted litigation of the attempted burglary.
Because the prosecutor did not
tender the Conex box theory to the trial court, either in his statement of
factual basis or in his cross-examination of former counsel on the motion to
withdraw the plea, former counsel never addressed whether he had considered the
theory and its host of factual issues.
But his failure to consider the theory could not have been prejudicial.
Proper consideration of the police
report could not have assured former counsel that there was
attempted burglary. Thus, proper
consideration of the report would not have caused defendant to decline to enter
his plea. ( ADDIN BA xc <@$cs> xl 58 s
GFNRMC000003 xhfl Rep xpl 1 People
v. Breslin, supra, 205 Cal.App.4th at pp. 1415-1416.)
Defendant claims his former
counsel’s investigation was inadequate because he “apparently never ascertained
who was driving†the truck. In the trial
court, his new counsel argued, “there’s some evidence in the report based
solely on the co-defendant’s statement, which was not going to be admissible
unless some information would prove [sic].†The reference to what “some information would
prove†suggests counsel was raising an accomplice corroboration issue ( ADDIN BA xc <@osdv> xl 6 s
GFNRMC000028 xpl 1 l "§ 1111" § 1111), as
opposed to an Aranda-Bruton
confrontation issue.
testimony of accomplices must be corroborated by ‘such other evidence as shall
tend to connect the defendant with the commission of the offense.’ [Citation.] . . .
‘ “Corroborating evidence may be slight, may be entirely circumstantial,
and need not be sufficient to establish every element of the charged
offense. [Citations.]†[Citation.]
The evidence “is sufficient if it tends to connect the defendant with
the crime in such a way as to satisfy the jury that the accomplice is telling
the truth.†[Citation.]’
[Citation.]†( ADDIN BA xc <@cs> xl 40 s
GFNRMC000010 xhfl Rep xpl 1 l "
Cal.4th 1, 55" People v. Whalen (2013) 56 Cal.4th 1, 55.)
New counsel’s corroboration argument
overlooked the CHP 180 Vehicle Report that was attached to the police
report. The CHP 180 Vehicle Report lists
the “Driver’s Name†as “Prigmore, Thomas†and states: “[Suspect] was seen on video entering the
yard of [the irrigation company]. This
was reported as a burglary. [Suspect]
fled from officers [at a] high rate of speed . . . . [Suspect] and passenger fled from vehicle and
were located [and] taken into custody.â€
The appellate record does not
suggest the officer who completed the CHP 180 Vehicle Report based
identification of defendant as the driver solely on the statements of Smith as
opposed to, e.g., the position of the stopped truck and the direction in which
each suspect fled. The officer did not
reveal their methodology; and Deputy Hill, who obtained Smith’s statement, did
not report that he had conversed with the officer before the latter prepared
the CHP 180 Vehicle Report.
Thus, the record does not suggest
that the CHP 180 Vehicle Report is inadequate to corroborate the statements of
Smith. Former counsel’s failure to
pursue the issue of who was driving the truck could not have been
prejudicial. ( ADDIN BA xc <@$cs> xl 45 s
GFNRMC000010 xhfl Rep xpl 1 People
v. Whalen, supra, 56 Cal.
4th at p. 55; ADDIN
BA xc <@$cs> xl 58 s GFNRMC000003 xhfl Rep xpl 1 People v. Breslin, supra,
In light of the CHP 180 Vehicle
Report, which appears to reflect an unbiased analysis of the offenses, defendant
cannot show prejudice from the trial court’s exclusion of his self-serving
statement to his original counsel (public defender) that he was not the driver
of the truck. New counsel made an offer
of proof that the public defender “would testify that [defendant] told him [in]
no uncertain terms that he was [not
remarking it did not “even know if that is relevant.†There is no reasonable probability the court would
have rejected the CHP 180 Vehicle Report in favor of defendant’s statement to
his public defender.
Defendant complains that former
counsel “never ascertained . . . what . . . relationship
[defendant] had, or did not have, with the owner of the [truck], and whether
the owner had authorized [him] or [Smith] to use the [truck].†But these facts remain unknown on
appeal. Defendant does not explain how
the unknown facts could have affected his decision to enter his plea. No prejudice appears.
Defendant’s
Medical Condition
Defendant claims medication he was
taking one month following his dog bite injury rendered his plea less than
knowing, intelligent, and voluntary. The
record contains only defendant’s self-serving testimony that he “didn’t quite
understand what was going on†at the plea proceeding because of the
medication. The trial court was not
required to accept that testimony.
At the plea proceeding, there was no
indication that defendant did not understand what was happening. Defendant said it was his decision to accept
the plea offer, and the record shows it was a favorable offer given defendant’s
potential exposure. At the hearing on
the motion to withdraw the plea, defendant admitted he had told the court that
he understood the charges, that he was pleading voluntarily, and that no
threats or promises had been made to him outside the plea agreement. Defendant could not explain why, at the time
of the plea, he had assured the court that he understood what was going on even
though, as he later claimed, he did not understand because of the speed of the
proceedings and the effect of his medication.
In denying the
to withdraw the plea, the trial court impliedly found
that defendant’s claim to have not understood the proceedings was not
credible. Substantial evidence supports
the implied finding, and this court must adopt the implied finding as its
own. ( ADDIN BA xc <@$cs> xl 58 s
GFNRMC000003 xhfl Rep xpl 1 People
v. Breslin, supra, 205 Cal.App.4th at pp. 1415-1416.) The motion to withdraw the pleas was properly
denied.
II
Modification
of the Judgment
In its oral pronouncement of fines
and fees, the trial court stated, “[t]he fine is $442, you can make payments on
that when you get out; there’s a $240 probation revocation fine, which is
stayed.â€
The clerk’s minutes state that
defendant is to pay a $240 restitution fine plus $24 administrative fee ( ADDIN BA xc <@osdv> xl 8 s
GFNRMC000029 xpl 1 l "§ 1202.4" § 1202.4), a
$240 restitution fine suspended unless probation is revoked ( ADDIN BA xc <@osdv> xl 9 s
GFNRMC000030 xpl 1 l "§ 1202.44" § 1202.44),
an $80 court operations fee ( ADDIN BA xc <@osdv> xl 22 s
GFNRMC000031 xpl 1 l "§ 1465.8, subd. (a)(1)"
§ 1465.8, subd.
(a)(1)), and a $60 court facilities assessment ( ADDIN BA xc <@st> xl 18 s
GFNRMC000011 xpl 1 l "Gov. Code, § 70373"
Gov. Code,
§ 70373).
Defendant correctly notes that the
the $442 orally pronounced by the trial court.
We shall modify the judgment accordingly.
DISPOSITION
The judgment is
modified to impose a $240 restitution fine plus $24 administrative fee, a $240
restitution fine suspended unless probation is revoked, an $80 court operations
fee, and a $60 court facilities assessment.
As so modified, the judgment is affirmed.
BLEASE , J.
We
concur:
RAYE , P.
J.
BUTZ ,
J.
name="_ftn1" title="">[1] Further statutory references are to the ADDIN BA xc <@ost> xl 10 s
GFNRMC000013 l "Penal
Code" Penal Code unless
otherwise indicated.
name="_ftn2" title="">[2] Because the matter was resolved by plea and
defendant waived referral to the probation department, our statement of facts
is taken from the police reports.
