P. v. Watkins

Filed 9/28/06 P. v. Watkins CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

In April 2004, appellant pled guilty to one count of first degree robbery and admitted one prior prison commitment in exchange for the dismissal of another charge and other prison term allegations. In October 2004, he filed a motion to withdraw that plea on the basis of allegedly newly-discovered evidence. That motion, and a subsequent verbal motion by his counsel to withdraw as counsel, were both denied. This appeal is from those denials. We affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

According to testimony adduced at a preliminary hearing held on November 5, 2002, on the morning of October 6, 2001, the alleged victim, Mr. Chim Win, was trying to park his limousine, a Lincoln Towncar, on Ellis Street in San Francisco when he was accosted by appellant. Appellant entered the car via the front passenger door and, according to the victim, “grabbed my neck, and with one hand he grabbed something out of his pocket and pointed [it] to my side . . . . Appellant then demanded that the victim give him “all your money.” Win gave him over $70 from his pocket. Win testified that he was scared, because appellant was “much bigger than I am,” and that appellant then pulled or pushed him into the back seat of the cab and said: “Don’t do anything wrong or I am going to blow your head off.” According to Win, appellant then took his cellphone, exited the vehicle, and went into a nearby Tenderloin area hotel. Win called the police from a nearby restaurant and, within a short period of time, they found appellant in the hotel he had entered and arrested him. To the police, Win identified appellant as his assailant and also identified the cellphone found on appellant as his.

A two-count complaint was filed against appellant on October 10, 2001, but no preliminary hearing was held until November 5, 2002, because of numerous continuances and changes of counsel representing appellant. At the conclusion of the preliminary hearing, the court allowed further briefing on the limited issue of whether the vehicle involved was or was not a taxicab for purposes of the application of Penal Code section 212.5, subdivision (a),^[1] the statute cited in count one of the complaint.

On December 4, 2002, the court issued its order finding sufficient cause. On December 17, 2002, the San Francisco District Attorney filed a two-count information against appellant. The first count charged first degree robbery (§ 212.5, subd. (a)) and also alleged that this offense was a serious felony within the meaning of section 1192.7, subdivision (c)(19). In count two, appellant was charged with making terrorist threats in violation of section 422; the information charged that this, also, was a serious felony within the meaning of section 1192.7, subdivision (c)(38). As to both counts, the information charged that appellant had suffered (1) five prior convictions within the meaning of sections 667, subdivision (a)(1), and 1192.7, (2) two prior prison term convictions within the meaning of section 667.5, subdivision (b), and (3) five prior convictions within the meaning of sections 667, subdivisions (d) and (e) and 1170.12, subdivisions (b) and (c).

On December 18, 2002, appellant pled not guilty to both counts and denied the various allegations.

There followed, unfortunately, 18 months of delays triggered by (a) appellant’s motion (ultimately denied) under section 995 to set aside the information, (b) numerous defense motions to continue the hearing on that motion, and (c) multiple court-ordered continuances of the trial date. That date was eventually set for March 25, 2004.

Jury selection finally started on March 30, 2004. After three days of jury selection, on April 6, 2004, appellant elected to change his plea. Pursuant to a negotiated disposition of the case, he pled guilty to the first count (first degree robbery) and admitted that he had suffered one prior conviction within the meaning of sections 667, subdivisions (a)(1) and (d) and 667.5, subdivision (b). The indicated sentence was 18 years in state prison. In exchange for the plea the remaining count and enhancements were dropped.

Numerous continuances of appellant’s sentencing hearing were then asked for and granted. On October 29, 2004, shortly before that hearing was finally to occur, appellant filed a motion to withdraw his plea of guilty based on the alleged location of new witnesses to the 2001 incident. The prosecution filed opposition to the motion and it was argued to the court on November 8, 2004. The court denied the motion.

The trial court sentenced appellant on November 9, 2005. It imposed the upper term of six years on count one, doubled it pursuant to section 667, subdivision (e), added five years pursuant to section 667, subdivision (a), and one year pursuant to section 667.5, subdivision (b), for a total of 18 years. At the same hearing, it also denied appellant’s counsel’s verbal motion to withdraw.

Appellant applied for and was granted a certificate of probable cause. (See § 237.5 and Cal. Rules of Court, rule 30(b).) Although his notice of appeal was untimely, by our order of March 2, 2005, we allowed its filing.

III. DISCUSSION

The first and principal issue advanced by appellant is that the trial court erred in denying appellant’s motion to withdraw his plea of guilty. However, and somewhat curiously, appellant neither cites much less discusses either the governing statute on that issue or our standard of review of a trial court’s ruling under it.

The governing statute is, of course, section 1018, which provides in pertinent part that a court may “for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.” It is elemental that, under this language the required “good cause must be shown by clear and convincing evidence.” (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1617 (Castaneda), and cases cited therein.)

Perhaps more significantly, our standard of review of a decision denying such a motion is abuse of discretion. As one of our sister courts has phrased it: “When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] On appeal, the trial court’s decision will be upheld unless there is a clear showing of abuse of discretion. [Citations.] An abuse of discretion is found if the court exercises discretion in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice. [Citation.]” (People v. Shaw (1998) 64 Cal.App.4th 492, 495-496; see also, Castaneda, supra, 37 Cal.App.4th at p. 1617; People v. Mickens (1995) 38 Cal.App.4th 1557, 1561, and cases cited therein.)

We have no difficulty in finding no such abuse of discretion in the present case. Among other things, in deciding to deny the motion to withdraw the plea, the trial court could well have been influenced by:

1. The delay in bringing the motion. Appellant recited, in his trial court declaration in support of his motion to withdraw his plea, that he was aware of both of the alleged helpful witnesses over two years earlier, i.e., in 2002, when he was represented by a deputy public defender. Notwithstanding this, he never mentioned these two alleged witnesses to his 2004 counsel until “discussions around the time of and after the plea [when he told him] things might have been different had they been found earlier, but now they were lost.”

Appellant offers no explanation for this two-plus year lapse, other than his “impression” that the two alleged witnesses “who were ‘street’ people, simply could not be found.” This is clearly not satisfactory, because a section 1018 motion must be “seasonably made.” (Castaneda, supra, 37 Cal.App.4th at p. 1617; see also People v. Francis (1954) 42 Cal.2d 335, 337-338.)

2. The abbreviated and weak evidence of a different version of events. Perhaps more importantly, the belated explanation to the court by appellant and his final trial counsel hardly met the “clear and convincing” standard required. No declarations or even written statements by the two “street people” were presented to the trial court. Rather, the initial statement of one of the alleged witnesses to an investigator employed by defense counsel was that she had “no knowledge of the case.” Later, however, she allegedly left a taped message for that investigator to the effect that she had observed “the charged incident from across the street.” All the trial court was told about her observations was that when appellant “tried to exit [the limousine], Win wrestled with him.”

The second alleged witness, identified by appellant as a “street prostitute in the Tenderloin,” provided only a “telephone statement” to appellant’s final trial counsel. All that the trial court was told about that statement by that counsel was that the alleged witness said she saw appellant “being attacked by the limousine driver.”

As the trial court properly observed,^[2] at the absolute maximum the only things these truncated second and third-hand summaries of witness statements do is confirm that there was an altercation between Win and appellant in the Tenderloin on the morning of October 6, 2001. They do not even approach the “clear and convincing” standard required to discount both the sworn testimony of Win given at the preliminary hearing and appellant’s plea of guilty----after, of course, he was given all the required advisement.

3. Win’s cellphone. Finally, nothing in either the abbreviated summaries of the statements of the two alleged witnesses, in appellant’s motion to the trial court, or in his briefs to us, explains a fact in the record that strongly reinforces the version of events testified to at the preliminary hearing by Win: that the police who arrested appellant in a nearby Tenderloin hotel recovered Win’s cellphone from appellant’s person.

4. Other matters. The trial judge presiding at the November 8, 2004, hearing on the motion to withdraw appellant’s plea was the same one who presided over the start of trial, i.e., the jury selection, and then heard and accepted appellant’s negotiated guilty plea seven months earlier, on April 6, 2004. He had the benefit, if that is the right term, of knowing appellant’s extensive criminal record. We are aware of no reason the trial court could not take that record into account in considering both the potential value of the allegedly newly-discovered evidence and, thus, the merits of the motion itself.

For all of these reasons, there was no abuse of discretion in the trial court’s denial of appellant’s motion to withdraw his plea of guilty.^[3]

We reach the same conclusion with regard to the denial of the motion of appellant’s final trial counsel to withdraw as counsel and to appoint new counsel. This motion, made hastily and verbally at the beginning of the November 9, 2004, sentencing hearing, was not supported by any declaration of either that counsel or appellant regarding any alleged ineffective assistance of counsel. Indeed, there was no evidence, written or verbal, that appellant desired to have new counsel. The trial court did not, therefore, abuse its discretion in denying the motion.

IV. DISPOSITION

The judgment is affirmed.

_________________________

Haerle, J.

We concur:

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Kline, P.J.

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Lambden, J.

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^[1] All subsequent statutory references are to the Penal Code.

^[2] The trial court had, clearly, examined the moving papers filed by appellant on this issue. It observed, correctly in our view, that the two new witnesses’ potential testimony “is not inconsistent with what has been charged in this case” because it simply indicated that “there was some physical interaction between [appellant] and the alleged victim.” (RT of 11/8/04, p. 3.)

^[3] Nothing in People v. Ramirez (2006) 141 Cal.App.4th 1501, brought to our attention by appellant after the close of briefing, changes anything we have said above. In that case, the appellate court found an abuse of discretion in a trial court’s denial of a defendant’s motion to withdraw a plea of no contest after it was discovered that the police had issued a supplemental report containing evidence favorable to the defendant but the prosecution had not provided that report to the defendant or his counsel. Nothing remotely like that is present in this record.