P. v. Young

Filed 3/20/06 P. v. Young CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Paul A. Vortmann, Judge.

Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and John G. McLean, Supervising Deputy Attorney General, for Plaintiff and Respondent.

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In this timely appeal, Daniel Robert Young challenges the trial court's denial of his motion to withdraw his plea of no contest to second degree murder. We will affirm.

PROCEDURAL HISTORY

On September 24, 2004, an information was filed in Tulare County Superior Court, charging Young with murder (Pen. Code,^[1] § 187, subd. (a); count 1) and assault causing the death of a child under age eight (§ 273ab; count 2).^[2] On February 7, 2005, Young entered into a plea agreement whereby he pled no contest to count 1, with a specification of second degree murder, upon condition that count 2 be dismissed at the time of sentencing. In the course of changing his plea, Young said he did not need more time to talk to his attorney, Mr. Rendahl.

On or about February 10, 2005, Young submitted a written request for a Marsden hearing.^[3] Young's stated grounds included ineffective assistance of counsel and improper advice of counsel. At the hearing, which took place on March 2, Young claimed that, at the time he changed his plea, he did not realize that if he took the case to trial and lost, he would only be facing 10 additional years.^[4] Young related that Rendahl told him it would be in his best interest to accept the plea, and that he would have a good chance in a few years to make parole. However, Rendahl never informed him that it had been years since anyone had been paroled from a life sentence. When he subsequently told Rendahl that he wanted to withdraw his plea, Rendahl agreed that 15 years to life was not much of deal when Young was facing 25 years to life, and also said he felt he could have beaten the charges had the case gone to trial. When Young asked why Rendahl did not tell him this prior to the change of plea, Rendahl did not respond.

When questioned by the court, Rendahl related that he had tried for some time to get the prosecutor to consider offering manslaughter, but finally managed to obtain an offer of second degree murder. In conveying the offer to Young, he explained that, although he did not believe the prosecutor could prove first degree murder, the problem was count 2, which carried the same penalty. In Rendahl's assessment, some of Young's conduct (such as giving different versions of events and fleeing the scene) could be interpreted as indicating consciousness of guilt; moreover, he eventually confessed to the elements of assault on a child causing death.^[5] Rendahl told Young that it would be almost impossible to beat that count at trial and that, although a sentence of 15 years to life was not much different from a sentence of 25 years to life, it was 10 years less, plus someone convicted of second degree murder would have a better chance of getting parole and would have to serve a much shorter term before reaching the parole date. Rendahl also related that he had been counting on testimony from the baby's family to support the defense case that what happened was an accident, but the family members were totally against Young. When informed that Young wanted to withdraw his plea, Rendahl visited him in jail and told him that, although a sentence of 15 years to life for second degree murder was not a great deal, it was a good deal in relation to a sentence of 25 years to life on count 2. Rendahl believed he also told Young that they probably could have won on count 1, but would not have had much of a chance on count 2. When Young reiterated that he still wanted to withdraw his plea, Rendahl filed the motion for him.^[6]

The trial court determined that, objectively, Rendahl gave Young excellent representation and good advice. Subjectively, however, Young had lost confidence in Rendahl's ability to keep his interests in mind with respect to this case. In light of the importance of the attorney-client relationship and a client's confidence in his or her attorney, the court ruled that the relationship had broken down, thus eliminating effective communication and representation of the client. Accordingly, the court granted Young's request and appointed new counsel to represent him in conjunction with the motion to withdraw his plea and sentencing, if the motion was denied, or trial if it was granted.

New defense counsel, Mr. Olmos, filed Young's written declaration in support of the motion to withdraw his plea. In it, Young stated that Rendahl did not explain to him his available options and defenses or the penalties he faced on counts 1 and 2; and did not inform him, prior to the change of plea, that he had found a witness who could provide Young with a defense if he went to trial. Young represented that he only learned about this witness after he entered the plea. At the hearing on the motion, Olmos focused on the third claim and reiterated that, according to Young, Rendahl told him there was a witness who could give him a defense to this case. Young had no information about the witness, other than that it was someone related to the victim's mother. Olmos argued that if indeed Young was not told about this witness until after he changed his plea, then it was questionable whether he voluntarily and freely entered his plea since there was a chance he did not have all of the pertinent information available to him. Olmos argued that Young should have the opportunity to investigate and interview the witness. The prosecutor responded that the transcript of the change of plea hearing, which the court had reviewed, showed Young was asked whether he had had sufficient time to talk to his attorney and whether he had been apprised of his potential defenses, and both Young and Rendahl concurred in the change of plea.

The court denied Young's motion to withdraw the plea. It found that the transcript clearly showed that Young indicated he had had sufficient time to talk to Rendahl and that there was a factual basis for the plea, and that no mention was made of any witness. The court noted that the only mention of the witness was in Young's declaration; Young's mere statement that he believed there was another witness was insufficient to meet the burden required for withdrawal of a plea. The court then proceeded to sentence Young to 15 years to life in prison on count 1. Young subsequently appealed and obtained the requisite certificate of probable cause. (§ 1237.5; People v. Manriquez (1993) 18 Cal.App.4th 1167, 1170.)

DISCUSSION

Young contends that, having granted his post-change-of-plea Marsden motion, the trial court abused its discretion by failing to follow that ruling to what he sees as its natural conclusion, i.e., granting his motion to withdraw his plea. He perceives the trial court's Marsden ruling as an implicit finding that he was operating under mistake, ignorance, or other factors overcoming his exercise of free judgment. We disagree.

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