P. v.Thompson
Filed 9/6/13 P. v.Thompson CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSEPH EMMANUELL THOMPSON,
Defendant and Appellant.
D061766
(Super. Ct.
No. SCD235417)
APPEAL from
a judgment of the Superior Court
of
County, Charles R. Gill, Judge. Affirmed.
Julie
Feldstein Puleo for the Defendant and Appellant under appointment by the Court
of Appeal.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Assistant
Attorneys General, William M. Wood, Ifeolu E. Hassan, Deputy Attorneys General
for the Plaintiff and Respondent.
Joseph Emmannuell Thompson pleaded guilty to
496d), and now appeals the denial of his motion to withdraw his plea. Thompson contends the court abused its
discretion in denying the motion because (1) his plea was coerced and offered
as a package deal with that of his codefendant brother, Michael Thompson;
and (2) he received ineffective assistance of counsel, who failed to advise him
fully of the consequences of his plea and improperly negotiated it in the
presence of Michael and Michael's counsel.
We affirm the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
name="_ftnref3" title="">[3]
In June
2011, two detectives assigned to a San Diego
County regional task force
conducted an operation to investigate auto theft. The detectives met with Thompson, Michael,
and Miguel Lange to arrange the purchase of stolen motorcycles that Lange said
were stored at Michael's residence.
Thompson was within hearing range when Lange said this. During the meeting, a detective overheard
Thompson arguing with Lange about his payment.
The detective testified at the grand jury proceedings that participants
in auto theft schemes commonly demand payment during a sale.
During grand jury proceedings, the
prosecutor asked a detective whether Thompson had aided, promoted or
facilitated the sale of the two motorcycles.
The detective responded in the affirmative, explaining that Thompson
drove the pickup that delivered the motorcycles, accepted the detective's
money, admitted selling items that he had stolen from nonprofit organizations,
and offered to sell stereo equipment to the detective.
In August
2011, the grand jury indicted Thompson, Michael, and Lange for
(Veh. Code, § 10851 subd. (a)), and selling a stolen vehicle (Pen. Code, §
496d).
In October 2011, the prosecutor
negotiated a package deal for Thompson and Michael. On Thompson's plea form, he pleaded guilty to
"wrongfully aid[ing] and abett[ing] another in the possession of a stolen
vehicle." The plea form also
documents the prosecutor's offer and the court's indicated sentence: "Dismiss balance [of charges]. N.O.L.T.
Court in chambers commits to felony court probation." The court reviewed the plea with Thompson,
confirmed he understood his rights, and accepted his plea. The court asked Thompson, "Do you
understand that by pleading guilty, the maximum penalty that can be imposed is
three years imprisonment, a fine of up to $10,000, being placed on parole for
up to four years?" Thompson
replied, "Yes, sir, I do." The
court then asked, "Mr. Thompson, you've been charged . . . with buying, receiving,
concealing, selling or withholding a stolen vehicle . . . . How do you plead to that charge?" Thompson replied, "I plead guilty, your
honor."
At a
February 2012 hearing, Thompson moved to withdraw his plea and replace his
counsel. Thompson alleged in his
declaration supporting his motion that during plea negotiations, his attorney
and Michael's attorney sat on either side of him and "bombarded [him] with
a guilt trip about [his] brother's case and how [he] needed to save [his]
brother from spending 25 to life in prison," and instead get his brother a
"[five]-year deal." Thompson
testified that "it was [his] understanding that the only way through this
was for [him] to take a plea and for [his] brother to take a plea." Thompson explained that during plea
negotiations he was told that a videotape showed he did not steal the
motorcycles. However, he continued,
"[B]ecause of my past [criminal] record and because I did deliver the
motorcycles that that would be the question" if the matter proceeded to
trial. According to Thompson, his
attorney failed to explain: "what evidence the prosecutor would have to
present at trial to establish that [Thompson] aided and abetted the theft by
[his] brother"; "that [Thompson] had defenses to the charges";
and that the acronym N.O.L.T.—not opposed to local time—meant a defendant may
spend more time in custody.
Thompson's
attorney testified at the motion hearing:
"I made notes of our discussion.
. . . And I see where I said to
him 'NOLT, in caps, as an acronym.' It
doesn't say in my notes that I then said, 'Here's how it breaks down,' but I
can tell you that my standard protocol is to be very, well, pedantic, really,
about it. I say, 'This is an acronym,
N-O-L-T, not opposed to local time.' And I usually go through that little song and
dance with them so they do understand it.
[¶] Mr. Thompson seemed a little
more savvy to the lingo, so in his case I might not have—it's possible, I don't
think I would have done that, but it could have happened."
The court
denied Thompson's motion, stating:
"There has been no credible evidence . . . to show good cause to
allow Mr. Thompson to withdraw his plea.
. . . I believe at the time the
plea was taken Mr. Thompson fully understood his rights, he voluntarily waived
those rights, and he pled guilty to the charge.
I believe there wasn't any coercion or confusion, and there was no
evidence to support that in fact there was." The court sentenced Thompson to three years
summary felony probation.
DISCUSSION
I.
Thompson
contends the court abused its discretion by denying his motion to withdraw his
guilty plea, which was not knowing, voluntary, and intelligent because his
attorney, his brother, and his brother's attorney coerced him into accepting
the package deal, and he did not understand the meaning of
"N.O.L.T." We review a trial
court's decision to deny a motion to withdraw a guilty plea for abuse of
discretion. (People v. Holmes (2004) 32
Cal.4th 432, 442.)
The
California Supreme Court has held that a package deal "is not
intrinsically coercive, [but] it may be so under the individual
circumstances. Unless counsel was aware
of particular coercive forces, the decision to urge his client to accept such a
plea bargain would be untainted." (
283-284 (Ibarra), disapproved on
other grounds in People v. Howard
(1992) 1 Cal.4th 1132, 1175-1178.) The
for determining whether a defendant freely, voluntarily, and intelligently
agreed to a package deal are: (1)
whether the inducement for the plea was proper; (2) the factual basis for the
plea; (3) the nature and degree of coerciveness; and (4) any other relevant
factors, including whether the prosecutor's leniency to the codefendant
substantially influenced the defendant's decision to plead guilty. (Ibarra,
at pp. 289-290.)
Applying these factors, we conclude
the trial court did not abuse its discretion.
First, the inducement for the plea was proper because the grand jury
testimony supported the prosecution's charges against Thompson. Furthermore, the prosecution had a
"reasonable and good faith case against" Michael. (Ibarra,
supra, 34 Cal.3d at p. 289.) The evidence showed Michael played a more
substantial role in the crimes than Thompson. Thompson does not contend the prosecution
misrepresented or withheld facts germane to his decision to plead guilty. We conclude the first factor does not support
withdrawal of the plea.
Second, the
detectives' grand jury testimony provided a strong factual basis for a
conviction; therefore, Thompson had an incentive to accept the plea. Thompson was present at the meeting between
the codefendants and detectives, and sought payment on the spot. Thompson offered to sell the detectives other
stolen property. Additionally, the
prosecution's lenient offer was that Thompson serve probation rather than the
maximum sentence of three years in prison.
We conclude this factor weighs against withdrawal of Thompson's plea.
Third, we
accept at face value Thompson's claim that the presence of Michael and his
counsel during Thompson's plea negotiations influenced Thompson's decision to
accept the guilty plea. Thus we conclude
this factor weighs in Thompson's favor.
Fourth, in
evaluating whether the prosecutor's leniency to the codefendant was a "substantial factor"
influencing his decision to plead guilty, we think this factor weighs in
Thompson's favor based on his claim that his brother's lawyer and his own lawyer
"bombarded him with a guilt trip" about saving his brother from
having to spend 25 years to life in prison and instead, get his brother a
five-year sentence.
But Ibarra also instructs us that "Other factors, which may be
relevant can and should be taken into account at the inquiry. For example, the age of the defendant, . . .
whether the defendant or the prosecutor initiated the plea
negotiations." (
that regard, we note that Thompson was 54 years old when he changed his
plea. Further, his counsel indicated that
Thompson was familiar with the process of plea bargains, noting that Thompson
"seemed a little more savvy to the lingo." Indeed, Thompson has a long criminal record
dating from 1979, and it includes plea bargains. Moreover, when the trial court accepted the
plea, it specifically asked Thompson whether anyone had threatened him into
taking the deal. Thompson answered in
the negative. Finally, Thompson had
other motives that could have influenced him to plead guilty; specifically, his
concern that his criminal record would be a detriment at trial.
Under the
totality of the circumstances, we conclude the trial court did not abuse its
discretion in denying Thompson's motion to withdraw his guilty plea. Although we grant Thompson the benefit of his
claims that the presence of Michael and Michael's counsel factored into his
decision to accept the plea, and that the promised leniency to his brother was
a significant consideration in his accepting the guilty plea, other factors
outweigh those considerations and support the trial court's exercise of its
discretion to deny the withdrawal motion.
II.
Thompson
contends his attorney provided constitutionally ineffective assistance because
Thompson did not understand the meaning of "N.O.L.T." and his
attorney only met with him twice, then pressured him to accept the plea
bargain.
To prove
ineffective assistance of counsel, a criminal defendant must show the
attorney's performance did not meet an objective standard of reasonableness
under prevailing professional norms; and the deficient performance prejudiced
the defendant. (Strickland v.
Washington (1984) 466
U.S. 668, 691-692 (Strickland); see
also People v. Ledesma (1987) 43
Cal.3d 171, 214-218.) "If counsel's
acts or omissions appear to result in defendant's entering a plea under the
influence of 'mistake, ignorance or inadvertence or any other factor
overreaching defendant's free and clear judgment' which would justify
withdrawal of his plea, he was ineffectively represented by counsel." (People
v. Hunt (1985) 174 Cal.App.3d 95, 104.)
"[A] court need not determine whether counsel's performance was
deficient before examining the prejudice suffered by the defendant as a result
of the alleged deficiencies." (Strickland
697.)
Additionally,
"[A] reviewing court must adopt the trial court's factual findings if
substantial evidence supports them."
(People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) The trial court found "
cause to allow Mr. Thompson to withdraw his plea." We conclude that substantial evidence shows
Thompson knowingly, voluntarily, and intelligently agreed to the plea
bargain: Thompson indicated that he
understood his rights when the court accepted the plea. When he alleged coercion at the second
hearing regarding withdrawal, he did not ask about "N.O.L.T." until
after signing the plea deal. Further, he
did not establish that his attorney had failed to advise him of the meaning of
N.O.L.T. Accordingly, assuming
Thompson's attorney had provided ineffective assistance, Thompson cannot show
prejudice under Strickland.
"In determining whether or not
a defendant who has pled guilty would have insisted on proceeding to trial had
he received competent advice, an appellate court also may consider the probable
outcome of any trial, to the extent that may be discerned." (In re
Resendiz (2001) 25 Cal.4th 230, 254.)
If Thompson had elected to proceed to trial and made out a valid claim,
he could have obtained severance of his case from his brother's case. Moreover, if Thompson had declined the plea
bargain and proceeded to trial, he likely would have been convicted of aiding
and abetting the theft of the motorcycles, based on the strong evidence against
him, as noted. Finally, the record shows
Thompson recognized that his criminal history would have undermined his
credibility in a trial. Therefore, on
this record, Thompson fails to persuade us that, absent his counsel's
challenged actions, it is reasonably probable Thompson would have forgone the
lenient plea agreement in favor of proceeding to trial.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
HALLER, Acting P. J.
AARON, J.
name="_ftn1" title="">[1] All statutory references are to the Penal Code unless
otherwise stated.
name="_ftn2" title="">[2] We will refer to Michael Thompson by his first name to avoid
confusion.
