PEOPLE v. SANDOVAL

Filed 6/7/06

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Melinda Lasater, Judge. Reversed and remanded with directions.

Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary Schons, Assistant Attorney General, Lilia E. Garcia and Janelle Marie Boustany, Deputy Attorneys General, for Plaintiff and Respondent.

I.

INTRODUCTION

Steven Sandoval Jr. pled guilty to one count of voluntary manslaughter (Pen. Code,^[1] 192, subd. (a)), and admitted having incurred a prior serious felony conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and a prior strike conviction (§§ 667, subds. (b)-(i), 1192.7, subd. (c)(23)), pursuant to a plea agreement that provided for a stipulated sentence of 27 years in state prison. Before he was sentenced, Sandoval filed a motion to withdraw his guilty plea on the ground that his plea had not been a product of his own free will. Sandoval claimed that one of his codefendants had threatened to harm him in prison if he refused to plead guilty, and that the trial judge had improperly pressured him to plead guilty. The trial court denied Sandoval's motion to withdraw his guilty plea and sentenced him to 27 years in prison.

On appeal, Sandoval claims that the trial court erred in denying his motion to withdraw his guilty plea. Sandoval also contends that the trial court erred in sentencing him pursuant to the Three Strikes Law because the People did not allege in an information that he had suffered a prior strike conviction.

We conclude that the trial court abused its discretion in denying Sandoval's motion to withdraw his guilty plea. We also conclude that the People adequately amended the information to allege that Sandoval had suffered a prior strike conviction. We reverse the judgment and remand the case to the trial court with directions to allow Sandoval to withdraw his guilty plea.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The charged crime^[2]

On September 22, 2003, Michael Owens was stabbed to death in a park in Chula Vista. Sandoval was later identified in a live line-up as one of several gang members who had confronted Owens and his friends just prior to the stabbing.

B. Procedural background

On September 15, 2004, the People filed a five-count information charging Sandoval and three codefendants, Eric Damian Esparza, Jeffrey Daniel Mesa, and Jesse Pantoja^[3] with murder (§ 187, subd. (a)) (count 1), robbery (§ 211) (count 2), participating in a criminal street gang (§ 186.22, subd. (a)) (count 3), and two counts of battery committed for the benefit of a criminal street gang (§§ 242, 186.22, subd. (d)) (counts 4 and 5).

On September 28, all four defendants pled guilty. Sandoval pled guilty to one count of voluntary manslaughter (§ 192, subd. (a)) and admitted having incurred a prior serious felony conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and a prior strike conviction (§§ 667, subds. (b)-(i), 1192.7, subd. (c)(23)), pursuant to a plea agreement that provided for a stipulated sentence of 27 years in state prison.

Prior to sentencing, Sandoval filed a motion to withdraw his guilty plea. The trial court held a hearing on Sandoval's motion to withdraw his guilty plea. At the conclusion of the hearing, the court denied Sandoval's motion and sentenced him to 27 years in prison.

Sandoval timely filed a notice of appeal and a request for a certificate of probable cause to appeal. The trial court issued a certificate of probable cause to appeal.

III.

DISCUSSION

A. The trial court abused its discretion in refusing to allow Sandoval to withdraw

his guilty plea

Sandoval claims the trial court erred in refusing to allow him to withdraw his guilty plea.

1. Factual and procedural background

a. Sandoval's initial refusal to enter into a "package deal" plea agreement

A jury trial was scheduled to commence in this case on September 15, 2004. Between September 15 and September 28, the trial court heard various pretrial motions, conducted an evidentiary hearing, had exhibits marked for trial, and began to conduct voir dire of potential jurors.

On the morning of September 28, the trial court indicated on the record that the People wanted to conduct an Alvernaz waiver^[4] for each defendant. The prosecutor stated that if defendants Pantoja and Esparza were found guilty as charged, the maximum term of imprisonment for each of them would be 71 years to life, and noted that the current plea offer as to each of these defendants was 16 years in prison. The prosecutor stated that Sandoval and Mesa were each facing a maximum term of imprisonment of 110 years to life, and that each had been offered 27 years in prison. The prosecutor explained that the current offers were a "package deal," meaning that the People would agree to enter into the plea agreement only if all four defendants agreed to accept the offers.

The trial court inquired of each defendant's attorney whether his or her client was amenable to entering into the plea agreement. The attorneys for Pantoja, Esparza and Mesa stated that their respective clients wanted to enter into the plea agreement. Sandoval's attorney, Liesbeth Vandenbosch, indicated that Sandoval did not want to plead guilty. The attorneys for Pantoja, Esparza, and Mesa said that because the offers were part of a package deal and Sandoval did not want to accept the offer, their clients could not accept the plea offers that had been made to them.

Esparza's attorney, Paul Neuharth, requested that the trial court inquire of each of the defendants, personally, whether he wished to accept the plea bargain. The court agreed to do so. Pantoja, Esparza, and Mesa all said that they wanted to accept the plea bargain. When the court asked Sandoval whether he wished to accept the offer, Sandoval stated, "I wish not to take that deal." In response, the trial judge stated:

"Okay. We'll go to trial. [¶] The record should be clear this is an offer that I think on the face of it is real clear that it is a very good offer. [¶] So, we go to trial. [¶] Okay. Thank you, very much. Anything else we can do? I can't twist Mr. Sandoval's arm. I don't think anybody should or could."

Mesa's attorney, Bernard Skomal, commented, "The only problem is [Sandoval is] drawing three other people in who do want to take the deal . . . . So that the record is clear, that when a person dies, there's a homicide case, the offer, when the determinate sentence is in the 20's, it is not a good deal, it is a very, very good deal." The trial judge responded, "Oh, yes. But the catch is, I mean, assuming for the moment ─ I'm going to assume, based on the transcript, this is gang activity. They're choosing to stick together in the sense of that's the culture." The judge continued, stating that although each of the defendants could go to the prosecutor and indicate his willingness to testify, the defendants were apparently not willing to do so because of their gang culture. The judge stated, "They're going to stick together; they're going to stand behind him. That's the way it is. [¶] That's okay. And Mr. Sandoval wants a trial, we'll give him his trial. [¶] I mean I have sympathy for the others, but that's . . . ."

Pantoja's attorney, Thomas Ochs, interrupted the court to request that the court explore whether the prosecutor would consider "breaking up the package deal," if the defendants were willing to testify at trial. The judge responded, "Maybe the D.A. will consider that. [¶] I mean, going to trial on one is a lot shorter than going to trial on four." The prosecutor expressed a willingness to explore this possibility in separate chambers conferences with each defendant's attorney and the court.

b. The chambers conferences

The trial judge held four consecutive chambers conferences with the attorneys for each defendant and the prosecutor. At the conferences, the participants discussed whether there was anything that could be done either to encourage Sandoval to accept the plea offer or to persuade the prosecutor to allow the other defendants to plead guilty in exchange for their testimony. During the conference with Attorney Ochs, the trial judge asked the prosecutor, "If all three of the other defendants decided they're willing to testify, does that change things, or are we going down a road that's not really realistic?" At the conference with Attorney Skomal, the judge stated, "I don't know if there is anything I can say that is appropriate other than what I did say. I admit I was sort of tiptoeing through saying how wonderful the offer was." During the conference with Attorney Neuharth, Esparza's attorney, the judge stated, "[I]s there anything you can see that I could do?" The judge agreed with Attorney Neuharth's observation that "the court is in a difficult position of trying to make any defendant enter a plea."

At the chambers conferences, the judge attempted to gain an understanding of why Sandoval was refusing to accept the offer. The judge discussed with the prosecutor and Attorney Skomal, Mesa's attorney, whether or not Sandoval's defense counsel had advised him to accept the offer. The judge also expressed her belief that Sandoval was being selfish in insisting on going to trial. When Attorney Skomal stated that his client had attempted to encourage Sandoval to accept the plea offer, the judge stated, "So much for looking out for your fellow gang members."

The trial judge also expressed her view that the People probably believed that Sandoval was the actual killer. In addition, the judge stated that she was willing to tell the defendants that "there is more than ample evidence to support a conviction" as to all of them. Apparently recognizing that such a statement might be coercive, the trial judge added, "I think I can say that."

During the conference with Attorney Vandenbosch, Sandoval's attorney, the trial judge stated, "It sound[s] like the issue is your client." The judge commented that she realized Sandoval was "firm" in insisting on a trial. Attorney Vandenbosch informed the court that she had "encouraged [her] client that this is an offer he should accept." However, Attorney Vandenbosch believed it was very unlikely that Sandoval would agree to accept the plea bargain, observing: "If anybody could have caused [Sandoval] to reflect more, it would have been the three codefendants, and it apparently is not happening. So he seems quite adamant about his position. So, I'm not hopeful . . . ."

Throughout the chambers conferences, the trial judge repeatedly expressed her belief that the package deal was "an amazing offer." The judge said that she was probably going to set a deadline of 5:00 p.m. the following day for the defendants to accept the offers, stating that her reason for imposing a deadline was that she was uncomfortable with the deal since it was so favorable to the defendants.

Near the end of the conferences, the trial judge stated, "So, I'm just not sure there's a whole lot we can do." However, in a final attempt to explore a possible tactic for resolving the case, the judge asked Attorney Vandenbosch whether it "would be of assistance" in persuading Sandoval to plead guilty if the trial court were to explain the felony-murder rule to him. Vandenbosch responded in the negative. At this point, the court concluded the conferences.

c. The court proceedings immediately prior to Sandoval's indication

that he would plead guilty

After concluding the chambers conferences, the court went on the record with all defendants present. The judge stated that she was setting a deadline of 5:00 p.m. the following day for the defendants to accept the "amazingly good offer" because she was "not particularly comfortable with it." The judge continued, observing that the "offer is exceptionally good," and "really low," in light of the evidence. The judge added that after the deadline, "I don't have to go along with [the offer]." The judge also commented, "[T]here's more than sufficient evidence for a jury to convict each and every one of the defendants."

The trial judge proceeded to explain the felony-murder rule to the defendants and told them that culpability for felony murder was an "available argument for the People." The judge then stated, "Each of the codefendants has the ability to make a decision whether they want to testify or not, both in their trial, [sic] or to plead and then testify if that were an option."

The judge clearly indicated that she sympathized with the three defendants who were willing to plead guilty but were prevented from doing so because of Sandoval's refusal to accept the offer. The court commented to the defendants that it was "sort of a sad situation that you're looking at spending your entire life in state prison," and expressed her view that Sandoval was letting down his fellow gang members by refusing to accept a sentence of 27 years in prison and insisting upon his right to a trial:

"I think maybe the three who were willing to plead are learning that maybe the gang isn't all it was cracked up to be, if someone's willing to take you down with them and you stand behind them. [¶] So despite all the voir dire about gangs having good things, they have their down sides, and 70 years in state prison, I feel for you if you're going to be spending your whole life in state prison. [¶] That's a decision that each of you have made during the course of your life. [¶] As I've said, there's nothing I can do."

Attorney Neuharth requested that the court take a five-minute recess to allow the defense attorneys time to talk with their clients, in light of the court's comments. The court stated that it would like to continue with the voir dire because the jurors were waiting, but agreed to take a five-minute recess.

d. Sandoval's guilty plea

Immediately following the recess, Attorney Skomal indicated to the trial court that all four defendants were willing to accept the plea offers. He inquired whether the court wished to continue with the voir dire at that time, or instead, take the defendants' pleas. The trial court stated that it would prefer to continue with the voir dire and take the pleas that afternoon because the court did not want to let the jury go if there were a possibility that the defendants would not actually plead guilty. Attorney Skomal then suggested that the court "get an indication" on the record of Sandoval's intention to accept the plea offer. Attorney Vandenbosch stated that Sandoval had told her he wanted to accept the plea offer.

After the noon recess, each of the defendants pled guilty. Sandoval pled guilty to voluntary manslaughter and admitted having incurred a serious felony prior and a strike prior. In exchange for Sandoval's plea, the prosecution stipulated to a sentence of 27 years in state prison.

During Sandoval's plea colloquy, the court asked him whether anyone had threatened him or any members of his family in order to get him to plead guilty. Sandoval responded in the negative. The court then asked Sandoval, "Do you feel pressured [or] that you've been pressured into pleading guilty, [that] this is isn't voluntary?" Sandoval responded, "No." The court stated, "Okay. Are you pleading guilty freely and voluntarily at this point?" Sandoval responded that he was.

e. Sandoval's motion to withdraw his guilty plea

On October 27, Sandoval appeared in court and informed the court that he wished to withdraw his guilty plea. The court appointed Attorney Joseph Cox to represent Sandoval in connection with his motion to withdraw his plea.

On December 17, prior to sentencing, Sandoval filed a motion to withdraw his guilty plea on the ground that his plea had not been a product of his own free will. In support of his motion, Sandoval claimed that during the recess immediately before he indicated his willingness to accept the plea offer, codefendant Mesa had threatened to harm him in prison if he continued to refuse to accept the offer. Sandoval also claimed that the effect of the trial judge's comments that day was to pressure him into agreeing to accept the plea offer. Sandoval requested that the trial judge recuse herself from ruling on his motion to withdraw his plea, in light of his claim that the judge had improperly pressured him to plead guilty.

In their opposition to the motion, the People claimed that Sandoval had a "case of buyer's remorse." The People maintained that the court had not improperly pressured Sandoval to plead guilty and that Sandoval's claim that Mesa had threatened him was not credible.

The trial court held an evidentiary hearing on Sandoval's motion to withdraw his guilty plea. At the beginning of the hearing, Attorney Cox asked whether the trial judge intended to recuse herself from ruling on the motion to withdraw the plea. The judge stated that she was "comfortable about being objective," and denied the recusal request.

Codefendant Mesa, Attorney Skomal and Attorney Vandenbosch all testified at the hearing. Mesa testified that during the brief recess immediately before Sandoval agreed to plead guilty, the court granted Mesa's request to have the bailiff seat him next to Sandoval so that the two could have a conversation. Mesa said that during this conversation, Mesa told Sandoval that he, Mesa, was "not going to do life" and that he threatened Sandoval, saying "if you don't sign this deal, I'm going to get [your] ass in prison." Mesa then told Sandoval, "Please don't make me do something that I don't want to do." Mesa testified that Sandoval responded that he would plead guilty "out of benefit for [Mesa]." When Attorney Cox asked Mesa whether he had threatened Sandoval's life during that conversation, Mesa responded, "Basically yes."

Attorney Skomal testified that immediately after he learned that Sandoval had agreed to plead guilty, he asked Mesa why Sandoval had changed his mind. Mesa told Skomal that he had threatened to "get [Sandoval's] ass." Attorney Skomal testified that just prior to the lunch recess on the day Sandoval pled guilty, Skomal "spoke briefly to [Attorney Vandenbosch] about checking into [Sandoval's] plea." Skomal testified that he believed he mentioned "threats, violence, something of that nature," to Attorney Vandenbosch, but that he had not gotten into specifics. Skomal testified that he took this "limited action" rather than revealing the substance of his entire conversation with Mesa because Skomal believed the statements Mesa made to him were protected by the attorney client privilege.

Attorney Vandenbosch testified that Sandoval had steadfastly insisted on proceeding to trial the entire time she represented him, from October 2003 until the morning he agreed to accept the plea offer on September 28, 2004. Although she could not recall the specific time frame, Attorney Vandenbosch testified that Attorney Skomal had expressed to her his concern that Mesa might be putting "significant pressure on Mr. Sandoval to resolve the case." Attorney Vandenbosch said on the day Sandoval pled guilty, she asked Sandoval several times before he entered his plea if he was sure he wanted to plead guilty, and that Sandoval indicated he did.

However, the day after Sandoval entered his guilty plea, he telephoned Attorney Vandenbosch and said he wanted to withdraw his plea. He told her that he had felt pressured to plead guilty. Vandenbosch told Sandoval to think about it, and to call her a week before his next scheduled court appearance, which would be in approximately four weeks. Sandoval telephoned Vandenbosch as instructed. During this conversation, Sandoval stated unequivocally that he wanted to withdraw his guilty plea and that he had been threatened by Mesa on the day he entered his plea. Vandenbosch also testified that prior to Sandoval entering his guilty plea, there had been discussions among the defense attorneys, in Sandoval's presence, concerning the fact that Mesa had been accused of organizing an attack on another inmate.

f. The trial court's ruling denying Sandoval's motion to withdraw

his guilty plea

At the conclusion of the hearing on Sandoval's motion to withdraw his plea, the trial court denied the motion. The court stated that the court's taking Alvernaz waivers, commenting that the offer was a good offer, and setting a deadline for the defendants to accept the plea offer, were not intended to pressure Sandoval into pleading guilty. The court stated that it had offered Sandoval the opportunity to say that he was feeling pressured during the plea colloquy, and noted that he had not done so. The court also commented that it believed Sandoval decided to change his plea because he recognized that the trial was actually going forward, that he did not want to spend his life in prison, and "he was participating with what was in the best interests of his gang members."

With regard to the conversation between Mesa and Sandoval during the recess immediately prior to Sandoval changing his mind and agreeing to plead guilty, the court stated that it had "absolute confidence in the testimony of Mr. Skomal and Ms. Vandenbosch." More specifically, the court said it believed Mesa had in fact told Skomal that he had threatened Sandoval. As to whether Mesa had actually threatened Sandoval, the court stated:

"Do I think maybe a comment was made along those lines? You know, I'm sure there was. I'm sure there were conversations that went on, but nothing that in any way caused [Sandoval] to really feel threatened."

2. Governing law

a. General principles applicable to a motion to withdraw a guilty plea

In People v. Weaver (2004) 118 Cal.App.4th 131, 145-146 (Weaver), this court outlined the general legal principles applicable to consideration of a defendant's motion to withdraw a guilty plea.

"A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. [Citations.] 'Section 1018 provides that . . . "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." Good cause must be shown for such a withdrawal, based on clear and convincing evidence. [Citation.]' [Citations.] 'To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.] Other factors overcoming defendant's free judgment include inadvertence, fraud or duress. [Citations.]' [Citation.] 'The burden is on the defendant to present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty.' [Citation.]

"'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.]' [Citation.] 'Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.' [Citation.]"

b. Judicial involvement in plea negotiations

The Weaver court provided a detailed discussion of the problems inherent in judicial involvement in plea negotiations. The court noted that the Federal Rules of Criminal Procedure forbid any judicial involvement in plea discussions (Weaver, supra, 118 Cal.App.4th at p. 146, citing Fed. Rules Crim.Proc., rule 11(c), 18 U.S.C.), and that the ABA Standards for Criminal Justice provide that a judge should not "ordinarily" participate in plea negotiations. (Weaver, supra, 118 Cal.App.4th at p. 147, citing ABA Standards For Criminal Justice, Pleas of Guilty (3d ed. 1999) (ABA Standards).) The commentary to the ABA Standards indicates that court decisions in a number of states have "condemned judicial participation in plea negotiations." (Weaver, supra, 118 Cal.App.4th at p. 147, quoting ABA Standards, com. to rule 14-3.3, pp. 134-135.) The commentary to the ABA Standards also provides that it is a "basic principle that the court 'should never through word or demeanor, either directly or indirectly, communicate to the defendant or defense counsel that a plea agreement should be accepted or that a guilty plea should be entered.'" (Weaver, supra, 118 Cal.App.4th at pp. 147-148, quoting ABA Standards, com. to rule 14-3.3, p. 135.) The Weaver court commented that the basis for precluding judicial involvement in plea negotiations is to "diminish[] the possibility of judicial coercion of guilty pleas . . . ." (Weaver, supra, 118 Cal.App.4th at p. 146.)

The Weaver court also noted that although California law does not preclude judicial involvement in plea negotiations, "courts have expressed strong reservation[s] about the practice."

Story continue in Part II …….

(Weaver, supra, 118 Cal.App.4th at p. 148Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Apartment Manager Lawyers.

^[1] Unless otherwise specified, all subsequent statutory references are to the Penal Code.

^[2] During the hearing at which Sandoval pled guilty, Sandoval's counsel agreed that the preliminary hearing transcript would serve as the factual basis for his plea. Because the facts of the underlying crime are not relevant to the issues on appeal, we adopt the abbreviated version of the facts of the underlying crime as set forth in the People's brief, which they in turn drew from Sandoval's brief.

^[3] Codefendants Esparza, Mesa, and Pantoja are not parties to this appeal.

^[4] A defendant provides an Alvernaz waiver by stating on the record that he is unwilling, or unable, to enter into the terms of a plea bargain agreement. (See In re Alvernaz (1992) 2 Cal.4th 924, 928 [holding "when a defendant demonstrates that ineffective representation at the pretrial stage of a criminal proceeding caused him or her to proceed to trial rather than to accept an offer of a plea bargain that would have been approved by the court, the defendant has been deprived of the effective assistance of counsel"].)