PEOPLE v. SANDOVAL
Filed 6/7/06
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| THE PEOPLE, Plaintiff and Respondent, v. STEVEN SANDOVAL, JR., Defendant and Appellant. | D045846 (Super. Ct. No. SCS179252) |
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.
Story continue from Part I …….
.) "In People v. Williams (1969) 269 Cal.App.2d 879, the court stated that 'special problems are presented when the judge participates in plea negotiations. Experience suggests that such judicial activity risks more, in terms of unintentional coercion of defendants, than it gains in promoting understanding and voluntary pleas, and thus most authorities recommend that it be kept to a minimum [citations].' (See also People v. Orin (1975) 13 Cal.3d 937, 943; People v. Jensen (1992) 4 Cal.App.4th 978, 983-984.)" (Weaver, supra, 118 Cal.App.4th at p. 148.) The Weaver court noted that the California Judges Benchbook states that, to the extent a judge decides to become involved in plea negotiations, "[t]he judge should maintain total neutrality and at the same time probe continually for a common meeting ground." (Weaver, supra, 118 Cal.App.4th at p. 148.)
c. The coercive nature of "package-deal" plea bargains
"It has long been established that guilty pleas obtained through 'coercion, terror, inducements, subtle or blatant threats' are involuntary and violative of due process. [Citation.]" (In re Ibarra (1983) 34 Cal.3d 277, 287 (Ibarra), disapproved on another ground in People v. Howard (1992) 1 Cal.4th 1132, 1175-1178.) Such coercion is a particular danger in the package-deal plea bargain context. In Ibarra, the California Supreme Court discussed the coercive nature of "package-deal" plea bargains:
"'Package-deal' plea bargains . . . may approach the line of unreasonableness. Extraneous factors not related to the case or the prosecutor's business may be brought into play. For example, a defendant may fear that his wife will be prosecuted and convicted if he does not plead guilty; or, a defendant may fear, as alleged in this case, that his codefendant will attack him if he does not plead guilty. Because such considerations do not bear any direct relation to whether the defendant himself is guilty, special scrutiny must be employed to ensure a voluntary plea. '[P]lea bargaining of adverse or lenient treatment for some person other than the accused . . . might pose a greater danger of inducing a false guilty plea . . . .' [Citation.]" (Ibarra, supra, 34 Cal.3d at p. 287.)
The Ibarra court noted that in many jurisdictions, courts are required to exercise "special care" in determining the voluntariness of a plea undertaken pursuant to a package deal plea bargain. (Ibarra, supra, 34 Cal.3d at p. 288.) The Ibarra court held "[w]e go one step further, however, by requiring an inquiry into the totality of the circumstances whenever a plea is taken pursuant to a 'package-deal' bargain." (Ibid.) The Ibarra court mandated that a trial court consider a number of factors in undertaking such an inquiry, including promises of leniency to third parties and threats made to the defendant. (Ibid.)
When determining the voluntariness of a plea entered pursuant to a package deal, "the nature and degree of coerciveness should be carefully examined." (Ibarra, supra, 34 Cal.3d at p. 289.) The Ibarra court explained that a trial court should carefully scrutinize pleas in which the defendant shares a special relationship with a person who has been promised a benefit contingent on the defendant pleading guilty and those cases in which a third party has threatened the defendant:
"Psychological pressures sufficient to indicate an involuntary plea might be present if the third party promised leniency is a close friend or family member whom the defendant feels compelled to help. '[T]he voluntariness of a plea bargain which contemplates special concessions to another─especially a sibling or a loved one─bears particular scrutiny by a trial or reviewing court conscious of the psychological pressures upon an accused such a situation creates.' [Citation.] If the defendant bears no special relationship to the third party promised leniency, he may nevertheless feel compelled to plead guilty due to physical threat. For example, if the third party had made a specific threat against defendant if he refused to plead guilty, the plea is likely to be involuntary." (Ibid., italics added.)
The Ibarra court also suggested that a plea is likely to be involuntary if the court finds that a promise of leniency to a third party was a significant consideration in the defendant's decision to plead guilty. (Ibarra, supra, 34 Cal.3d at pp. 289-290.)
3. The trial court abused its discretion in refusing to allow Sandoval to
withdraw his guilty plea on the ground that the plea was not voluntary
A guilty plea that follows a threat of physical violence is "likely to be involuntary." (Ibarra, supra, 34 Cal.3d at p. 289.) Here, the trial court stated that it was "sure" Mesa had in fact threatened Sandoval immediately before Sandoval changed his mind and agreed to plead guilty. The record amply supports this finding. Sandoval had been "firm" in his insistence on going to trial for nearly a year, from the time he was arrested until the day he entered his guilty plea. He changed his mind only after a brief conversation with codefendant Mesa during which, according to Mesa, Mesa threatened Sandoval's life. Further, the trial court found that immediately after Mesa threatened Sandoval, Mesa told his attorney about the threat and Sandoval's response. The court also found that Sandoval had expressed to Attorney Vandenbosch his desire to withdraw his plea the day after he entered it.
Sandoval presented evidence that he had taken Mesa's threat seriously. Vandenbosch testified that Sandoval told her he feared he would be physically harmed if he did not plead guilty. Vandenbosch also testified that Sandoval was probably aware that Mesa had been accused of organizing an attack on another inmate. In addition, Sandoval was obviously aware that Mesa was a gang member who was accused of murder in this case.
The trial court's finding that Sandoval pled guilty partly out of a desire to act in the best interests of his fellow gang members is another factor indicating that Sandoval's guilty plea was involuntary. Although the trial court apparently believed this finding supported its determination that Sandoval's plea was not coerced, Ibarra makes clear that such a finding actually supports the conclusion that Sandoval's plea may not have been voluntary. (See Ibarra, supra, 34 Cal.3d at pp. 289-290.)
The trial judge's involvement in the plea negotiations also supports the conclusion that Sandoval's plea was coerced. The trial judge's remarks served to increase the psychological pressure on Sandoval stemming from his relationship with the codefendants. (See Ibarra, supra, 34 Cal.3d at pp. 289-290.) After each of Sandoval's codefendants stated on the record that he wished to accept the People's offer but could not do so because of Sandoval's insistence on going to trial, the judge expressed her "sympathy" for the codefendants. The court commented on Sandoval's willingness to take his codefendants "down with [him]," and noted that "maybe the gang isn't all it was cracked up to be. . . ."
Further, far from "maintaining totally neutrality" during the plea discussions (Weaver, supra, 118 Cal.App.4th at p. 148), the trial judge communicated both expressly and implicitly her belief that all of the defendants should accept the plea offer. The trial judge repeatedly expressed her view that the proposed plea agreement constituted an "amazing offer." She also asked both Sandoval's attorney and his codefendants' attorneys whether there was anything she could do to be of assistance in persuading Sandoval to plead guilty.
The judge's willingness to hold chambers conferences with each defendant's attorney for the stated purpose of exploring whether the prosecutor would be willing to allow any of the defendants to plead guilty in exchange for their testimony against Sandoval could only have put additional pressure on Sandoval to plead guilty. The trial judge's setting a short deadline for Sandoval to accept the plea offer, and her observation that there was "more than sufficient evidence for a jury to convict each and every one of the defendants," further contributed to the coercion applied to Sandoval.
There is abundant evidence that Sandoval's guilty plea was the product of coercion. Sandoval steadfastly insisted on going to trial over a period of nearly a year, and changed his mind only after codefendant Mesa threatened his life and after the court put additional pressure on him to plead guilty. We conclude that under these circumstances, the trial court abused its discretion in refusing to allow Sandoval to withdraw his guilty plea.
B. The trial court did not err in sentencing Sandoval pursuant to the
Three Strikes Law
Sandoval claims the trial court erred in imposing a sentence pursuant to the Three Strikes Law because the information did not properly allege that had suffered a prior strike conviction.
1. Procedural background
On September 15, 2004, the People filed an information dated March 24, 2004.[1] This information alleged that Sandoval had suffered a prison prior and a serious felony prior in connection with a conviction for a violation of section 245, subdivision (a)(1) on November 5, 1999 in case number SCS143765.
On September 28, just prior to accepting the guilty pleas of Sandoval and his codefendants, the People amended the information to allege that Sandoval had suffered a prior strike conviction:
"The court: For the record, we have all of the defendants, and all of the attorneys. Ms. Roach [the prosecutor], you said you wanted to make an amendment to the information. Would you like to go ahead and do that at this time?
"Ms. Roach: Yes your honor. [¶] As to the allegations for the prior section for defendant Mesa, the People would add the following language: [¶] And it is further alleged that defendant Jeffrey Danielle Mesa did suffer a prior strike conviction within the meaning of Penal Code section 667 sub[division] (b) through sub[division] (i), and Penal Code section 1192.7 [subdivision] (c)(19). And that he suffered a prior conviction for attempted robbery. And, your honor, I believe both the case numbers and the dates are on the current information. [¶] If the court could transcribe those particular numbers. I apologize, I don't have a copy of the information in front of me, but it is the exact same case number, and date of conviction, and county of conviction as the serious felony prior and prison prior.
"The clerk: I have additional copies if you want.
"Mr. Skomal: I think I have the information if you want me to state it.
"The court: I just wonder if [the clerk] got it down.
"Ms. Roach: I can actually just write this in.
"The court: Could you just write it out and give it to the clerk now?
"Ms. Roach: Absolutely.
"The court: That would be good.
"Ms. Roach: Would the court also like me to make a verbal record of the other changes?
"The court: Yes, go ahead and do it in writing, and let's have you state what you did.
"Ms. Roach: Let me ─
"The court: Do you want to go ahead and read it into the record as you're doing it?
"Ms Roach: Yes your honor. [¶] The language reads: It is further alleged, that Jeffrey Danielle Mesa, and Esteban Sandoval, Junior,[2] did previously suffer convictions for serious, slash, violent felonies pursuant to Penal Code section 667 sub[division] (b), sub[division] (i), in that Jeffrey Danielle Mesa suffered a prior felony conviction for violating Penal Code section 664/211 on 3-6-02 in court case number SCS166406, in the Superior Court, County of San Diego, California. [¶] And that Esteban Sandoval, Junior, did suffer a serious or violent felony pursuant to section 667 sub[division] (b) through sub[division] (i). That he was convicted of Penal Code section 245(a)(1) of assault with a deadly weapon. Date of conviction being November 5th, 1999, in court case number SCS 143765, in the Superior Court of San Diego, State of California.
"The court: Any objection to those amendments on behalf of your client, Mr. Skomal?
"Mr. Skomal: No, your honor.
"The court: On behalf of your client, Ms. Vandenbosch?
"Ms. Vandenbosch: No, your honor.
"The court: At this time, for your purposes, are you entering a denial to those allegations, on behalf of Mr. Mesa?
"Mr. Skomal: At this time.
"The court: And Ms. Vandenbosch?
"Ms. Vandenbosch: Yes.
"The court: Thank you. [¶] Your next amendment is?"
At that same hearing, while pleading guilty to one count of voluntary manslaughter (§ 192, subd. (a)), Sandoval orally admitted having incurred a strike prior stemming from a conviction in case number SCS143765 for a violation of section 245, subdivision (a)(1). Sandoval also signed a plea form in which he admitted having suffered a strike prior stemming from a conviction on November 5, 1999 in case number SCS143765 for a violation of section 245, subdivision (a)(1). Sandoval's counsel waived a reading of the information for purposes of taking his guilty plea.
In October 2005, while this appeal was pending, Sandoval requested that the record on appeal be augmented with "[a]ny informations, amended informations, amendments to informations, or informations by interlineations that make any reference to a Three Strikes enhancement alleged against appellant." In October 2005, this court granted the request to augment the record.
On November 29, 2005, the clerk of this court filed an augmented clerk's transcript that contained an information with a handwritten notation that reads "[a]mended by interlineation 11-17-05 nunc pro tunc to 09-28-04." Next to the notation are handwritten initials that appear to read "FLD." The information contains two handwritten amendments that read:
"It is further alleged that defendant Jeffrey Danielle Mesa and Esteban Sandoval, Jr. did previously suffer convictions for serious/violent felonies pursuant to P[enal] C[ode] [section] 664 and [section] 211 on 3-6-02 in court case number SCS166406. Superior Court, County of San Diego, CA.
"And that Esteban Sandoval, Jr. did suffer a serious or violent felony pursuant to P[enal] C[ode] 667 [subdivision] (b) - (i) i[n] that he was convicted of P[enal] C[ode] 245 [subdivision] (a)(1) of assault with a deadly weapon. Date of conviction being November 5, 1999, in court case SCS143765. Superior Court County of San Diego, CA."
Next to the amendments are the same handwritten initials that are contained on the first page of the information, which appear to read "FLD." The information does not bear a file stamp.
On December 28, 2005, Sandoval filed an unopposed request to strike the November 29, 2005 augmented clerk's transcript from the record on appeal. Sandoval also requested that this court order the superior court to strike from the superior court file the information containing the handwritten notations. In support of his request, Sandoval's attorney filed a declaration in which he stated that he spoke with the trial court's clerk, F. Lynn Drake. Drake acknowledged that he drafted the handwritten amendments to the information contained in the November 29, 2005 augmented clerk's transcript. Drake explained that he obtained an unconformed copy of an information from the district attorney, reviewed the transcript of the September 28, 2004 proceedings, drafted the purported amendments to the information, initialed the information, drafted the caption to the information, and placed the information in the file indicating that it was filed "nunc pro tunc" to September 28, 2004. Drake acknowledged that he did not obtain the court's approval before taking these actions.
2. The November 2005 information is ordered stricken from the record
on appeal and from the superior court file
We are aware of no authority that would authorize the clerk's actions in drafting the November 2005 amended information in this case. Most fundamentally, there is nothing on the face of the information, nor in the record, that indicates that the trial court authorized the clerk's actions. Moreover, it is not clear whether the clerk recreated a document that had been filed but was subsequently lost, or rather, created a document that should have been filed but never was. If the People in fact filed a written information that was amended by interlineation on September 24, 2004, and that information was subsequently lost, the trial court had the authority to order that a copy of the information be placed in the file. (§ 973 ["If the accusatory pleading in any criminal action has heretofore been lost or destroyed or shall hereafter be lost or destroyed, the court must, upon the application of the prosecuting attorney or of the defendant, order a copy of such pleading to be filed and substituted for the original, and when filed and substituted, as provided in this section, the copy shall have the same force and effect as if it were the original pleading"].) If no such pleading was filed, it was clearly not within the authority of the clerk to draft such a pleading and "order" the document filed nunc pro tunc to September 28, 2004.
Finally, the written information as amended by Drake does not conform entirely with the prosecutor's oral amendments to the information made on September 28, 2004. For example, the written information alleges that Sandoval previously suffered serious or violent felony convictions in case numbers SCS166406 and SCS143765. The prosecutor orally alleged only that Sandoval suffered a strike conviction in case number SCS143765.
Accordingly, we order the information "amended by interlineation 11-17-05 nunc pro tunc to 09-28-04" contained in the November 29, 2005 augmented clerk's transcript stricken from the record on appeal and direct the trial court to strike the information from the superior court's file.[3]
3. The People's oral amendment of the information adequately alleged
that Sandoval had suffered a prior strike conviction
We assume for purposes of our decision that before a trial court may impose a sentence based on a prior conviction under the Three Strikes Law, the People are required to allege that a defendant has suffered such a prior strike conviction.
Section 969a authorizes amendments to an accusatory pleading for the purpose of alleging a prior felony conviction. "Whenever it shall be discovered that a pending indictment or information does not charge all prior felonies of which the defendant has been convicted either in this State or elsewhere, said indictment or information may be forthwith amended to charge such prior conviction or convictions, and if such amendment is made it shall be made upon order of the court, and no action of the grand jury (in the case of an indictment) shall be necessary." (§ 969a.) Section 969a does not expressly require that the amendment be in written form.
"An accusatory pleading['s] . . . purpose is to provide the accused with reasonable notice of the charges." (People v. Ruiloba (2005) 131 Cal.App.4th 674, 689-690.) Defects in the form of an accusatory pleading are not a ground to reverse a criminal judgment in the absence of significant prejudice to a defendant. (§ 960 ["No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits"].)
We are aware of no authority, and Sandoval has cited none, that suggests that a criminal judgment may not be premised upon an information that has been orally amended. In a number of cases, courts have noted that an information was orally amended. (See, e.g. Donaldson v. Department of Real Estate of State of Cal. (2005) 134 Cal.App.4th 948, 951 ["About a month later, licensee entered a no contest plea to unlawful intercourse with a minor, a felony, and contributing to the delinquency of a minor, a misdemeanor which the information had been orally amended to charge"]; People v. Wallace (2003) 109 Cal.App.4th 1699, 1701 ["Pursuant to a negotiated disposition, the prosecution orally amended the information to allege a violation of section 422.7"]; People v. Hickey (1980) 109 Cal.App.3d 426, 432 ["On the motion of the district attorney, and over the strenuous objection of appellant's trial counsel, the information was orally amended to plead both priors as 'violent' felonies within the meaning of section 667.5, subdivisions (a) and (c)"].)
The informal amendment doctrine makes it clear that California law does not attach any talismanic significance to the existence of a written information. Under this doctrine, a defendant's conduct may effect an informal amendment of an information without the People having formally filed a written amendment to the information. (See People v. Rasher (1970) 3 Cal.App.3d 798, 800, 803 [concluding "defendant was properly convicted of an offense with which he was not, but could have been [citation] formally charged in the information" where defendant's conduct in requesting certain jury instructions "accomplish[ed] an informal amendment of the information"]; People v. Hensel (1965) 233 Cal.App.2d 834, 839, disapproved on another ground by People v. Triggs (1973) 8 Cal.3d 884, 897, fn. 7 [concluding in case where defendant asked court to reduce his offense to violation of lesser, but not included, offense, defendant impliedly consented that information be treated as though another similar lesser offense had been charged].)
People v. Estrada (1960) 185 Cal.App.2d 435 (Estrada), upon which Sandoval relies, is not to the contrary. In Estrada, the People charged defendant in an information with possession of marijuana. At trial, the People moved to amend the information to charge the defendant with possession of heroin (id. at p. 439), but never filed a written information charging defendant with possession of heroin. (Ibid.) The court rejected the defendant's argument that the People's failure to file a written information alleging possession of heroin entitled him to a reversal of the judgment.
"Assuming that the granting of the amendment, in and of itself, did not give the proposed amendment the dignity of 'a writing,' appellant's argument ignores the very basis upon which a reversal for a variance can be granted. It is true that the evidence presented in a criminal case must correspond with the allegations of the indictment; but a variance, to be reversible error, must be material [citation]. The test of materiality is predicated 'upon the requirements that the accused shall be definitely informed as to the charges against him, and that he may be protected against another prosecution for the same offense' [citation].
"It is clear that appellant was at all times aware of the precise nature of the charge against him. He knew that the narcotics involved [were] heroin because the People's chemist so testified at the preliminary hearing. It is to be remembered that by stipulation the cause was submitted on the testimony contained in the transcript of the preliminary hearing, each side reserving the right to offer additional evidence. Appellant knew of the variance between the information and the proof because the motion to amend was made in open court. Appellant requested no continuance and offered no objection to the amendment. It cannot now be contended that he was prejudiced since he was definitely informed as to the charges against him . . . ." (Estrada, supra, 185 Cal.App.2d at pp. 439-440.)
Although, the Estrada court assumed, but did not decide, that a motion to amend an information, did not constitute a written amendment to the information, the court did not address whether, as in this case, an oral amendment to an information offered in open court with the defendant present, constitutes an effective amendment to an information. Estrada does make clear, however, that the touchstone of determining the adequacy of an accusatory pleading is whether the defendant had adequate notice of the charges against him.
In this case, the People orally amended the information to allege the strike prior in open court, in the presence of Sandoval and his attorney. Sandoval's attorney stated that she had no objection to the amendment, and denied the allegation contained in the orally amended information. This refutes Sandoval's contention in his brief that the record reveals only an "oral expression of an intention to file an amended pleading." At the same hearing, Sandoval orally admitted having incurred the strike prior and filed a signed plea form in which he admitted having suffered the strike prior.
The record is thus clear that Sandoval had reasonable notice of the prior strike allegation and that any defect in the form of the allegation did not prejudice Sandoval. Accordingly, we conclude that the oral amendment of the information adequately alleged that Sandoval had suffered a prior strike conviction.[4]
IV.
DISPOSITION
The trial court is directed to strike from the superior court file the information "amended by interlineation 11-17-05 nunc pro tunc to 09-28-04."
The trial court shall allow Sandoval to file a new motion to withdraw his plea of guilty within 30 days of the finality of this opinion. If Sandoval timely files such a motion, the court is directed to grant the motion and allow Sandoval to withdraw his guilty plea. If Sandoval does not timely file a motion to withdraw his guilty plea, the trial court shall reinstate the judgment.
CERTIFIED FOR PUBLICATION
AARON, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
Publication Courtesy of San Diego County Legal Resource Directory.
Analysis and review provided by El Cajon Apartment Manager Attorneys.
[1] Sandoval filed a third motion to augment the record on appeal to include the September 15, 2004 information, and a request that we take judicial notice of this information as well as an information filed March 10, 2004. In his request for judicial notice, Sandoval acknowledged that his request for judicial notice would be moot if this court were to grant his third motion to augment the record on appeal.
On January 18, 2006, this court granted Sandoval's third motion to augment the record. The September 15, 2004 information is contained in the third augmented clerk's transcript filed on February 9, 2006. Accordingly, we deny as moot Sandoval's request for judicial notice.
[2] Steven Sandoval, Jr. is referred to as Esteban Sandoval in various documents in the record. It is clear that this amendment refers to Steven Sandoval.
[3] On December 28, 2005, Sandoval also filed a request to correct the December 1, 2005, augmented clerk's transcript. Specifically, Sandoval requested that the record be corrected to omit the information containing the handwritten notations. In view of our conclusion granting Sandoval's request to strike the information containing the handwritten amendments, we deny his motion to correct the record as moot.
[4] In light of our conclusion, we need not consider the People's argument that Sandoval forfeited his claim by failing to raise it in the trial court.
