P. v. Brown

Filed 8/17/07 P. v. Brown CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Clarence Westra, Jr., Judge.

William A. Malloy, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.

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Appellant, Tommy Brown, pled guilty to possession of cocaine base for sale (Health & Saf. Code, 11351.5) and admitted allegations that he had a prior conviction within the meaning of the three strikes law (Pen. Code, 667, subds. (b)-(i)).^[1] Following a timely appeal, this court found that the trial court erred in not appointing second counsel to represent Brown in preparing a motion to withdraw plea and remanded the matter to the trial court. On July 7, 2006, the trial court denied Browns motion to withdraw his plea. On appeal, Brown contends the trial court abused its discretion when it denied his motion to withdraw plea. We will affirm.

FACTS

On November 26, 2004, Bakersfield police officers conducted a warrant search^[2]at room 14 of the Park Motel while Brown, Sabrina Shelton, Loretta Smith and Lester Alexander were in the room. After the officers gained entry into the room by forcing open the door, which Brown had barricaded, the officers saw Alexander chewing an unknown substance. The officers ordered Alexander to open his mouth. When he complied, an officer observed small rock-like chunks in his mouth. A large amount of cash in small bills was also found on Alexander. A search of the room uncovered numerous pieces of suspected cocaine base on the floor, a dinner plate, and a glass chessboard. During an interview with police officers, Smith told them that she was at the room to purchase cocaine and that they all had it. Shelton told the officers that she was aware there were narcotics sales going on in the room. However, she never took any money or handed any drugs out.

Brown told the officers that he was in the room to visit a friend, that he was not involved in cocaine sales, and that he was in the wrong place at the wrong time.

On December 10, 2004, Brown entered his plea in this matter in exchange for a maximum term of eight years and the prosecutor dismissing a prior conviction enhancement (Health & Saf. Code,  11370.2), three prior prison term enhancements ( 667.5, subd. (b)) and one count each of maintaining a place for selling or using cocaine base (count 2/Health & Saf. Code, 11366), actively participating in a criminal street gang (count 3/ 186.22, subd. (a)), and obstructing a police officer (count 4/ 148).

On January 13, 2005, Browns defense counsel, Michael Gardina, filed a motion to withdraw plea on Browns behalf alleging that Brown was denied the effective assistance of counsel. In a supporting declaration Brown alleged that he had advised attorney Gardina that he did not want to go to trial and was willing to take a plea bargain and that he felt he could have gotten a better plea offer if he had proceeded to a preliminary hearing. In a supplemental declaration Brown stated that he was advised he would have to reject the offer at the pre-preliminary before he could proceed to a preliminary hearing and motions.

On January 25, 2005, the court denied Browns motion.

Following a timely appeal, on February 24, 2006, in an unpublished opinion (F047928) this court found that the trial court erred by not appointing independent counsel to pursue Browns motion to withdraw plea, conditionally reversed Browns conviction, and remanded the matter to the trial court to permit Brown to file a motion with the assistance of counsel.

On May 25, 2006, the trial court appointed attorney Michael Dellostritto to review the case to determine whether a motion to withdraw plea would be appropriate.

On June 19, 2006, Dellostritto filed a motion to withdraw plea on Browns behalf. In a supporting declaration, Brown stated that when he entered his plea he was unaware that a motion for the disclosure of the CIs identity could have led to exculpatory evidence or that hearsay from the CI would have been inadmissible at trial to establish who was in the room when the sales took place and who was involved in them. According to Brown, the granting of the motion could have provided evidence that Brown was not one of the people in the room when the narcotics were possessed or sold on prior occasions and this would have corroborated his contention that he was simply in the wrong place at the wrong time.

On July 7, 2006, at a hearing on his motion, Brown testified that on the day of his arrest in this matter he was hit over the head with a gun, causing a cut that required staples to close. He was still in pain and taking medication when he entered his plea. Although the medication eased his pain, it also made him dizzy. Brown spoke to Gardina three to four days prior to entering a plea at the pre-preliminary hearing. Gardina told Brown he was in a lose-lose situation because Brown was caught in the room where drugs were found and he barricaded the door. Gardina did not advise Brown that he had a defense to the charges and when Gardina left, Brown did not feel he had a defensible case. When Gardina returned with an offer of eight years, Brown told him he was not guilty. He and Gardina never discussed the affidavit in support of the search warrant or the CI. Brown decided to enter his plea because Gardina told him that it was either eight years, 22 years, or maybe more, and, after talking with Gardina, Brown had no hope of winning at trial. Brown asked Gardina for the warrant but did not receive a copy of it until about a week after he entered his plea. Once Brown read over the warrant, he called Gardina and told him he wanted to withdraw his plea.

Brown also identified a booking photograph of himself taken the day he was arrested in this matter which showed he was not the man identified by the CI as subject No. 1 because he had short hair when he was arrested.

After the matter was remanded to the trial court, Brown met with attorney Dellostritto, who discussed with him the possibility of filing a motion to disclose the identity of the CI. Based on these discussions, Brown realized he had a defense he had been unaware of and that there was a possibility of filing a motion through which he could obtain evidence favorable to his defense. Had he known there was a potential motion relevant to the search warrant, the affidavit, and the CI he would not have entered a plea.

On cross-examination, Brown conceded that the medication he was taking did not affect his ability to make decisions. He also acknowledged being advised by Gardina that a conviction for an offense done in furtherance of a gang would qualify as a prior strike conviction. He accepted the plea bargain because he did not want to get a second strike and he wanted to avoid a possible 22-year sentence. Brown decided to withdraw his plea because after receiving the warrant it did not appear to be real to him.

Gardina testified that he believed Brown would lose at trial because the police conducted a controlled buy at the location, they complied with the knock-notice requirements before entering the room, and Brown spent most of the time at the pre-preliminary hearing trying to figure out the identity of the CI, giving Gardina the impression Brown had been in the room with the CI. According to Gardina, Brown was adamant that he did not want to go to trial because he did not think he would do well. Brown later told Gardina he wanted to withdraw his plea because he felt he could get a better deal if he went to the preliminary hearing.

Also, according to Gardina, there was a problem that overshadowed any problem with the warrant, i.e., one of the women in the room at the time of the search (Smith) told the police that Brown and two codefendants had drugs, that they were members of a street gang, and that they would kill her if they found out she gave information to them.

During arguments, Dellostritto argued that Brown did not match the description of the man with braids whom the CI saw in possession of all the packages of cocaine base and who actually sold the cocaine base to the CI during the controlled buy. Dellostritto further argued that Brown was never informed that he might have a defense to the charges or that a motion to disclose the name of the CI could be made and, if it had been granted, would have put him in a position where the entire case could have been dismissed. Thus, according to Dellostritto, the court should have granted Browns motion to withdraw plea because Brown should have been provided this information prior to entering a plea.

The prosecutor argued that the failure to disclose the identity of the CI did not result in the withdrawal of a crucial defense, that Browns testimony was very clear he understood everything that occurred at the change-of-plea proceedings, and that the medication did not affect his judgment.

In denying the motion the court, in pertinent part, noted that Brown was aware of the witness who identified Brown as being involved in the sale of cocaine base prior to police arriving at the motel room and it found that the mere possibility that a motion to discover the identity of the CI might have led to the dismissal of the charges would not have caused Brown to forgo his negotiated plea for an eight-year lid.

DISCUSSION

Brown contends that since the cocaine base was not found in his possession, had he gone to trial the case would have been prosecuted on a constructive possession theory. He further contends that a constructive possession theory would have made relevant which person or persons were in control of room 14 and the cocaine base being sold from the room. Further, since he was merely visiting at room 14, the CIs testimony regarding two recent visits to the room was relevant to, and possibly supported, Browns claim because the CI told the police that the man in possession of the cocaine had braided hair and Brown did not have braided hair. Brown further contends that he should have been told about the possibility of filing a motion to disclose the identity of the CI because a successful motion could have resulted in providing Brown with exculpatory evidence or the dismissal of counts one and two. Thus, according to Brown, the court abused its discretion when it denied his motion to withdraw plea because he did not enter his plea knowingly and voluntarily in that he was denied material information concerning a potential defense which reasonably would be expected to have impacted his decision to plead. We will reject these contentions.

A defendant may move the trial court to set aside a guilty plea for good cause at any time before the entry of judgment. [Citation; ] Good cause means mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free judgment and must be shown by clear and convincing evidence. [Citation.] The grant or denial of such a withdrawal motion is within the sound discretion of the trial court and must be upheld unless an abuse thereof is clearly demonstrated. [Citation.] We are required to accept all factual findings of the trial court that are supported by substantial evidence. [Citation.] (People v. Ravaux (2006) 142 Cal.App.4th 914, 917.)

[Further,] [t]he prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant. [Citation.] An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant. [Citation.] The defendant bears the burden of adducing some evidence on this score.[Citation.] (People v. Lawley (2002) 27 Cal.4th 102, 159.)

Here, Brown does not specify what evidence the CI could have provided to show that Brown was only a visitor at room 14 on the date he was arrested. However, he appears to claim that if the CI had not seen him at the motel on the two occasions the CI was there this somehow would have provided evidence that Brown was only a visitor at the room when Brown was arrested. Initially we note that Browns presence in (or absence from) room 14 on the two occasions the CI was there, without more, would not make it reasonably probable that the CI could provide evidence to exonerate Brown. To the contrary, the warrant affidavit discloses that the CI would probably have disclosed inculpatory information because the CI told the declarant officer that he or she believed that the people in room 14 were gang members, that they were all aware the cocaine base was in the room, and that they were acting in concert to sell it.

Further, even if the informant had helped Brown show he was only a visitor in room 14, this would not necessarily have led to evidence that exonerated Brown because possession can be constructive and does not have to be exclusive. (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) Thus, even if Brown was a visitor in the room, his visitor status would not have precluded him from jointly possessing the cocaine base for sale with the other people in the room. Moreover, whether Brown was a visitor on previous occasions or only on the day of the search, would not have precluded Brown from aiding and abetting the sale of cocaine base out of the room even if he never actually possessed it. Additionally, based on Smiths statement that all the people in room 14 had cocaine base and Browns actions in barricading the door to prevent the officers from entering, it appears that, at minimum, Brown was aiding and abetting the possession for sale and sales of cocaine base out of the room. Accordingly, we conclude that the failure to advise Brown that he could file a motion for the disclosure of the identity of the CI did not result in the denial of critical information or of a potentially meritorious defense. Since Brown was not denied critical information prior to entering his plea, we further conclude that he entered his plea knowingly and voluntarily and that the trial court did not abuse its discretion when it denied his motion to withdraw plea.

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Wiseman, J. and Levy, J.

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

^[2] The affidavit in support of the warrant stated, in pertinent part, that within the past 10 days a confidential informant (CI) had seen four Black males and two Black females in room 14. The CI stated that subject No. 1, who was described as a male with braided hair, was in possession of a large quantity of individual packages of cocaine base. The CI further stated that the buyer stood inside and traded money for cocaine base with subject No. 1, who possessed the pieces of cocaine base. Also, within the last 10 days, the informant had made a controlled purchase of cocaine base from the same subjects inside room 14. The CI stated that all the people in room 14 were aware that there was cocaine base in the room, that they were all working in concert to sell the cocaine base, and that the CI believed that all the people in room 14 were members of a criminal street gang.