P. v. Mays

Filed 9/25/07 P. v. Mays CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Appellant pleaded guilty to one count of murder and one count of conspiracy and admitted the personal use of a firearm. (Pen. Code,  187, 182, subd. (a)(1), 12022.53, subd. (d).) The trial court denied appellant's motion to withdraw his plea and sentenced him to a state prison term of 50 years to life. Appellant contends that the trial court erred in denying his motion to withdraw his guilty plea. We reverse.

Background

Appellant was charged with murdering Peter Bianco, a methamphetamine dealer who was thought to keep large amounts of cash on his person and at his home. Appellant met Bianco through Dorothy Motschenbacher, who lived with Bianco. When Motschenbacher and Bianco ended their intimate relationship, she moved out. Motschenbacher and appellant discussed stealing from Bianco through burglary or robbery. Bianco was later found dead in his garage, having been shot several times. Appellant was arrested for this homicide and confessed, giving a number of explanations, some of which were at least partially exculpating, for the shooting.

In November 2005, the trial court denied appellant's motion to suppress his confession. The trial began and, shortly after the jury was selected and sworn, appellant entered his guilty plea. Before sentencing, appellant asked for a continuance to prepare a motion to withdraw his plea. Later, he filed a motion to discharge appointed counsel. He criticized defense counsel for not entering a plea of not guilty by reason of insanity, for not performing necessary investigation, for not presenting expert witnesses, for not filing motions and writs, for not giving him access to discovery, and for "a clear incompetent decision by counsel by allowing defendant" to plead guilty.

The court held a hearing on appellant's motion to discharge appointed counsel and permitted appellant to explain his various complaints. When asked about the allegation that defense counsel failed to file appropriate writs and motions, appellant said "Well, I don't know about a writ or motion, but at my trial the reason I stopped my trial was because I knew one of my jurors. I brought that up. I brought it up when he was on the panel. I told him I knew this man, and I did not want him on my jury. [] And it went farther. He finally got on the jury, and I told him again that we talked back and forth about it. And it's not up to me to know the law and know what's going on there; that's what my lawyer's for. But I didn't want him on my jury because he's my girlfriend's sister's stepson. He's an honorable man. He's a bishop in his church. It was an embarrassment for the family, you know? I didn't feel right about it. That's why I stopped my trial."

Defense counsel responded. As for appellant's concern about knowing a juror, counsel said, "There was a juror, [Juror 11], that Mr. Mays originally alerted me to, when the panel first entered the courtroom, as somebody that he told me he knew. The juror I said at that point I said, let's not do anything yet; we don't even know if this person is even going to make it into the box." Counsel explained that when the juror was voir dired, despite the court's inquiry about whether the potential juror knew the parties, "He did not acknowledge that he knew Mr. Mays. . . . He made no indication, by any gesture or anything that was discernible, that he knew Mr. Mays. He gave answers that he was an attorney who was, I believe, on inactive status; he was involved with a Mormon church and the school; he was an administrator at the school." Counsel said that he did not ask the juror if the juror knew appellant because he did not want to alert the prosecutor to that possibility. Defense counsel said that "in every other respect, he was a perfectly acceptable juror giving acceptable answers . . . a juror that I would certainly want. [] And given the [paucity] of the number of people remaining, I would have preferred him rather than to excuse him and go with somebody else that may not have been nearly as desirable. [] But the important thing I want to bring out is that Mr. Mays and I fully and completely discussed the advisability of leaving this juror on the panel. And I said: At this point, it's my opinion, Mr. Mays, that we should leave him on rather than excuse him. Certainly if this juror had at some point later either recalled that he knew Mr. Mays or discovered that he did and brought that to the attention of the Court, even after the panel had been sworn, the juror could have been replaced by an alternate juror. [] In any case, Mr. Mays and I discussed the wisdom of leaving this juror on. And Mr. Mays and I both agreed we were just going to leave him on the panel."

Appellant responded that "as soon as my address would have came out, I'm sure it would have hit him. But I'm not you know. I do know him and, I don't know, maybe I should have went with the trial. I'm not sure. I don't know if I was being too, you know, paranoid or what to have him on there. I just didn't think it was right on my mind to have him on there with, you know, this case." Defense counsel reiterated that the juror gave no indication that he knew appellant and that the juror was someone counsel preferred to have serve. He said, "That was something that Mr. Mays and I discussed. It was not a unilateral decision on my part. It was completely bilateral. We both agreed he should remain on the panel, and he was so sworn. [] It was only the next day that we came back that Mr. Mays then decided he wanted to change his plea."

The trial court denied appellant's motion to discharge appointed counsel. However, the court appointed another attorney, Daniel Mayfield, "to explore the possibility of a motion to withdraw [the] plea." Mayfield filed a motion to set aside appellant's guilty plea. In a declaration filed in support of the motion, appellant said that he had advised trial counsel that he knew Juror 11 and that, "I asked my counsel if there was anyway to 'get rid' of [Juror 11] and he said there was no way to do it. I agreed to plead 'guilty' only because I knew [Juror 11], and because I was embarrassed to go to trial in front of [Juror 11]. . . . I was unaware that there were other possibilities in this case until attorney Mayfield explained them to me. For example, [trial counsel] did not explore alternatives to a plea of guilty such as a stipulation that [Juror 11] could be excused, or a request to re-open voir dire, or a request that the court question [Juror 11] about his knowledge and/or simply replace the juror with an alternate."

At the evidentiary hearing on appellant's motion to withdraw his plea, Sue Thompson testified that she had been living with appellant at the time he was arrested and that it was her intention to attend appellant's trial. She said that she knew Juror 11 because "My sister married his father about 25 years ago, so [Juror 11] would be my step-nephew." She said that Juror 11 had been to her home numerous times and that she had been with him at "family occasions," "mostly at my parents' [house] or at the beach or vacations." She testified that she had introduced appellant to Juror 11 about two or three years earlier and that there were probably two occasions when Juror 11 and appellant were both present at her house.

Juror 11 identified Thompson in court and testified that his family was close and that Thompson was his stepmother's sister. He had been introduced to Thompson's boyfriend and had spoken with him, but that he "had no idea" during voir dire that it was Thompson's boyfriend who was on trial for murder.

Trial counsel testified that he had been a criminal defense attorney for over 20 years. Trial counsel knew Thompson as appellant's girlfriend and "contact person" and "sort of assumed" that she would attend the trial. During jury selection, appellant alerted counsel to the fact that he knew a member of the panel, and counsel told appellant to "sit tight and see what happens." When Juror 11 did "make it into the jury box" appellant "was very concerned that there was somebody who personally knew him, would be attending this trial and participating in this trial." Trial counsel testified that he "had no reason" to remove Juror 11 from the panel through the use of a peremptory challenge. Juror 11 acted as if he did not know appellant. Trial counsel thought that if Juror 11 was "keeping it well-hidden" that he did know appellant "Either he was wanting to secretly help Mr. Mays, or . . . had it in for Mr. Mays." Trial counsel believed Juror 11 to be "a perfect juror."

Trial counsel said that after the jury was sworn appellant told counsel that he "just could not go forward with the trial. He wanted to end it right then. I think his concern was largely the fact that [Juror 11] was going to be on his jury." Appellant told trial counsel, "I just can't do this; I'm too embarrassed, too ashamed; I just can't tolerate the humiliation that I would be subjected to if I had to have someone who I knew and my family knew that would hear whatever it is the state would put on that [I] was accused of doing." Trial counsel testified that he never explored any possibility that would have resulted in the possible removal of Juror 11 from the jury. He did try to see whether the prosecutor would make "some accommodation" for appellant's willingness to plead guilty, but "none [was] forthcoming." Trial counsel concurred in the plea because the defense "was not the strongest" and "the prosecution evidence was overwhelming."

Appellant testified that he told trial counsel that he knew Juror 11 and was not "comfortable with him on the jury." He testified that he asked trial counsel "if there was a way to get [Juror 11] off of the jury" both before and after the jury was sworn. Trial counsel "felt [Juror 11] was a good enough juror to leave on the jury." Appellant felt that if he pleaded guilty, it "would have stopped the trial" and the jury would have been excused before Juror 11 had a chance to recognize appellant. Appellant said "That's the only thing I knew to do. [Trial counsel] wasn't doing anything to get rid of [Juror 11]. So that's the only thing I knew to do." Appellant felt "trapped" and "overwhelmed."

Mayfield argued that appellant's guilty plea was not knowing, intelligent and voluntary based upon what he was being told. "What he was being told by [trial counsel] was there's no way to get rid of [Juror 11]." Trial counsel "didn't explore any possibilities" for removing Juror 11 such as asking to re-open voir dire or asking for a stipulation to remove the juror. That "failure" on trial counsel's part "leads to the plea" which was then "not knowing and voluntary."

The trial court said that appellant's motion presented an "interesting question" and said, "I'm not an expert of the rules of professional responsibility, whether or not a defense attorney does have an ethical obligation to come forward in this situation and dismiss what an attorney, for the sake of argument, honestly believes is a favorable defense juror." The trial court referred to the "rather extensive" voir dire conducted at the time of the plea "because [appellant] wasn't getting a deal." The trial court observed that appellant had stated during the plea voir dire that he was entering the plea freely and voluntarily. The court said, "Ultimately, I'm not quite sure how to deal with the I've-got-a-secret problem" in which there is "secret information confined to the defense." The court found Juror 11's testimony that he did not recognize appellant to be credible. He found trial counsel's explanations for leaving Juror 11 on the jury to be "reasonable." The court said, "I believe [trial counsel] when he tells me at some point, the defendant concurred prior to swearing of the jury. But obviously the defendant has changed his mind." The court said, "I believe the defense has failed in their burden to show good cause to allow him to set aside his plea. I know we were ready, willing and able to have the trial, and it was only because of the defendant's actions that we did not have the trial. And it is difficult for me to understand how we should disturb that, based on secret information in the possession only of the defense sometime remote to his decisions. Accordingly, the defense motion to withdraw the plea is denied."

Discussion

Appellant contends, "The court below abused its discretion in denying appellant's motion to withdraw his guilty plea because appellant's plea was not a voluntary and intelligent choice among the alternative courses open to him for the reason that his counsel failed to inform him of his choices and therefore was constitutionally ineffective."

"A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. [Citations.] '[Penal Code] Section 1018 provides that . . .  "On application of the defendant at any time before judgment . . . the court may, . . . for 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 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.]" (People v. Weaver (2004) 118 Cal.App.4th 131, 145-146.)

Circumstances constituting "good cause" that would justify withdrawal of a guilty plea include a showing that defendant received constitutionally ineffective assistance of counsel that resulted in the guilty plea. (People v. McCary (1985) 166 Cal.App.3d 1, 8-9.) "A decision to deny a motion to withdraw a guilty plea ' "rests in the sound discretion of the trial court" ' and is final unless the defendant can show a clear abuse of that discretion. [Citations.] Moreover, a reviewing court must adopt the trial court's factual findings if substantial evidence supports them. [Citation.]" (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)

" '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.] . . . 'Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.' [Citation.]" (People v. Weaver, supra, 118 Cal.App.4th at p. 146.) A plea "may not be withdrawn simply because the defendant has changed his mind." (People v. Nance (1991) 1 Cal.App.4th 1453, 1456; People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) At the same time, "[i]t is well settled that where ineffective assistance of counsel results in the defendant's decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea. [Citations.]" (In re Alvernaz (1992) 2 Cal.4th 924, 934.)

In the context of a plea, " 'prejudice can be measured by determining whether counsel's acts or omissions adversely affected defendant's ability to knowingly, intelligently and voluntarily decide to enter a plea of guilty.' " (People v. Johnson (1995) 36 Cal.App.4th 1351, 1357.) A defendant must show to a reasonable probability that but for counsel's incompetence, he would not have pleaded guilty and would have insisted on going to trial. (In re Alvernaz, supra, 2 Cal.4th at p. 934.)

Appellant argues, "There was good cause for appellant to withdraw his guilty plea because appellant's plea was not a voluntary and intelligent choice among the alternative courses open to him." Appellant argues, "Trial counsel's failure to pursue measures of removing the juror less drastic than a guilty plea or, at minimum, to advise appellant of those options, constituted prejudicial ineffective assistance of counsel."

Respondent cites a number of cases discussing what constitutes good cause for the removal of a juror. Respondent argues,"A defendant has no right to excuse a juror simply because he or she would be embarrassed by trying the case in front of that juror." However, as appellant points out, "Appellant is not telling this Court that [Juror 11] should have been excused for cause. What he is saying is that trial counsel was ineffective for failing to bring the matter to the attention of the prosecutor and trial court in an effort to resolve the matter short of appellant pleading guilty."

The problem here is that the trial court, as does respondent, viewed this case as one of buyer's remorse in which the defendant concurred in the selection of the jury and then changed his mind about the jury and pleaded guilty. The trial court said," I note we were ready, willing and able to have the trial, and it was only because of the defendant's actions that we did not have the trial. And it is difficult for me to understand how we should disturb that, based on secret information in the possession only of the defense sometime remote to his decisions." The focus of appellant's motion to withdraw his plea was not what information appellant or his counsel possessed about the juror either during jury selection or before the guilty plea, but what information counsel did not convey to appellant concerning appellant's alternatives after the jury had been sworn and before he entered the guilty plea.

Appellant was not seeking to withdraw his plea because he had simply changed his mind, but because ineffective assistance of counsel resulted in his decision to plead guilty. Appellant testified that he pleaded guilty because, "That's the only thing I knew to do. [Trial counsel] wasn't doing anything to get rid of [Juror 11]. So that's the only thing I knew to do." Reasonably competent counsel, in possession of the information counsel had here once the jury had been selected, would also have sufficient knowledge of the procedures which, if initiated by trial counsel, could result in the removal of Juror 11. With that combination of case specific information and general legal knowledge, reasonably competent counsel would know that there was an alternative, short of appellant pleading guilty with no conditions to a 50 year to life term. Counsel was clearly aware that, as he testified, "even after the panel had been sworn, the juror could have been replaced by an alternate juror." Reasonably competent counsel would have at least presented appellant with that alternative in advising him about the wisdom of entering this guilty plea.

This is not to say that a criminal defendant can blackmail trial counsel into making unsound tactical choices by threatening to plead guilty if counsel doesn't accede to his demands. The trial attorney controls the tactical decisions. However, when a criminal defendant is deciding to plead guilty, he must make his decision based on full information about what alternatives are available to him. In denying appellant's motion, the trial court referred to "secret information in the possession only of the defense." Trial counsel knew that the juror, although apparently not recognizing appellant during jury selection, could have recognized Thompson and that, when Thompson came to court to observe the trial, the juror would have made the connection between her and appellant that trial counsel hoped would cause him to be a pro-defense juror. Indeed, trial counsel did keep this connection "secret" from the trial court and the prosecutor. Surely the prosecutor would not have wanted Juror 11 to serve had this information been disclosed. Trial counsel also kept "secret" from Juror 11 the information that this juror was related to appellant's girlfriend who would be attending the trial. Because of this, Juror 11 had no opportunity during jury voir dire to consider and describe the impact this information would have on his impartiality.

But trial counsel also kept "secret," from appellant, the information that the disclosure of this information at any point in trial would trigger, at a minimum, an inquiry by the trial court into whether Juror 11 would be able to continue to serve. In other words, only trial counsel was in possession of both the relevant factual information about Juror 11 and the relevant legal procedure by which that juror could have been removed. The extensive testimony of trial counsel during the motion to discharge counsel and the motion to withdraw the plea revealed no possible tactical decision for not pursuing this course, especially considering that there was no offer from the prosecution. The trial court's reference to the "rules of professional responsibility" and "whether or not a defense attorney does have an ethical obligation to come forward in this situation" provides some insight into what might have caused trial counsel to be disinclined to reveal his "secret" by approaching the prosecutor or the trial court with information that could have resulted in the removal of the juror and his replacement with an alternate. In doing so, it would be trial counsel, rather than appellant, who might have been put in an embarrassing position. But this does not excuse trial counsel from at least presenting this course of action to appellant for consideration in making the decision to plead guilty to a mandatory maximum and minimum sentence of 50 years to life. Without this information, one cannot say that appellant was in a position to make a knowing and intelligent choice among the alternative courses available.

The trial court abused its discretion in denying appellant's motion to withdraw his plea. The trial court explained its decision saying, "I believe [trial counsel] when he tells me at some point, the defendant concurred prior to swearing of the jury. But obviously the defendant has changed his mind." The point of appellant's motion to withdraw his plea was not, however, that appellant changed his mind about the jury composition. The point was that, given appellant's misgivings about that jury, whether trial counsel provided effective assistance in failing to advise appellant that he might be able to avoid having Juror 11 serve yet still have a jury trial. The trial court said, "I note we were ready, willing and able to have the trial, and it was only because of the defendant's actions that we did not have the trial. And it is difficult for me to understand how we should disturb that, based on secret information in the possession only of the defense sometime remote to his decisions. Accordingly, the defense motion to withdraw the plea is denied." Most motions to withdraw a plea for ineffective assistance will involve some "information in the possession only of the defense." The trial court asked appellant during the plea voir dire the usual question concerning whether appellant was "satisfied overall with the discussions you've had with your attorney." Appellant answered, "Yes." Although a trial court can be expected to rely on this response in accepting the plea, a criminal defendant cannot be expected, at that point, to bring up his dissatisfaction with trial counsel's failure to discuss significant matters, about which appellant has no legal knowledge, of which trial counsel has failed to advise him. That a trial court is "ready, willing and able to have the trial" has no bearing on whether a defendant has received effective assistance of counsel. Thus, the trial court's reasons for denying appellant's motion to withdraw his guilty plea failed address the substance of his claim. Here, appellant established by clear and convincing evidence that, because of trial counsel's failure to advise him of the possibility of removing Juror 11 from the jury, appellant was operating under an ignorance of his alternatives that adversely affected his judgment in entering his plea, rendering his waiver of rights involuntary. The trial court abused its discretion in denying appellant's motion to withdraw his guilty plea on the grounds that it was not a voluntary and intelligent choice among the alternative courses open to him.

Disposition

The judgment is reversed. The cause remanded with directions to permit appellant to withdraw his plea of guilty.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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