P. v. Osuna

Filed 9/29/06 P. v. Osuna CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Raymond Edwards, Jr., Judge. Affirmed.

Antonio Fortanel Osuna pleaded guilty to two counts of lewd acts on a child within the meaning of Penal Code^[1] section 288, subdivision (a). Osuna also admitted to allegations he committed these acts against multiple victims within the meaning of section 667.61, subdivisions (b), (c) and (e). He was sentenced to a prison term of 15 years to life. Osuna appeals, arguing the trial court abused its discretion in denying his motion to withdraw his guilty plea. We affirm the judgment.

FACTS

In January 2005 police officers began investigating a report of child molestation allegedly occurring at a licensed daycare facility run by appellant's wife. Before and after appellant's arrest, police officers and other investigators interviewed two victims, C. Y. and M. G.

A. C .Y.

Between January 20, 1998, and September 1, 2003, appellant sexually molested C. Y. C. Y. reported that when she was five-years old, appellant began taking her to his room and touching her whenever appellant's wife left the house. Generally, appellant would touch C. Y.'s vaginal area with his hand and take her clothes off. Appellant sometimes took his own clothes off too. According to C. Y., appellant did this to her twice a week. On these multiple occasions, appellant would tell C. Y. to go into his bedroom; he also physically forced her into the bedroom and sometimes the bathroom. He would then lock her inside with him.

On some occasions, appellant watched pornographic videos while touching C. Y. One time appellant asked C. Y. to put her mouth on his penis. She refused. Appellant then showed C. Y. a video of a woman putting her mouth on a man's penis and asked if C. Y. wanted to do that to him. She again refused.

Appellant last touched C. Y. when she was in the fifth grade. While lying on the couch at appellant's house, she felt appellant put his hands up her shorts. She pulled away and repositioned herself so he could not touch her. He then left.

B. M .G.

Between March 13, 2002, and January 23, 2005, appellant sexually molested M. G. Appellant's routine was to molest M. G. when he was taking her home from daycare in the evening. Appellant first touched M. G.'s breasts with his right hand while he was driving her home in his pick-up truck. M. G. said "hey" to appellant and he stopped. At the time, M. G. was 12 years old.

On several occasions appellant took M. G. to a vacant house under construction, a house he was working on. He would take her into the house and make her undress in front of him. Appellant made M. G. bend over while he put his penis on her "butt" as he stood behind her. His hand was in her "private area" with his index finger in her vagina. He asked M. G. if she loved it. She never answered him. M. G. told a police officer that appellant tried putting his penis in her vagina on at least two occasions at the vacant house. She did not think he actually put his penis inside her; he just put it against her "butt" and rubbed her with it. Another time at the house, appellant bit M. G.'s breasts after he pulled her shirt and bra up.

Appellant last touched M. G. on Sunday, January 23, 2005. She was at appellant's home because her mother had to work. While M. G. was in the room of appellant's daughter, appellant walked into the room and said: "Are your boobs getting bigger?" He then asked if he could see them. She did not answer. Appellant then walked up to M. G. from behind and over her clothing rubbed her right breast. M. G. told him to stop and said he was going to get in trouble. Appellant turned and walked away without saying anything.

DISCUSSION

Appellant argues the trial court erred in not allowing him to withdraw his plea of guilty because he entered the plea without the thought and consideration necessary to render it knowing and voluntary. Specifically, appellant contends his plea was not knowing and voluntary. He bases this contention on the following: his passive, meek and unassertive personality caused him to be overwhelmed by the authority figures discussing his plea options; his inexperience with the criminal justice system; and the amount of time he had to consider the plea bargain. A. Procedural Background

On April 22, 2005, appellant was charged with nine counts of lewd acts on a child with regard to C. Y. and twelve counts of that offense with regard to M. G. Appellant pleaded not guilty to these charges and posted bail.

On June 30, 2005, appellant and his counsel, Nicholas DePento, appeared for trial at 9:00 a.m. Before the case was officially called, there was discussion about settlement. The prosecution offered to withdraw all but two counts against appellant if he pleaded guilty. At 10:30 a.m., well over an hour after the offer was made, appellant pleaded guilty to counts 5 and 16.

Before appellant pleaded guilty, the court went to great lengths to ensure he understood his decision. The judge put appellant under oath and asked whether he had taken any drugs or alcohol in the past 24 hours. The court then asked appellant if he had any questions. Appellant answered "no" to each of these inquiries. Further, the court asked whether appellant fully understood the pleading form and discussed the plea bargain with his attorney, whether he told his attorney everything about the case and whether he was satisfied with his attorney's services. Appellant answered each of these inquiries affirmatively.

The court then proceeded to read counts 5 and 16. Appellant pleaded guilty to each count and admitted to allegations he committed the crime against multiple victims.

Next, the court focused on the competency of appellant's counsel, Mr. DePento. The court asked Mr. DePento whether he had "gone over the entire change-of-plea form" with appellant and answered all of appellant's questions. Moreover, the court inquired whether Mr. DePento had thoroughly discussed the case with his client, including all possible defenses and the consequences of the plea. Mr. DePento answered each of these inquiries affirmatively.

After the court accepted and entered appellant's guilty plea, the court imposed additional terms and conditions. Among other things, the court required appellant to maintain daily phone contact with Pretrial Services (PTS), abide by a curfew, surrender his naturalization certificate and not be alone with minor children. When asked whether he understood these conditions, appellant stated: "The only thing that I understand is that I cannot be with other children. And what about my children?" The court then proceeded to discuss the conditions in detail with appellant. During this colloquy, appellant sought specific clarification from the judge about the following: (1) timing of the daily phone calls; (2) the reporting of new arrests; and (3) an explanation of what a naturalization certificate is. Similarly, appellant sought clarification from the trial judge when appellant did not understand his right to have the judge serve as his sentencing judge. Appellant clearly said: "I did not understand that." The court then explained in detail appellant's right.

Three months after pleading guilty, appellant changed his mind and filed a notice of motion to withdraw his plea and a declaration setting forth his reasons. Appellant stated he pleaded guilty because he was "told to do it" and he felt pressured with no time to think about and discuss his options. The notice of motion and declaration were filed by appellant's new attorney, James Brown.

On November 2, 2005, before appellant's sentencing hearing, the court heard oral argument regarding the motion. Mr. Brown argued appellant pleaded guilty only because he felt rushed for time and pressured to make the decision due to his inexperience with law enforcement and the judicial process. However, Mr. Brown later said the reason appellant "entered the plea was because he had concerns for the victims, the witnesses and their families, and that's not really a reason to enter a plea." Mr. Brown also said the following: "Now, I'll concede at the outset, your honor, that I'm not attributing any bad motives to any of the parties involved."

After Mr. Brown finished arguing, the prosecution called appellant's former attorney, Nicholas DePento, to testify concerning appellant's decision to plead guilty. Mr. DePento testified that on the morning of the trial date he spoke with appellant about his plea options outside the courtroom. Appellant had enough time outside of court to discuss his options in detail with his attorney, his sister and another gentleman. He was also able to communicate with his wife using a cell phone. Mr. DePento testified that the "conversation centered more on terms of the distinction between a 15-to-life sentence or a determinate sentence." Mr. DePento further testified that he made sure appellant understood he had the option of going to trial. And finally, Mr. DePento testified that before going back into the courtroom appellant specifically gave him the authority to begin filling out the change of plea form.

After Mr. DePento's testimony, the prosecution argued defense counsel failed to demonstrate by clear and convincing evidence that appellant entered his guilty plea against his free will. The prosecution noted that before entering his plea, appellant had several months out of custody to become familiar with his case, and he had two hours to think about the plea offer on the morning of June 30, 2005.

Following argument from both sides, the court said appellant failed to meet his burden of showing good cause to withdraw the plea of guilty. The court recounted how appellant assured the court of his thorough discussion of the case with his attorney and of his satisfaction with his lawyer's services. Because of appellant's satisfaction, and his prior willingness to engage the court when he had questions or was confused, the judge said: "I am convinced that the defendant's plea was entered into freely and voluntarily with a knowing and intelligent understanding of the proceedings." The judge then denied the motion to withdraw the guilty plea and sentenced appellant to two concurrent sentences of 15 years to life.

B. Governing Law

1. Good Cause

A defendant may seek to withdraw a guilty plea under section 1018. The statute states in relevant part: "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." The California Supreme Court has defined good cause as "[m]istake, ignorance or any other factor overcoming the exercise of free judgment." (People v. Cruz (1974) 12 Cal.3d 562, 566.) A defendant's free judgment may be overcome by such factors as inadvertence, fraud or duress. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)

In short, a defendant seeking to withdraw a guilty plea must prove his free judgment was defeated or frustrated by some extrinsic force. However, a defendant's claim that he reluctantly entered the plea due to external influence is not an automatic showing of good cause. Indeed, a defendant's reluctance or unwillingness to change his plea "is not synonomous [sic] with an involuntary act." (People v. Urfer (1979) 94 Cal.App.3d 887, 892, fn. omitted.) Even a defendant's mere reluctance to follow the advice of his attorney is not a factor affecting the defendant's free and clear judgment. (Ibid.) This is true even if the defendant's decision was against his better judgment. (People v. Hunt (1985) 174 Cal.App.3d 95, 104.) Moreover, we have declared it "would be a difficult and sensitive task" for a reviewing court to delineate between "a defense attorney's aggressive but proper advice to plead guilty and oppressive conduct leading to an involuntary plea." (People v. Weaver (2004) 118 Cal.App.4th 131, 146.)

Also, a plea cannot be attacked on the basis it was made in ignorance by simply alleging "the defendant did not correctly assess every relevant factor entering his decision." (People v. Knight (1987) 194 Cal.App.3d 337, 344.) In fact, a motion to withdraw a guilty plea is properly denied so long as " 'it is shown that the accused "acted with knowledge of the facts and on advice of his counsel." ' " (People v. Alexander (1955) 130 Cal.App.2d 529, 531.) In addition, a withdrawal of a guilty plea is not permissible based solely on a defendant's worried or anxious state of mind. (People v. Mills (1937) 22 Cal.App.2d 725, 727.) Similarly, a defendant cannot withdraw his plea "simply because [he] has changed his mind." (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)

Further, when a defendant claims he was unduly pressured to make a plea, he should demonstrate how "he was under any more . . . pressure than every other defendant faced with serious felony charges and the offer of a plea bargain." (People v. Huricks, supra, 32 Cal.App.4th at p. 1208.) For example, clearly excessive judicial involvement in plea negotiations or threats of violence will constitute undue pressure. Concerning judicial involvement, we have set forth the following: "[W]hen the trial court abandons its judicial role and thrusts itself to the center of the negotiation process and makes repeated comments that suggest a less-than-neutral attitude about the case or the defendant, then great pressure exists for the defendant to accede to the court's wishes." (People v. Weaver, supra, 118 Cal.App.4th at p. 150.) Concerning threats of violence, we recently held a guilty plea is probably involuntary if it "follows a threat of physical violence." (People v. Sandoval (2006) 140 Cal.App.4th 111, 126 [defendant's life was threatened by codefendant].)

Finally, any showing of good cause to withdraw a guilty plea must be supported by clear and convincing evidence. (People v. Cruz, supra, 12 Cal.3d at p. 566.) In other words, a defendant cannot establish good cause by asserting vague claims of personal inexperience, anxiety or feelings of external pressure without a factual demonstration of how these forces actually thwarted the exercise of his free judgment. (See People v. Urfer, supra, 94 Cal.App.3d at p. 892.)

2. Standard of Review: Abuse of Discretion

A trial judge is properly vested with discretion to grant or deny a motion to withdraw a guilty plea; and the reviewing court must presume the trial judge properly applied the law when exercising that discretion. (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 798; People v. Mack (1986) 178 Cal.App. 3d 1026, 1032.) Also, the reviewing court cannot override a trial judge's decision to deny a motion unless an abuse of discretion is clearly demonstrated. (In re Brown (1973) 9 Cal.3d 679, 685.) Moreover, " ' "[w]here two conflicting inferences may be drawn from the evidence it is our duty to adopt the one supporting the challenged order." ' " (People v. Nance, supra, 1 Cal.App.4th at p. 1460, fn. 4, quoting People v. Harvey (1984) 151 Cal.App.3d 660, 667.) These rules are grounded in the policy that "guilty pleas . . . should not be lightly set aside and that the finality of such proceedings should be encouraged." (People v. Urfer, supra, 94 Cal.App.3d at p. 893, fn. 6, citing Blackledge v. Allison (1977) 431 U.S. 63 [97 S.Ct. 1621].)

C. Analysis

Appellant has failed to clearly demonstrate an abuse of discretion by the trial judge in this case. Appellant claims the judge should have granted the motion based on good cause because appellant's free judgment was overwhelmed by authority figures, his inexperience and the lack of time to consider his options. However, the record and facts presented do not establish clear and convincing evidence appellant was operating under mistake, ignorance, inadvertence, fraud or duress.

1. Authority Figures

The record reveals no evidence that appellant's freedom to express his will was in any way defeated by the trial judge or his attorney. The trial judge did not engage in any improper discussions with appellant or appellant's counsel during the plea bargain process. Unlike Weaver, the record in this case is void of any reference to the judge showing any bias against appellant. He never directed appellant to plead in a particular manner and he took all necessary precautions to ensure appellant was entering his plea based on his own free will and choice. Unlike Sandoval, appellant was never threatened with physical violence if he did not plead guilty. In addition, on numerous occasions during the colloquy, appellant questioned the judge about several matters and even refused to relinquish his right to have a different judge serve at his sentencing. This is not the behavior of a man unable to exercise free judgment.

Appellant's defense counsel, Mr. DePento, likewise did not unduly pressure appellant to plead guilty. Mr. DePento advised appellant of his options and may have even recommended appellant accept the prosecution's offer. But this cannot be considered duress or undue pressure. If so, the role of defense counsel would be severely diminished. Indeed, Mr. DePento would have been negligent had he not offered his professional opinion. In the end, Mr. DePento testified it was appellant's ultimate choice whether to plead guilty or go to trial. Even if appellant was reluctant to follow his counsel's advice, it was still his choice--undeniably the exercise of his free judgment. Likewise, allegations that appellant was overwhelmed by his inability to stand up for himself are not persuasive because of the manner in which he engaged both the judge and his attorney.

2. Inexperience and Amount of Time to Consider Plea Bargain

Appellant's inexperience with the criminal justice system cannot be considered a factor completely overpowering his ability to think about his situation and make an informed choice based on advice of counsel. Appellant was arrested in January 2005 and he pleaded guilty in June 2005. He had five months to receive advice from his attorney and to experience preliminary hearings in court. Consequently, there is no clear and convincing evidence showing appellant's lack of experience defeated his free judgment.

Similarly, the amount of time allotted appellant to think about the offer and discuss it with his attorney, family and friends does not constitute a showing of good cause to grant a withdrawal of his plea. The trial was upon him. However, he was free to leave the courtroom to discuss the matter with anyone he desired and to make telephone calls. He did both. We defer to the sound discretion of the trial judge in this matter and find appellant's free judgment was not burdened by the amount of time given.

The judgment is affirmed.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.

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^[1] All further statutory references are to the Penal Code unless otherwise stated.