P. v. Carpenter

Filed 10/5/06 P. v. Carpenter CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Leslie A. Dunn, Judge. Affirmed.

Law Offices of Joshua W. Glotzer and Joshua W. Glotzer for Defendant and Appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steve E. Mercer and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

Appellant Werner Carpenter was charged with 21 counts of sexual offenses. He pled no contest to three counts of rape by use of drugs in violation of Penal Code^[1] section 261, subdivision (a)(3), and two counts of sexual penetration of a person incapable of giving consent or unconscious in violation of section 289, subdivision (d). Appellant later moved to withdraw his plea. This motion was denied. Appellant was sentenced to a total of 16 years in state prison. Appellant appeals from the judgment of conviction contending that the trial court abused its discretion in denying his motion to withdraw his plea and erred in denying his counsel time to conduct discovery and investigation in preparation for the motion to withdraw the plea. We affirm the judgment of conviction.

Facts^[2]

The charges against appellant in this matter involved three women: Holly H., Stephanie C., and Cindy U.

Holly met appellant at a bar and agreed to go home with him, but told him that she would not have sex with him. At appellant's home, Holly drank a shot of rum which made her sick and disoriented. She laid down, then "went blank." Sometime later, she woke up naked with appellant on top of her. He attempted to insert his penis into her vagina. She shoved him off and was able to leave the apartment.

Upon reaching home, Holly was very ill. She later returned to appellant's apartment with her teenage son to retrieve a jacket which she had inadvertently left behind.

Stephanie also met appellant at a bar after drinking four or five Long Island Ice Teas. She went home with him. At appellant's home, she drank a shot of Jagermeister. Afterward, she went in and out of consciousness for several hours. At some point, she found herself on the floor on her knees with her hands handcuffed behind her. At another point, appellant photographed her. Appellant also inserted a dildo into Stephanie, penetrated her rectally and forced her to orally copulate him.

Appellant drove Stephanie home the next day. There, she became very ill and vomited several times.

After these incidents were reported to police, police obtained a search warrant and seized appellant's computer. They found numerous photographs of naked women, some bound, some unconscious, many involved in some form of sexual intercourse. The police department publicized appellant's photograph. Cindy apparently came forward as a result of this publicity and identified herself as one of the women whose photograph was on appellant's computer. No details of the circumstances of the crimes against Cindy are contained in the record. Appellant has pled no contest to one count of raping Cindy by use of drugs.

In connection with his motion to withdraw his plea, appellant contended that the sex and photography were consensual, that the women were drunk or ill with the flu or both, and that he himself became ill with the flu the day after his encounter with Stephanie.

Discussion

1. Consequences of plea

Appellant contends that his first counsel, Kissell, was ineffective in failing to advise him of the consequences of pleading no contest as opposed to going to trial.

A trial court's ruling on a motion to withdraw a guilty plea is reviewed under an abuse of discretion standard. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) The test of abuse in such circumstances is whether, after consideration of all relevant factors, there was good cause shown for granting the motion and whether justice would be promoted thereby. (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 798.) Good cause must be shown by clear and convincing evidence. (Id. at p. 797.) In making such a determination, a reviewing court must adopt the trial court's factual findings if they are supported by substantial evidence.

Trial counsel's failure to advise a defendant of his correct sentencing exposure following a trial falls below an objective standard of reasonable performance. (In re Alvernaz (1992) 2 Cal.4th 924, 937.)

Here, appellant filed a declaration stating that Kissell misadvised him on several aspects of his sentencing exposure if he were convicted after trial, including telling him that he would receive a life sentence and be sent to Pelican Bay and killed by other inmates. He also filed declarations from several friends, all of whom stated that Kissell told them that if appellant were convicted, he would be sent to Pelican Bay and die.^[3]

The court which decided appellant's motion to withdraw his plea was the same court which took his plea. The court reviewed the transcript of the plea hearing and found that appellant was correctly advised on the record of his maximum sentence exposure after conviction and of the limitations on conduct credits. The court noted that appellant was expressly asked if anyone had made any threats or promises to get him to enter into the plea agreement, and appellant replied, "No." The court also noted that it had asked appellant if he understood everything that had been explained so far, and appellant replied, "Yes." The court found that there was nothing to indicate that appellant was confused during the plea proceedings.

The court also considered a declaration filed by Kissell in which he stated that he informed appellant that his potential prison term, as charged, was 26 years.^[4] He also told appellant that the prosecutor had informed him that she intended to add allegations pursuant to section 667.61 which, if found true, would increase his sentence to life in prison. Kissell also declared that he advised appellant that he would have to serve 85% of any sentence imposed before becoming eligible for parole. Kissell stated that appellant asked him about the various types of penal facilities in which he might be housed. Kissell told him that Pelican Bay and three other high security institutions were very harsh and violent. Appellant asked Kissell if he would be sent to a lower security institution if he accepted the plea agreement, and Kissell told him that it was likely that he would. Kissell denied telling appellant that he would be killed in prison if he received a life sentence.

The court found appellant's statement that he was misadvised by Kissell to be not credible. The transcript of the plea agreement supports the court's finding, as does Kissell's declaration. Thus, we must adopt those findings. (People v. Fairbank, supra, 16 Cal.4th at p. 1254.) We see no abuse of discretion in the trial court's ruling that, since there was no misadvisement, there was no ineffective assistance of counsel and no good cause to withdraw the plea.

2. Failure to investigate

Appellant contends that Kissell failed to investigate his case adequately, and concealed or mischaracterized favorable evidence, so that appellant believed that he had no viable defense. He contends that his false belief caused him to plead no contest.

"Defense counsel have the obligation to investigate all defenses, explore the factual bases for defenses and the applicable law.' [Citation.]" (In re Vargas (2000) 83 Cal.App.4th 1125, 1133.) "The defendant can be expected to rely on counsel's independent evaluation of the charges, applicable law and evidence, and of the risks and probable outcome of trial. [Citations.]" (In re Alvernaz, supra, 2 Cal.4th at p. 933.)

The entry of a plea must be a voluntary and intelligent choice among the alternative courses of action open to the defendant. The voluntariness of a plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases. (In re Vargas, supra, 83 Cal.App.4th at p. 1133.)

In his declaration filed in support of his motion to withdraw his no contest plea appellant states that Kissell met with him only two times, and did not provide him with a copy of the police report or discovery in this matter. He also contends that Kissell told him that he contacted or attempted to contact potential witnesses, and succeeded in contacting some but not others. He claims that Kissell did not tell him which witnesses he spoke with, or what the content of the conversations was. Finally, appellant contends that Kissell told him that he could not confirm that Stephanie had oral intercourse with appellant in the morning. Appellant states that he has now learned that Kissell did not do any investigation, did not attempt to contact any witnesses, and concealed from him an "email" which Stephanie provided to police which acknowledged that she orally copulated appellant. He further states that if he had known of Kissell's failures and concealment, he would not have pled no contest.

In a declaration provided to the trial court, Kissell stated that he and his associate met with appellant at least eight times. He performed an investigation, interviewed at least four witnesses, and went over the contents of all the discovery provided by the People with appellant, including a two-page document, which appears to be the "email" from Stephanie. The trial court found Kissell's statement that he did investigate the case to be credible and that the investigation was adequate. Thus, appellant's claim that Kissell failed to investigate his case adequately fails.

Appellant's substitute counsel contends, in effect, that even if Kissell investigated the case, he misled appellant by telling him that there was no evidence which was helpful to his defense. He contends that in fact there were witnesses who would have been helpful to appellant and that Stephanie’s "email" would have corroborated much of appellant's account of his encounter with her. He further contends that appellant's investigation of this case constituted ineffective assistance of counsel.

Appellant has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, appellant must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' [Citations.]" (People v. Thomas (1992) 2 Cal.4th 489, 530-531.)

The Stephanie C. document was admitted at the hearing on the motion to withdraw appellant's plea.^[5] Both parties presented argument about the significance of the document. It does contain some statements by Stephanie which, if viewed out of context, could indicate that the sexual encounter was consensual. For example, the morning after the encounter, Stephanie gave appellant her telephone number, allowed him to drive her home, and wished him a happy birthday. Stephanie's statement as a whole, however, is consistent with having been under the influence of a date rape drug. The document states that she "blanked out" for large portions of the night, and was ill and disoriented the next morning. It also states that she was photographed and handcuffed by appellant without her consent, was sodomized without her consent while semi-conscious and was forced to orally copulate appellant. In his declaration, Kissell stated that he was aware of this document, discussed it at length with appellant and did not view this document as exculpatory. A reasonably competent attorney could find that document was not helpful to appellant.

In his declaration filed in support of appellant's motion to withdraw his plea, appellant's substitute counsel states that Kissell represented to him that he had interviewed three witnesses and that none of them would be helpful to appellant's case. He contends that two of the witnesses, Christina and Michelle, would have been helpful. He also contends that Kissell failed to interview an additional witnesses, Mindy Z., who would have been helpful.

The record in this case does not show what, precisely, Michelle and Christina told Kissell. The two women may not have given Kissell any useful information. If the women gave Kissell the same information they gave substitute counsel, we see nothing misleading or incompetent in Kissell's conclusion that the information was not helpful to appellant.

Both women told substitute counsel that appellant was not violent, and could thus have served as character witnesses. Appellant's crime was not primarily one of violence, however.^[6] A reasonably competent attorney could find that these statements were not helpful to appellant.

Christina also told substitute counsel that she had a consensual sexual relationship with appellant, and that appellant took photographs of her during sex, with her consent. We see no relevance to this information. The fact that one woman is willing to have sex and to have her photograph taken says nothing about another woman's willingness.

Michelle also told substitute counsel that appellant told her that he was sick with the flu the day after the Stephanie C. incident. Appellant's statement to Michelle is hearsay, and he does not offer any theory of admissibility.

Substitute counsel is correct that Kissell did not interview Mindy. He contends that Mindy would have corroborated appellant's claim that Holly came to appellant's apartment alone the day after the rape to retrieve her jacket and did not act afraid or angry, and thus would also have impeached Holly's credibility. In his declaration, Kissell stated that he relied on a statement Mindy made to the district attorney and police that did not indicate that she was with appellant on the day after the Holly H. incident. He did not interview her himself for fear that the statement would become less favorable to the defense.

We see no incompetency in Kissell's decision. Even if he had contacted Mindy, and she had stated that she was with appellant the day after the Holly H. incident, this statement would have been only marginally helpful to appellant since she had already made a contrary statement to police. Further, when eventually contacted by substitute counsel, Mindy apparently said only that she was in appellant's apartment, probably in March 2003, when a white female came up to the apartment to pick up a jacket. The woman was alone. This statement is extremely vague and of very little value, particularly when considered in light of her earlier statement to police.

Appellant also contends that Kissell should have contacted and investigated some of his former girlfriends who would have served as character witnesses. Appellant further contends that Kissell should have requested and reviewed the hard drive from appellant's computer which was seized by police.

Appellant has not identified the girlfriends, and there is nothing in the record on appeal to indicate that the testimony of these women would have been helpful. Kissell did interview one witness who, it turned out, would have been damaging to appellant's defense. Thus, even assuming that Kissell should have investigated further, appellant has not shown prejudice from any incomplete investigation by Kissell.

Kissell declared that he did go over items recovered by the police from appellant's hard drive. We find this to be a reasonable investigation. Kissell did not have the computer examined to determine if the information on it had been compromised. An attorney need not investigate every possible problem with the People's case, no matter how remote or unlikely it is that such a problem exists. Kissell did declare that he showed items from the computer to appellant, and that appellant never indicated to him that any of the items were compromised or tampered with. Appellant, who certainly knows the contents of his computer, does not declare that he noticed anything suspicious about those items. Indeed, he offers no suggestion as to what sort of compromise would have been helpful to the prosecutor and harmful to him. Thus, appellant has not shown any harm from Kissell's omission.

In summary, there was evidence, in the form of Kissell's declaration, that he did investigate appellant's case and did discuss the People's case against appellant with him. The trial court found Kissell credible. Kissell did not view the statements made by Christina, Michelle, Holly, or Stephanie as helpful to appellant's defense. The trial court impliedly found, and we have explicitly found, that a reasonably competent attorney could reach the same conclusions. Kissell did not investigate former girlfriends or appellant's computer as thoroughly as appellant would have liked. We do not find Kissell's investigation inadequate, and appellant has not shown that a more thorough investigation would have produced helpful information.

3. Other grounds to set aside a plea

"Pleas may be set aside if defendants are unduly influenced to accept a plea because their counsel is obviously not prepared to proceed [citation], or the defendants represented by counsel entered into the pleas as a result of fraud or duress." (In re Vargas, supra, 83 Cal.App.4th at p. 1143.)

Good cause exists to set aside a guilty plea is shown when the defendant demonstrates that the plea was entered as the result of mistake, ignorance, inadvertence, or overreaching. (People v. Caban (1983) 148 Cal.App.3d 706.)

Appellant contends that the combination of Kissell's incorrect advice and false promises about his sentence and Kissell's failure to investigate case constituted fraud and duress, and that he entered his plea as a result of that fraud and duress. He further contends that Kissell was obviously not prepared to proceed to trial, and that he was unduly influenced to enter a plea as a result. Appellant also contends he relied on Kissell's misstatements about his potential sentence and mischaracterization of the strength of his defense in entering his plea and so entered that plea as a result of mistake, ignorance, inadvertence, and overreaching.

As we discuss above, we see no abuse of discretion in the trial court's finding appellant's statement that he was misadvised by counsel about sentencing and incarceration to be not credible. We also see no abuse of the trial court's findings that Kissell did adequately investigate the case. Thus, we reject appellant's claim that fraud or duress was present in this case, that Kissell was not prepared for trial, and that mistake, ignorance, inadvertence, or overreaching was a factor in his plea decision.

4. Discovery

Appellant contends that the trial court abused its discretion when it denied his motion to continue the hearing on the motion to withdraw his plea. We see no abuse of discretion.

"Continuances shall be granted only upon a showing of good cause." (§ 1050, subd. (e).) "'The granting or denial of a continuance during trial traditionally rests within the sound discretion of the trial judge.' [Citation.] 'The burden is on [the defendant] to establish an abuse of judicial discretion . . . .' [Citation.] '[A]n order of denial is seldom successfully attacked.' [Citation.]" (People v. Beeler (1995) 9 Cal.4th 953, 1003.)

In ruling on a motion for a continuance, "[a]n important factor for a trial court to consider is whether a continuance would be useful. [Citation.]" (People v. Beeler, supra, 9 Cal.4th at p. 1003.) "[T]o demonstrate the usefulness of a continuance a party must show both the materiality of the evidence necessitating the continuance and that such evidence could be obtained within a reasonable time." (Ibid.)

Here, in his May 4 request for a continuance, appellant did not show the materiality of the evidence or that it could be obtained within a reasonable time. A temporary substitute for appellant's substitute counsel asked the court to "push this out three weeks because he is filing a motion to set aside the plea. There is some outstanding discovery that he has not received, and there is two witnesses in which he will have ample time to interview on the matter." Counsel did not identify the witnesses or the nature of the outstanding discovery and did not explain how or why they were material.

Appellant also did not show why this evidence had not been obtained earlier. Appellant's substitute counsel indicated as early as February 2 that he was considering a motion to withdraw appellant's plea. Originally, the motion to withdraw was due to be filed on April 13. On its face, this seems ample time to have completed discovery.

Appellant did not demonstrate good cause for a continuance. We see no abuse of discretion in the trial court's denial of this motion.

Appellant was permitted to file his motion to withdraw late, on May 16. Thus, he did in effect receive a 12-day continuance. When appellant did file his motion to withdraw his plea, he included a renewed request for a continuance in that motion on the grounds that he had not received a copy of the information from his hard drive or an investigator's memo drafted by Kissell's investigator, and he was still trying to locate Mindy.

By the time of the hearing on the motion to withdraw on May 24, appellant's new counsel had contacted Mindy and obtained a statement from her. He was able to have this statement admitted at the hearing. It appears that the investigator's memo related to an interview of Christina. New counsel was able to speak with Christina and offer evidence at the hearing of what she would have testified to. Appellant effectively received an additional eight days to complete witness interviews, a time he used so effectively that his request for a continuance to speak to these witnesses had become moot by the time his motion was heard.

Appellant had not obtained a copy of the hard drive by the time of the hearing. After the motion to withdraw was denied, the trial court noted that it was denying appellant's motion for a continuance based on outstanding discovery.

We see no abuse of discretion in this decision. Appellant's stated purpose in seeking the computer was to make sure that the information on it had not been compromised, to obtain information on other women who had consensual sex with appellant, and to locate Mindy. Appellant offered no reason to believe that the information on the computer had been compromised, and no suggestion of what such a compromise would have been.^[7] As we discuss, supra, the fact that there were women who had been willing to have various forms of sex with appellant and be photographed by him while doing so is in no way helpful to his defense. Appellant had located Mindy by the time of the hearing. Thus, the computer was no longer material by the time of the hearing. We see no abuse of discretion in the trial court's denial of a continuance to obtain the computer.

5. Federal claims

Appellant contends that Kissell's misadvisement of his potential sentence and failure to investigate his case violated of his Sixth Amendment right to counsel, as did the trial court's denial of his motion to withdraw his plea. We have found no error in the trial court's finding that Kissell did investigate appellant's case and that appellant was not misadvised of his potential sentence, and no error in the trial court's denial of appellant's motion to withdraw his plea. Accordingly, we see no violation of appellant's Sixth Amendment rights.

Appellant also contends that the denial of his motions for a continuance violated his right to due process. Appellant has waived this claim by failing to raise it in the trial court. (See People v. Kennedy (2005) 36 Cal.4th 595, 612.) Further, assuming that it were not waived, we would see no violation,. Appellant received an informal continuance and was able to obtain all the material information he sought without a formal continuance.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.

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

^[2] No preliminary hearing or trial was held in this matter. These facts are taken from the probation report, the victim's statements at sentencing and the motion to withdraw appellant's plea.

^[3] The friends stated that Kissell made this remark after appellant had pled no contest.

^[4] Kissell's declaration was not part of the record on appeal. The declaration was part of the record in the superior court. On our own motion, we take judicial notice of this declaration. (Evid. Code § 452, subd. (d).)

^[5] We have previously granted appellant's request to augment the record with this document. The document is unsigned and undated. At the hearing on the motion, the prosecutor clarified that the document was actually "typed up notes from Stephanie C." It is not clear who typed up those notes.

^[6] It does not appear that substitute counsel told the women that appellant was charged with rape by use of drugs and with other sexual acts on unconscious victims. There is nothing in the record to indicate if the women would have found such acts to be out of character for appellant or not.

^[7] Appellant's new counsel was able to view the prosecutor's files of items taken from the computer and to make copies of any item that counsel did not have.