Opinion
F076101
09-26-2018
THE PEOPLE, Plaintiff and Respondent, v. NESTOR AGUILERA, Defendant and Appellant.
Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 11CM2048HTA)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge. Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and Smith, J.
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INTRODUCTION
Defendant Nestor Aguilera entered into a plea agreement, admitting one count of rape of a victim under 14 years, defendant being older than the victim by more than seven years (Pen. Code, §§ 269, subd. (a)(1), 261, subd. (a)(2); count 7) and lewd and lascivious conduct on a victim under age 14 (§ 288, subd. (a); count 24). Pursuant to the plea agreement, defendant received a stipulated sentence of 15 years-to-life on count 7 and a consecutive sentence of three years on count 24. The remaining counts were dismissed.
Unless otherwise designated, statutory references are to the Penal Code.
In defendant's first appeal (People v. Aguilera (Jan. 6, 2016, F068828) [nonpub. opn.]), this court concluded the trial court erred in failing to allow defendant to discharge his retained counsel. Defendant had a pending motion to withdraw his plea based on claims he was incompetent due to a mental disability and was under the effects of multiple medications when he entered his change of plea. Defendant's appeal was conditionally reversed for him to seek new retained counsel and, if he could no longer afford counsel, for the trial court to appoint him new counsel. New counsel was granted leave to investigate all matters related to defendant's alleged disabilities and incompetency and to pursue a motion to withdraw the plea. If counsel did not pursue a motion to withdraw the plea, or if the court denied the motion, we directed the court to reinstate the judgment.
We incorporate by reference into this opinion our discussion of the proceedings and relevant analysis from our opinion in defendant's prior appeal. --------
On remand, John Ryan was privately retained and substituted for defendant's former counsel of record, Albert Garcia. Counsel filed a motion for defendant to withdraw his plea that was opposed by the prosecutor. On June 15, 2016, the court ordered a further evaluation of defendant by Luis Velosa, M.D. The matter was set for an evidentiary hearing, which will be summarized below. At the conclusion of the evidentiary hearing on July 20, 2017, the court denied the defendant's motion to withdraw his plea and reinstated its original judgment.
Appellate counsel has filed a brief seeking independent review of the case by this court pursuant to People v. Wende (1979) 25 Cal.3d 436.
MOTION TO WITHDRAW PLEA
In his motion to withdraw his plea, defendant contended, through his new counsel's declaration, that: he was very slow mentally, having difficulty understanding mildly complicated statements; he did not understand his guilty plea came with a life sentence as part of the plea bargain; after entry of his plea, defendant came to understand his chances of ever being released from prison were very small; he was unable to articulate to Attorney Garcia or to the court his disagreement to a life term; and he was not able to understand the meaning of the life sentence.
Dr. Velosa reexamined defendant on October 7, 2016. Defendant told Dr. Velosa he was not doing well and was having a lot of difficulties because he was hearing voices, he was getting paranoid, and he had not been given medications for his psychiatric problems. Defendant reported the voices in his head always happened at night just before he was about to sleep. Defendant said he sees a woman in black and white shadows who offers him candy and tells him she is his grandmother. Dr. Velosa explained defendant was experiencing hypnagogic hallucinations, a common psychiatric event taking place when a person is extremely distressed. The phenomenon is not an auditory hallucination or a paranoid delusion.
Dr. Velosa explained that of the 10 medications defendant reported taking, the majority of them were for his hypertension, a thyroid problem, and a kidney problem. None of the medications are psychiatric medications and none of them produce any type of side effects that would affect defendant's mind. Dr. Velosa concluded defendant was not suffering from a psychotic disorder impairing his concept of reality. There was no evidence of psychosis, disorganized, or schizophrenic behavior. Although defendant was suffering from borderline intellectual functioning, his educational problems do not affect his capacity to understand and comprehend legal matters. Dr. Velosa found defendant understood the legal process around his plea bargain in October 2013. Dr. Velosa further found defendant misunderstood the length of his sentence, apparently originally believing he would remain incarcerated his entire existence. Dr. Velosa reiterated that none of the medications defendant was taking affected his mind.
Defendant was also evaluated by Thomas Middleton, Ph.D., a psychologist. Dr. Middleton performed a series of psychological evaluations of defendant. He had reviewed defendant's past medical records, including defendant's psychiatric evaluation by Dr. Velosa.
Dr. Middleton found defendant's presentation during the evaluation to be unbelievable. Dr. Middleton described defendant's clinical presentation as "purposely impaired" and he appeared "to be attempting to 'play dumb.'" Defendant insisted, for instance, he did not understand simple pictures or understand what a plea agreement was. Dr. Middleton described defendant's comments to be an attempt to direct the evaluation to serve his own purposes.
Defendant failed three tests designed to assess the believability of his participation. His current test scores in other tests were not valid measures of his true functioning. Dr. Middleton explained defendant's presentation was not believable and he could not offer a diagnosis based on defendant's current presentation. Dr. Middleton concluded defendant was malingering. The parties stipulated to the admission into evidence of Dr. Middleton's report.
At the evidentiary hearing on defendant's motion, Dr. Velosa testified his competency evaluation of defendant in 2012 showed he was competent to stand trial. Although a report from the Central Valley Regional Center, Inc., diagnosed defendant as suffering from mild retardation, Dr. Velosa disagreed with this conclusion and found defendant suffered from borderline intellectual functioning. Dr. Velosa stated defendant did not suffer from mild retardation. Dr. Velosa's follow-up evaluation showed the same borderline intellectual functioning, but he observed no appreciable differences in defendant in the 2012 and 2016 evaluations. Dr. Velosa explained defendant was able to understand the role of the court, the plea bargain, and the roles of the officers of the court. Dr. Velosa concluded defendant was suffering from some very serious medical conditions, however, none of his medications produced any impairment to his intellectual functioning.
Anna J., one of defendant's sisters, had frequent telephonic contact with defendant while he was in jail prior to his change of plea. She testified defendant told her his attorney had pressured him into entering a guilty plea. According to Anna J., defendant was very confused and did not exactly understand what was happening at the time of the plea. Defendant's other sister testified that at the time defendant entered his change of plea, he spoke to her and said he did not understand the case.
In denying defendant's motion to withdraw his plea, the trial court noted both doctors found defendant competent to stand trial. Dr. Middleton further found defendant was malingering. On the issue of medication, the court noted there was testimony from Dr. Velosa that none of the medications defendant was taking altered his mood or his mind.
APPELLATE COURT REVIEW
Defendant's appointed appellate counsel has filed an opening brief summarizing the pertinent facts, raising no issues, and requesting this court to review the record independently. (People v. Wende, supra, 25 Cal.3d 436.) The opening brief also includes the declaration of defendant's counsel indicating defendant was advised he could file his own brief with this court. By letter on February 7, 2018, we invited defendant to submit additional briefing. To date, he has not done so.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.