Opinion
H029404
8-7-2008
THE PEOPLE, Plaintiff and Respondent, v. MARK DOUGLAS BESWETHERICK, Defendant and Appellant.
Not to be Published
This matter has been transferred here from the Supreme Court (S149804) with directions to vacate our previous decision (People v. Beswetherick (December 20, 2006) H029404 [nonpub. opn.]) and to reconsider the cause in light of People v. French (2008) 43 Cal.4th 36. In our earlier opinion, we affirmed a judgment after the trial court denied appellants motion to withdraw his plea and sentenced him in accordance with a negotiated disposition. We held, in part, that appellants challenge to the trial courts authority to impose an upper term had been rejected in People v. Black (2005) 35 Cal.4th 1238. Subsequently, Black was abrogated by the United States Supreme Court in Cunningham v. California (2007) 549 U.S. 270 . (French, supra, 43 Cal.3d 41.) We hereby vacate our previous decision. We address the challenge on the merits as well as reiterate the remaining part of our prior opinion.
The parties have elected not to file supplemental briefs.
Our discussion of the other issue raised by appellant is identical to our previous opinion in this case and is included only because we have been directed to vacate our earlier opinion.
Appellant pleaded no contest to attempted murder with a firearm enhancement, assault with a firearm, and exhibiting a weapon at a peace officer. (Pen. Code, §§ 664/187, 12022.5, subd. (a), 1203.06, 245, subd. (a)(2), 417.8.) Seven months later, through new counsel, he filed a motion to withdraw his plea. The trial court denied the motion and sentenced appellant to 21 years in state prison.
Appellant contends that "the conditions under which he pleaded rendered his plea unconstitutional on several grounds." He further contends, "The sentence must be reversed because imposition of the aggravated term without a waiver violated appellants Sixth Amendment right to a jury trial and his Fourth Amendment right to due process of law." We affirm.
Background
Around midnight on July 11, 2003, appellant bought beer at a 7-11 market and remained in the store. The store clerk asked appellant to leave. Appellant refused at first but eventually left. Appellant returned and asked the clerk whether he was still upset about appellant not leaving earlier. The clerk asked appellant to leave. Appellant pulled out a handgun, pointed it at the clerk, and said "Ill kill you." Appellant tried to pull the trigger but the gun failed to fire. The clerk jumped over the counter and fled yelling for help. A witness with the clerk saw appellant raise the gun towards them and cock it back with his right hand. The police arrived and met with the clerk. Appellant walked out of the store with the gun in his hand. The officer told him to put the gun down. Appellant said, "No, just shoot me" and pointed the gun at the officer. Appellant suffered gunshot wounds and was taken for medical treatment. His blood alcohol level was .24 percent.
On July 23, 2003, appellant was charged by complaint with one count of attempted murder of the clerk with an enhancing allegation for the personal use of a handgun, one count of assault with a firearm, and one count of exhibiting a firearm at a peace officer. Appellants family arranged for him to be represented by Phil Pennypacker who retained Dr. Leonard Donk, a forensic psychologist, to review the police reports and medical records and interview appellant. Following surgery for his gunshot wounds, appellant was placed in a medically induced coma for weeks. Later, as appellant was recovering from his gunshot wounds in the jail infirmary, Pennypacker met with him.
On September 4, 2003, Pennypacker appeared with appellant for a bail reduction motion. In court, the prosecutor, Dana Overstreet, played a videotape of the events at the 7-11. Appellant watched as much of the video as he could. Later, appellant said that his view of the tape had been partially obstructed. Overstreet told Pennypacker that if the motion went forward she would file new charges, including three counts of attempted premeditated murder. After consulting with appellant, Pennypacker withdrew the bail reduction motion.
Appellant was arraigned on October 21, 2003, and shortly thereafter Pennypacker was appointed to the superior court. At Pennypackers suggestion, Tony Christensen became involved with appellants case. Christensen had been handling criminal cases since 1972 and had handled "mental defenses, capacity questions, insanity questions, [and] a number of mental health issues through the years."
Around this time, the jail medical staff provided appellant with Neurontin and Depakote for bipolarism and anxiety and Prozac for depression. He was also taking Vicodin for pain. Years earlier appellant had been diagnosed with bipolar disorder and had been prescribed medication but was non-compliant with this treatment. This time appellant felt that his anti-anxiety medication was not working and had it discontinued.
Appellant told Christensen that he had no memory of the events at the 7-11 or the hours leading up to them. In late October, Christensen met with appellant twice, gave him copies of the police reports, and talked to him about the videotape of the incident.
On November 4, 2003, Christensen made a special appearance with appellant while appellants family finalized the arrangements to retain Christensen. Christensen continued to discuss the case with appellant and with the district attorney. The district attorney told Christensen that the best offer she would consider for settlement would be for appellant to plead to the complaint and receive the maximum sentence of 21 years. Christensen knew that if a settlement was not reached, the prosecutor planned to pursue a grand jury indictment for multiple counts of attempted premeditated murder, which would expose appellant to multiple life terms if convicted.
Appellant made one appearance without counsel during the transition in representation. At that appearance, the prosecutor told appellant to have his counsel call her as soon as possible.
On November 4, 2003 or, at the latest, November 7, Christensen talked to appellant about the prosecutors position on the case. By then, Christensen had watched the videotape. He reviewed appellants "gait, walkability, [and] his actions." He "wanted to see if there was any evidence that [he] could determine of delusions, of hallucinations, of any manifestations of that sort." He had listened to the audiotapes of the victims statements, and read reports from the police, the defense investigator, and the laboratory. Christensen also discussed the case with Dr. Donk and with a psychiatrist who had previously treated appellant for bipolarism.
Particularly concerned about the premeditation issue, Christensen assessed the evidence this way: "Mark entered that store . . . . And during the conversation with the clerk there was some talk about hiccups. Ultimately the clerk got upset, the clerk found Mark to be a nuisance and told Mark to leave. Mark got angry, started swearing and looked at the clerk and said, Ill kill you, you motherfucker. Thats what Mark said before he left the store. About an hour and 45 minutes later after going and obtaining a gun and driving back to the store, having the wherewithal to do both of those, came back into the store, looked at the clerk and said, are you still mad at me? The clerk said, no. Mark then within a matter of seconds draws down with both hands on the clerk, whos cowering behind the counter, point blank at his forehead and pulls the trigger three times, according to the clerk. Mark then raises back up, walks over a distance for a few seconds, comes back and draws back down point blank within a manner of inches, pulls the trigger once again, and then walks around the counter and draws down on the clerk, according to what the clerk said in the police report, and the clerk then jumps over the counter and runs out of the store. [¶] In the meantime Mark had banged the gun on the counter, according to the clerk, as if the gun was jammed. And not only that, three shells are ejected in the store. Mark did not bring an unloaded gun into that store. He brought a loaded gun into that store and the video captures the two drawdowns point blank."
Christensen discussed with appellant what he saw as mitigating circumstances in the case. Appellant was a 48-year-old software engineer with Hewlett Packard. Appellants only criminal conviction was for driving under the influence in 1994. Appellant suffered from mental illness and was intoxicated at the time of the crime. The safety was on the gun and the gun did not discharge. Christensen met with the prosecutor on November 13 but the offer remained the same. Christensen conveyed this offer to appellant. He also told appellant that he should decide what he wanted to do by the next day because the prosecutor would then set the matter for a change of plea on Monday, November 17, 2003. The grand jury was scheduled to convene on November 18. Christensen explained to appellant that he could choose to accept the offer, which was to plead to the complaint as charged for a 21-year sentence, or to decline the offer, in which case the prosecutor would present the case to the grand jury and seek an indictment for multiple counts of premeditated attempted murder which could lead to multiple life terms. Appellant thought this offer was "very unfair and very unreasonable." Appellant asked Christensen about the defense of diminished capacity and Christensen explained that that was "no longer a viable defense in California." According to appellant, Christensen did not discuss diminished actuality with him.
The next day, Christensen returned to the jail to talk to appellant. Appellant later said that he felt that his decision-making ability was compromised by the combination of the stress of making such an important decision, the process of recovering from his injuries, and his medication. Appellant considered that there was longevity in his family and that, if he accepted the offer, that he could serve the sentence and then "have another 10 or 15 years outside after that." He determined, "Thats an acceptable result. Its certainly a lot better than life in prison." Appellant told Christensen that he would accept the offer.
On November 17, 2003, appellant appeared with Christensen who made his first general appearance and announced that the matter was ready for disposition. Christensen made a long statement to the court about the case. He said that he had "been involved in a very intense way with Mr. Beswethericks case for the last three and a half weeks." He said, "Ive reviewed each and every element with him, all the possible defenses . . . ." The court conducted the plea voir dire, confirming that although appellant had consumed prescription medication neither appellant nor Christensen believed that this altered appellants ability to understand the proceedings. Appellant confirmed that he had had the opportunity to fully discuss the case with Christensen, including possible defenses and the elements of the charges. Appellant pleaded no contest to the charges in the complaint.
The following day, appellant testified before the grand jury which was investigating officer shootings.
According to appellant, "A week [after his plea] when things had had a chance to sink in" he "realized" that this long prison term would be "awful." In January 2004, an attorney who had been contacted by appellants family met with Christensen to discuss "the circumstances of the entry of the plea and the situation." That attorney "concluded there was nothing more that he felt he could do or would do." In February 2004, attorney Robert Lyons contacted Christensen. Appellant retained this new counsel and, on July 21, 2004, Lyons and Cindy Diamond substituted in for Christensen as appellants counsel. On July 30, 2004, Lyons filed a motion to withdraw appellants no contest plea contending that appellants medications "prevented him from being able to knowingly and intelligently make such an important decision in his case" and that appellant was denied due process and effective assistance of counsel because Christensen "could not adequately assess the case and possible defenses in a short period of time, and a threat by a prosecutor of new charges if a plea was not entered swiftly."
The hearing on appellants motion to withdraw his plea took place October 15 and December 3, 2004, and April 15 and May 20, 2005, and the transcript of the hearing is well over 400 pages long. Christensen, appellant, Dr. Donk, Overstreet, and the psychiatrist who had treated appellant before his arrest all testified. Dr. Donk testified that after interviewing appellant for almost 20 hours and reviewing other materials, he concluded that appellant suffered from alcoholism and bipolar disease. A psychiatrist who had reviewed appellants jail medical records testified that he thought that appellant may have been under-medicated for his bipolarism. The tendency to be impulsive is a symptom of an under-medicated bipolar patient.
On August 4, 2005, the trial court issued a four-page ruling and order denying appellants motion to withdraw his plea. The court rejected appellants arguments about the prosecutors conduct and duress observing, "Being a defendant in a criminal matter is a very stressful position." The court rejected appellants argument concerning his physical and mental ability to enter the plea. The court said, "The Court finds that the defendant at the time he entered his plea was in full possession of his mental faculties. The defendant was bright, alert, responsive, and even testified that he considered the offer and knew his plea would avoid the possibility of a life sentence by entering an early plea. . . . The Courts personal observations of the defendant at the plea hearing clearly indicated the defendant was fully aware of the consequences of his plea. Again the defendants own testimony clearly establishes to this Court that his mental and physical state was at the time of his plea did not interfere with his decision to enter a plea. [¶] The Court rejects defendants argument that he was unable to make a waiver of his right to have a trial and enter a plea based on his physical or mental condition." The court rejected appellants argument concerning Christensens competence, saying, "This clearly is the defendants weakest argument." The trial court sentenced appellant to nine years for attempted murder, 10 years for the gun enhancement, and one year each, consecutive, for the remaining charges for a total term of 21 years in prison.
Motion to Withdraw Plea
Penal Code section 1018 allows a trial court to grant a defendants application to withdraw his or her plea of guilty or no contest before judgment. Good cause must be shown for such a withdrawal, based on clear and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562, 566.)
"`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 (2004) 118 Cal.App.4th 131, 146.) In determining facts,"the trial court is not bound by uncontradicted statements of the defendant." (People v. Hunt (1985) 174 Cal.App.3d 95, 103.) The requisite "good cause" must comprise more than post-plea remorse: "To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.] Other factors overcoming defendants free judgment include inadvertence, fraud or duress. [Citations.] However, `[a] plea may not be withdrawn simply because the defendant has changed his mind. [Citation.]" (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) Once the trial court has made a good cause determination on the issue whether to permit withdrawal of a plea, a reviewing court will not disturb the decision unless abuse of discretion is clearly shown. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) Moreover, a reviewing court must defer to the trial courts factual findings if substantial evidence supports them. (Ibid.)
Appellant sweeps past this body of law concerning the withdrawal of pleas, declining even to cite to Penal Code section 1018 or the standard of review on appeal from the denial of a motion brought under it. Appellant contends that he "was not able to make a free and voluntary decision about whether or not to accept the deal, at the time he changed his pleas to nolo contendere; therefore his pleas were not free and voluntary and thus were unconstitutional." The voluntariness of a plea is a question of law reviewed de novo. (Marshall v. Lonberger (1983) 459 U.S. 422, 431 ; People v. Vargas (1993) 13 Cal.App.4th 1653, 1660.)
Appellant argues that at the time he entered his plea he was having a "mild manic episode, which rendered his plea involuntary as a matter of law." The trial court, having observed appellant at both the time of the plea and during the motion to withdraw the plea, found that "[appellants] mental and physical state . . . at the time of his plea did not interfere with his decision to enter a plea." The judges observations of a defendant at the time of the change of plea can be part of the substantial evidence supporting the conclusion that a defendants plea change was voluntary. (People v. Fairbank, supra, 16 Cal.4th at p. 1254.) Christensen, privy to far more extensive discussions of the case and having greater opportunity to evaluate appellants mental state than the trial court did, was likewise certain that appellants decision to plead no contest was free and voluntary. Nothing in the testimony of the doctors at the hearing would indicate that appellants plea was involuntary as a matter of law. Appellant may have been anxious, but that is appropriate for someone deciding to enter a plea to 21 years in prison.
Appellant contends, "Due to counsels inadequate factual and legal research and ineffective representation, appellant was uninformed about the details of his case and his pleas were therefore not knowing and intelligent, and were thus unconstitutional." These bold and unsupportable accusations about the adequacy of trial counsels representation do not persuade us that appellants plea was not knowing and intelligent. Perhaps acknowledging the exceedingly high esteem the trial court obviously held for Christensen, appellant argues, "counsels omissions are still a deprivation of appellants rights when, as is likely here, they were the result of a hard working honest lawyer who was prevented from effectively representing his client through governmental interference."
Appellant focuses on the limited time he had to make a decision to plead to the charges in the complaint or face more serious charges. This is the situation in almost every case in which the prosecutor makes an offer. If anything, appellant had more time to confer with his attorney and more time to consider the offer than is usually the case.
Appellant asserts, "A video tape of the assault on the 7-11 clerk was played in court at appellants bail hearing, when appellant was in court and presumably could see it, but he watched [it] from a wheelchair at a strange angle and did not have an opportunity to review the video in private while discussing it with his first attorney." Appellant complains that counsel "did not know that appellant was holding the gun in his hand which could not fire the gun properly, thus he could not inform appellant there was direct evidentiary support to the argument that appellant did not have an intent to kill." Appellant discussed the video with Christensen and had seen at least some of it. Very often the most favorable offers are made early on in the proceedings, sometimes before there has been time for any defense investigation at all. A criminal defendant does not have to have seen every piece of evidence against him in order to make a voluntary, knowing, and intelligent decision to enter a plea.
Appellant argues that counsel "had not researched the law and had not thus determined that the actual mental state of a mentally ill or intoxicated person could be raised as a defense to a specific intent crime." Appellants testimony concerning his discussions with Christensen of available defenses is, at best, cagey. There is simply no support in the record for the assertion that Christensen was unaware of what mental defenses could be raised when a specific intent crime is charged.
Appellant contends, "The cumulative effect of the time pressure imposed by the district attorney, and appellants under-medicated mental illness, was to compound the constitutional errors affecting the plea proceedings." We find no errors in the plea proceedings to cumulate.
Sentencing
The trial court sentenced appellant to the agreed-upon 21 years. The court imposed on count 1, attempted murder, nine years, the aggravated term, plus 10 years for the firearm enhancement, one year consecutive for count 2, assault with a firearm, and one year consecutive for count 3, exhibiting a weapon at a peace officer. Appellant contends, "The sentence must be reversed because imposition of the aggravated term without a waiver violated appellants Sixth Amendment right to a jury trial and his Fourth Amendment right to due process of law."
Before appellant entered his no contest plea, defense counsel informed the court that he had reviewed all of the evidence and discussed the matter with the prosecutor. He explained that the district attorney had told him that the best offer she would consider for settlement would be for appellant to plead to the complaint and receive the maximum sentence of 21 years. Counsel knew that if a settlement was not reached, the prosecutor planned to pursue a grand jury indictment for multiple counts of attempted premeditated murder, which would expose appellant to multiple life terms if convicted. Counsel told the court that appellant had been told that "he would be subjecting himself to a 21-year term as a result of this disposition, and that the promise that has been made to him is the matter will not be taken to the grand jury, there will not be an amended complaint or information charging the premeditation." In taking appellants plea, the trial court confirmed that appellant understood that he would "be sentenced to 21 years."
When appellant moved to withdraw his plea, one of the grounds asserted was that he "should be permitted to withdraw his pleas of no contest, because he pleaded to the aggravated term for count one and for the gun use enhancement, and he did not waive his jury trial rights on the aggravating factors." Appellant cited Blakely v. Washington (2004) 542 U.S. 296 and Apprendi v. New Jersey (2000) 530 U.S. 466 . Appellant noted that "[t]he progeny and effect in state courts" of Blakely was "still uncertain" but argued that the case required the trial court "either to sentence Mr. Beswetherick to the mid-term only, or permit Mr. Beswetherick to withdraw his pleas of no contest." The trial court said it "f[ou]nd that Blakely didnt apply to the extent that [the court] should grant the defendant the ability to withdraw his plea."
In Apprendi v. New Jersey, supra, 530 U.S. 466, the United States Supreme Court held: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490.) In Blakely, the court held that a criminal defendants Sixth Amendment right to a jury trial was violated in a case in which a Washington State trial court imposed "an `exceptional sentence " beyond the "standard range" under Washingtons sentencing reform act, based upon facts neither proved to a jury beyond a reasonable doubt, nor admitted by the defendant. (Blakely, supra, 542 U.S. at pp. 298, 303-304.) The California Supreme Court subsequently concluded that Blakely did not apply to Californias determinate sentencing law, and that "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law does not implicate a defendants Sixth Amendment right to a jury trial." (People v. Black, supra, 35 Cal.4th at p. 1244 (Black I).) In our previous opinion, bound by Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, we followed Black I. In Cunningham, supra, 549 U.S. 270 the United States Supreme Court disagreed with Black I and held that Californias determinate sentencing law (DSL) and provisions for upper term sentencing, based on aggravating findings made by the trial court and by a preponderance of the evidence, violated the defendants Sixth Amendment right to jury trial as set forth in Blakely.
Appellant contends that the trial court violated Blakely and Apprendi "by imposing an upper term based on the negotiated disposition without a waiver of appellants jury trial right on this issue." However, as appellant acknowledges, "the aggravated term was imposed pursuant to an agreed upon disposition." A defendant who waives his right to a jury trial as a precursor to a no contest plea and in exchange for a specified upper term sentence, waives his right to a jury trial on all issues, including sentencing issues. (People v. Berutko (1969) 71 Cal.2d 84, 94.) In Berutko, the defendant contended that he had not specifically waived his right to a jury trial on a prior conviction during his negotiated plea and admission. Our Supreme Court rejected the contention because it found that by his general waiver of a jury trial during his plea, the defendant was "`deemed to have consented to a trial of all of the issues in the case before the court sitting without a jury. [Citation.]" (Ibid.) Thus, appellants waiver of the right to a jury trial and an agreement to the specified sentence supports the trial courts imposition of the upper term sentence.
French is not to the contrary. There, the defendant agreed that he would receive an aggregate sentence of not more than 18 years in prison for multiple offenses. (French, supra, 43 Cal.4th at p. 42.) In sentencing him to the 18 years, the trial court opted for the upper term on one of the counts, based on its finding of an aggravating factor. (Id. at p. 43.) The French court said, "[W]e hold that defendant, by entering into a plea agreement that included the upper term as the maximum sentence, did not implicitly admit that his conduct could support that term. . . . A defendant who enters into an agreement to plead guilty or no contest, with a sentence to be imposed within a specified maximum, reasonably expects to have the opportunity to litigate any matters related to the trial courts choice of sentence-including the existence of aggravating and mitigating circumstances-at the sentencing hearing." (Id. at pp. 48-49.)
The French court noted that there is a fundamental distinction between a plea agreement in which a defendant stipulates to a maximum term — reserving the right to argue that he should obtain less than the maximum due to the absence of aggravating factors — and an agreement in which a defendant (like appellant here) stipulates specifically to the imposition of the upper term. (French, supra, 43 Cal.4th at p. 49.) The French court recognized People v. Hester (2000) 22 Cal.4th 290. In Hester, in exchange for an agreed term of four years, the defendant pled guilty to five substantive counts, assaults on two victims, and admitted the use of the knife. On appeal, the defendant claimed that the failure to stay the term imposed on the second victim pursuant to Penal Code section 654 produced an unauthorized term. The Supreme Court found that the defendant could not raise such error on appeal. It explained, "The rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below is itself subject to an exception: Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction." (Hester, supra, 22 Cal.4th at p. 295.)
The French court acknowledged that Hester "held that a defendants acceptance of a plea agreement that includes a specified sentence constitutes an implicit waiver of his or her right to contend that the sentence imposed violates section 654. A sentencing agreement pursuant to which the defendant pleads guilty or no contest with the understanding that he or she will receive a sentence within an agreed-upon maximum term, by contrast, `contemplates that the court will choose from among a range of permissible sentences within the maximum . . . . [Citation.] In the present case, defendant did not agree that a specified sentence would be imposed; his plea agreement contemplated that the trial court would have discretion to impose any appropriate sentence up to the maximum of 18 years imprisonment." (French, supra, 43 Cal.4th at p.49.) In contrast, appellant here agreed that a specified sentence would be imposed and the agreement did not contemplate that the trial court would choose from among a range of permissible sentences within the maximum. In light of his waiver of a right to a jury trial and his consent to the precise sentence imposed, the constitutionality of his upper term sentence under Cunningham and Blakely is not an issue in the case.
Disposition
The judgment is affirmed.
WE CONCUR:
RUSHING, P.J.
PREMO, J.