Opinion
A165160
10-05-2023
THE PEOPLE, Plaintiff and Respondent, v. TAUZHANAE NASHA DOWELL, Defendant and Appellant.
NOT TO BE PUBLISHED
(Napa County Super. Ct. No. 19CR003202)
MARKMAN, J. [*]
Prosecutors offered defendant Tauzhanae Dowell a "package-deal" plea bargain with her codefendant, Brandon Barrett. Barrett was also allegedly Dowell's boyfriend and her pimp. The law recognizes a serious risk that package-deal plea bargains can be coercive. (In re Ibarra (1983) 34 Cal.3d 277, 286-287 (Ibarra), disapproved on another ground in People v. Howard (1992) 1 Cal.4th 1132, 1175-1178.) A trial court is supposed to mitigate that potential risk when taking a package-deal plea from a defendant by asking the defendant questions that tend to reveal whether her plea is really voluntary. (Id. at p. 288.) The duty of inquiry established by the California Supreme Court in Ibarra concerning package-deal pleas "is prophylactic in character, and not constitutionally compelled." (Id. at p. 290, fn. 6.)
The trial court failed to conduct the inquiry established by Ibarra. In exchange for a seven-year sentence, Dowell ultimately pleaded no contest to pandering a minor (Pen. Code, § 266i, subd. (b)(1)), false personation (§ 529), and identity theft (§ 530.5, subd. (a)). The court did not ask Dowell any questions concerning the package-deal nature of the plea.
Undesignated statutory references are to the Penal Code.
Dowell asks that we reverse the judgment and remand the case so the trial court can investigate the voluntariness of her plea. Citing section 1016.7, Dowell further argues that the trial court's inquiry was flawed because it did not ask the prosecutor questions to confirm that, during plea negotiations, prosecutors had considered Dowell's youth and the human trafficking she experienced.
Under California law, the trial court should have done more to review Dowell's package-deal plea before accepting it as voluntary. But we cannot reverse the judgment because Dowell does not even suggest she wants to withdraw her plea, let alone present evidence to the trial court that her plea was not voluntary. Dowell also does not identify an error concerning compliance with the newly enacted section 1016.7. We therefore affirm the judgment.
BACKGROUND
Testimony adduced during Dowell's preliminary hearing provides the factual context for this appeal. Dowell had a relationship with Barrett for several years, perhaps since high school. They were in a girlfriend-boyfriend and also a prostitute-pimp relationship. Dowell was the most favored among the prostitutes in a group Barrett pimped who were called "the Bundles."
A. Dowell and Barrett Interact with the Minor Victim
In 2018, Dowell and Barrett used social media to contact a minor from Georgia, who had been working as a prostitute and had a child of her own (the minor). They encouraged the minor to come to California to work with the Bundles, promising to help her reunite with her child and to treat and pay her well. They bought her bus tickets, and Dowell communicated with her about the itinerary.
The minor traveled to Oakland in January 2019. No one was there to meet her. She learned that law enforcement had recently raided a house where the Bundles operated. Police arrested Barrett during this raid. The minor decided to return to Georgia.
Dowell and the minor continued to communicate, and in February or March of 2019, the minor returned to California to work as a prostitute. Dowell picked the minor up in Oakland and took her to a house in Sacramento, where the Bundles were now operating. The minor worked there as a prostitute for "a couple of weeks," giving the money she earned to Dowell. Then, Barrett arrived. The minor described Barrett as angry because Dowell did not give him as much money as he wanted her to make while he was incarcerated. During this period, Barrett hit and choked the minor. Dowell also hit her.
The minor left the house in Sacramento and made her way back to Oakland, where she continued to engage in prostitution on her own. Law enforcement caught the minor in a prostitution sting and placed her in a foster home. She contacted Dowell, who took her away from the home while posing as her sister. The minor then briefly worked for Dowell as a prostitute, with Dowell acting as her pimp.
The minor returned to Georgia. A few months later, she contacted a Napa County detective who was investigating the Bundles trafficking operation to talk about her experience.
B. The Charges and Package-Deal Plea Agreement
Prosecutors charged Dowell and Barrett by consolidated information with numerous felonies and misdemeanors. Dowell was charged with pandering the minor (§ 266i, subd. (b)(1)); human trafficking of the minor, including by force (§ 236.1, subd. (c)(1) &(2)); a second count of human trafficking of the minor (§ 236.1, subd. (c)(1)); giving false information to a police officer (§ 148.9, subd. (a)); driving on a suspended license (Veh. Code, § 14601.1, subd. (a)); false personation (§ 529); and identity theft (§ 530.5, subd. (a)). The first human trafficking count alone carried a maximum sentence of life in prison. Both Dowell and Barrett also faced potential federal prosecution.
Barrett was charged with two counts of pimping (§ 266h, subd. (a)); two counts of pandering (§ 266i, subd. (a)(2)); attempted human trafficking (§§ 664/236.1, subd. (b)), which was enhanced by using a belt as a deadly weapon (§ 12022, subd. (b)(1)); assault with a deadly weapon (§ 245, subd. (a)(1)); pandering the minor (§ 266i, subd. (b)(1)); human trafficking the minor (§ 236.1, subd. (c)(1) & (2)); possession of a firearm by a felon (§ 29800, subd. (a)(1)); possession of ammunition by a felon (§ 30305, subd. (a)); resisting, obstructing, and delaying a peace officer (§ 148, subd. (a)(1)); and destroying evidence (§ 135). The information also alleges that Barrett had a prior strike (§ 667, subd. (b)), which was a prior serious felony (a burglary (§ 459)).
Attorneys separately represented Dowell and Barrett throughout the proceedings. Plea negotiations were underway by mid-2020. Dowell and Barrett both accepted a package-deal plea agreement in early January 2022. Dowell stipulated to the factual basis for her plea, including the aggravating factors, and agreed to a six-year sentence for pandering-the upper term- plus two eight-month terms for false personation and identity theft. She agreed to register as a sex offender under section 290. The court dismissed the remaining counts against her.
The trial court sentenced Dowell in accordance with her plea in March 2022. She later timely filed a notice of appeal and requested a certificate of probable cause to appeal, which the trial court granted.
DISCUSSION
I. Dowell's Plea
Dowell argues the trial court failed to inquire whether her packagedeal plea, with her alleged boyfriend and pimp, was voluntary, as required by Ibarra. She asks us to remand the matter to the trial court "to hold a hearing to investigate" this issue.
A. Package-Deal Pleas and the Ibarra Inquiry
Due process demands that a defendant must knowingly and voluntarily waive her constitutional rights before entering a guilty plea. (Boykin v. Alabama (1969) 395 U.S. 238, 243-244 &fn. 5.) The trial court must make a record confirming that the waiver of rights was knowing and voluntary to enter a plea of guilty or no contest. (Ibid.) Under many circumstances, a defendant will initial and sign a waiver form and the trial court may simply confirm on the record that the defendant read and understood the contents of the form and wishes to enter the guilty plea. (Ibarra, supra, 34 Cal.3d at pp. 285-286.)
Package-deal pleas are "not intrinsically coercive," but they raise concerns regarding the possibility of coercion beyond those present in a typical plea negotiation. (Ibarra, supra, 34 Cal.3d at pp. 283-284.) The Supreme Court explained the dilemma in Ibarra: "In the normal bargain, a defendant must choose between pleading guilty and receiving a lesser sentence, or taking his chances at a trial (in which he may be convicted and receive a greater sentence). The prosecutor seeks to avoid the time and expense of trial. These are proper considerations by both parties that do not amount to such coercion as to unduly force a defendant to plead guilty. [Citations.] [¶] 'Package-deal' plea bargains, however, may approach the line of unreasonableness. Extraneous factors not related to the case or the prosecutor's business may be brought into play. For example, a defendant may fear that his wife will be prosecuted and convicted if he does not plead guilty; or, a defendant may fear . . . that his codefendant will attack him if he does not plead guilty. Because such considerations do not bear any direct relation to whether the defendant himself is guilty, special scrutiny must be employed to ensure a voluntary plea. '[P]lea bargaining of adverse or lenient treatment for some person other than the accused . . . might pose a greater danger of inducing a false guilty plea . . . .'" (Ibarra, at p. 287, quoting Bordenkircher v. Hayes (1978) 434 U.S. 357, 364, fn. 8.)
Given such imperatives, when accepting a plea, the trial court must determine whether it was offered in a package-deal requiring pleas by all codefendants and, if so, inquire into possible coercion before accepting it. (Ibarra, supra, 34 Cal.3d at pp. 286-287.) The court must consider the totality of the circumstances to determine whether, in fact, a plea has been unduly coerced or is instead freely and voluntarily given. (Id. at p. 288.)
The Ibarra court identifies four sets of factors that form the basis for the trial court's inquiry. "First, the court must determine whether the inducement for the plea is proper. The court should be satisfied that the prosecution has not misrepresented facts to the defendant, and that the substance of the inducement is within the proper scope of the prosecutor's business. [Citation.] The prosecutor must also have a reasonable and good faith case against the third parties to whom leniency is promised." (Id. at pp. 288-289, fn. omitted.)
"Second, the factual basis for the guilty plea must be considered." (Ibarra, supra, 34 Cal.3d at p. 289.) A plea that is "not supported by the evidence" or that is "disproportionate to the accused's culpability" would tend to indicate that a plea is not voluntary. (Ibid.)
"Third, the nature and degree of coerciveness should be carefully examined. Psychological pressures sufficient to indicate an involuntary plea might be present if the third party promised leniency is a close friend or family member whom the defendant feels compelled to help." (Ibarra, supra, 34 Cal.3d at p. 289.) The court "should carefully scrutinize pleas in which the defendant shares a special relationship with a person who has been promised a benefit contingent on" the defendant's plea and "those cases in which a third party has threatened the defendant." (People v. Sandoval (2006) 140 Cal.App.4th 111, 125 (Sandoval).)
"Fourth, a plea is not coerced if the promise of leniency to a third party was an insignificant consideration by a defendant in his choice to plead guilty. For example, if the motivating factor to plead guilty was the realization of the likelihood of conviction at trial, the defendant cannot be said to have been 'forced' into pleading guilty, unless the coercive factors present had nevertheless remained a substantial factor in his decision." (Ibarra, supra, 34 Cal.3d at p. 290.)
B. Failure to Comply with Ibarra
The trial court plainly failed to conduct any Ibarra inquiry at all, as the Attorney General concedes. Dowell initialed the boxes on the Napa County Superior Court written change of plea form, which acknowledged and then waived her right to a trial, to confront and cross-examine witnesses, to produce evidence, and to remain silent. The form Dowell initialed included an acknowledgement that she understood the possible consequences of her plea, including the accompanying sentence and fines and mandatory registration as a sex offender. Her initials appear next to language acknowledging potential immigration consequences, and the possibility of future mandatory supervision, restitution, and fines. The court asked Dowell to confirm that she had read her three-page plea form and that she had signed it. The court confirmed Dowell had spoken to her attorney about the matter and that she had no questions for the court. It then took Dowell's no contest pleas. The court confirmed that Dowell's counsel stipulated to the factual basis for the plea. The court re-confirmed Dowell had no questions, noted the duration of the sentence (seven years four months) and the requirement for registration under section 290, and confirmed the sentence did not include strike offenses. The trial court then said, "I'll find that Ms. Dowell has made a knowing, intelligent, voluntary waiver of her rights. I'll adopt the findings on page three of the plea form, making it an order [of] this court." It then took Dowell's stipulation to aggravating factors based on evidence taken at the preliminary hearing.
C. Standard of Review
Dowell advances an incomplete theory concerning how we review and remedy the lack of an Ibarra inquiry. Dowell argues that to trigger a reversal she need only "undermine confidence" in whether her plea was voluntary. Her argument relies on a parenthetical summary of the legal rule in People v. Watson (1956) 46 Cal.2d 818, 837, found in College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715. The parenthetical simply observed that, for purposes of establishing whether a trial error was harmless, the term" 'reasonable probability' does not mean 'more likely than not,' but merely 'probability sufficient to undermine confidence in the outcome.'" (College Hospital Inc., at p. 714.)
This appeal, however, does not involve an error during trial but rather the failure to make the prophylactic Ibarra inquiry in a case involving a package-deal plea. California law does not encourage, let alone require, the court to vacate a plea "merely because of the lack of inquiry." (Ibarra, supra, 34 Cal.3d at p. 290, fn. 6; see also Sandoval, supra, 140 Cal.App.4th at p. 123 [bargained pleas should not be set aside lightly and finality of proceedings should be encouraged].) The Ibarra decision itself explains that, whether on appeal or in the context of a habeas corpus petition asking to set aside a plea, the defendant "must point to facts to show not only the lack of an inquiry but also the involuntary character of [her] plea." (Ibarra, at p. 290, fn. 6.) In Ibarra, the defendant did not "advance such allegations," and so the Supreme Court denied the petition. (Id. at p. 290.) Dowell's appeal is similarly deficient, as explained below.
D. Lack of Evidence Dowell's Plea Was Involuntary
1. Forfeiture
Dowell did not attempt to move to withdraw her plea. She also did not attempt to submit any evidence that her plea was not voluntary. The Attorney General contends that Dowell forfeited her Ibarra challenge by failing to raise the issue below.
Generally, a defendant forfeits an argument that her plea "was not knowingly and intelligently made (and was therefore involuntary)" if the defendant "never made a motion to withdraw [her] plea in the trial court." (People v. Turner (2002) 96 Cal.App.4th 1409, 1412-1413.) A similar rule applies when a defendant waives trial and admits to prior convictions but later wishes to argue that he was not "advise[d] of the penal consequences"- the argument is forfeited if it was "not raised at or before sentencing." (People v. Wrice (1995) 38 Cal.App.4th 767, 770-771.) Dowell responds that forfeiture would not be appropriate here. She argues she "could not have raised her claim in the trial court," because she "may have entered the plea under compulsion" and "that same compulsion would have prevented her from objecting in the trial court."
Dowell has not satisfied the requirements for remand imposed by the Ibarra decision itself. Again, Dowell does not suggest she wants to withdraw her plea. She has not attempted to adduce any evidence that would tend to show the "involuntary character of [her] plea." (Ibarra, supra, 34 Cal.3d at p. 290, fn. 6.) We lack precedent that would empower us to reverse and remand the case under these circumstances. "[G]iven the prophylactic purpose" behind the Ibarra inquiry, however, we will not stop our analysis by finding that a motion to withdraw a plea is an absolute prerequisite to enforcing Ibarra on appeal. (See People v. Palmer (2013) 58 Cal.4th 110, 116 [reviewing on appeal trial court's compliance with factual basis requirement given its prophylactic purpose, "which 'helps ensure that the "constitutional standards of voluntariness and intelligence are met," '" quoting People v. Holmes (2004) 32 Cal.4th 432, 438, quoting People v. Hoffard (1995) 10 Cal.4th 1170, 1182, fn. 11].)
2. Analysis Using Ibarra Factors
We further analyze Dowell's package-deal plea by confirming Dowell has not shown "the inducement for the plea" was improper. (Ibarra, supra, 32 Cal.3d at pp. 288-289.) The promises made by prosecutors to Dowell concerning the length of her sentence, and Barrett's sentence, were within their power to make. Dowell would serve a sentence of seven years four months rather than face trial, where Dowell had faced life in prison. (§ 236.1, subd. (c)(1) &(2).) Prosecutors also confirmed that Dowell would no longer face federal prosecution. Dowell's counsel explained to the court that the agreement was in the interest of justice where "Dowell was offered a midterm on a separate count but [that offer] would have given her more time." Dowell does not suggest that prosecutors misrepresented facts to her or contest that "the substance of the inducement" was "within the proper scope of the prosecutor's business." (Ibarra, at pp. 288-289.)
Second, Dowell makes no effort to attack the factual basis for Dowell's pleas of no contest. (Ibarra, supra, 34 Cal.3d at p. 289.) Dowell's counsel stipulated to the factual basis for her plea, including factors in aggravation. On appeal, however, Dowell also has the record of the two-day preliminary hearing with live testimony from multiple witnesses. At the conclusion of the preliminary hearing, the trial court held Dowell to answer the charges against her at trial. Dowell's bargained-for sentence does not appear disproportionate to her culpability. Again, Dowell faced a potential sentence of 15 years to life for human trafficking. The minor accused Dowell of using violence against her and claimed to have worked for Dowell as a prostitute not only as part of an arrangement with Barrett, but directly, with Dowell acting as her pimp.
Dowell claims she could have secured relief under section 236.14, which allows a trafficking victim to petition to vacate arrests and convictions for nonviolent offenses. But Dowell was charged with a violent felony, and it is not clear she could have made the required showing, through clear and convincing evidence, that her "arrest or conviction was the direct result of being a victim of human trafficking." (§ 236.14, subd. (a).)
Third, Dowell points to no evidence of undue coercion in connection with the package-deal plea. Dowell notes the potential for Barrett to coerce her to enter a plea deal to make his eventual sentence more lenient. We share that concern and agree with Dowell that the nature of their relationship should have prompted the trial court to more "carefully scrutinize" her plea. (Sandoval, supra, 140 Cal.App.4th at p. 125.) But on appeal, the lack of evidence that Dowell's waiver of rights was involuntary is dispositive. Dowell does not claim Barrett threatened her concerning her plea and concedes there is no evidence of such a threat in the record. Dowell told a probation officer she accepted the agreement because a jury trial would be too risky and she did not want to serve a longer sentence, making no mention of Barrett. (See Ibarra, supra, 34 Cal.3d at p. 290 [if the motivating factor to plead was "the likelihood of conviction at trial, the defendant cannot be said to have been 'forced' into pleading guilty" unless coercive forces remained a substantial factor in his decision].) Dowell's counsel also did not suggest coercion was an issue.
Fourth, the Ibarra decision counsels that "a plea is not coerced if the promise of leniency" to Barrett "was an insignificant consideration" by Dowell in her "choice to plead" no contest. (Ibarra, supra, 34 Cal.3d at pp. 289-290.) Due to the lack of an Ibarra inquiry by the trial court, we lack insight concerning the relative importance of the leniency given to Barrett in the plea agreement. The record does reflect, however, that Dowell's counsel repeatedly advocated that the case "should resolve" without trial-even as Barrett's counsel, at first, indicated the parties were "headed to trial." (See id. at p. 290 [court should consider which party initiated plea negotiations].)
Dowell characterizes Barrett's plea bargain as lenient as compared to her sentence. Dowell does not, however, detail Barrett's sentence or otherwise present evidence that Barrett's deal was so favorable relative to Dowell's that we can infer Dowell's part of the package-deal agreement was coerced.
Finally, Dowell asserts that the trial court expressed prejudice against her during her preliminary hearing, which calls the voluntariness of the package-deal plea into question. Specifically, Dowell argues that the court stated she was "guilty" at the conclusion of her preliminary hearing.
The record does not reflect interference by the trial court to coerce Dowell into entering her plea agreement. When the court said, "I do believe that Ms. Dowell is guilty for purposes of preliminary hearing," the court was simply deciding whether the prosecution had sufficient evidence to hold a defendant for trial. (See § 872, subd. (a).) There is no indication that the court was biased nor that Dowell believed that the trial court had just convicted her of pandering without a jury trial or had prejudged the case against her. The trial court did not say or do anything that "increase[d] the psychological pressure" on Dowell to accept a plea. (Sandoval, supra, 140 Cal.App.4th at pp. 126-127.)
In sum, the trial court failed to conduct the inquiry established by Ibarra, but Dowell has not pointed to facts to show "the involuntary character of [her] plea." (Ibarra, supra, 34 Cal.3d at p. 290, fn. 6.)
II. Section 1016.7
Section 1016.7 became effective on January 1, 2022 (Stats. 2021, ch. 695, § 4), days before Dowell entered her plea. The statute provides that "the prosecutor shall consider during plea negotiations, among other factors," specified mitigating circumstances if they "were a contributing factor in the commission of the alleged offense." (§ 1016.7, subd. (a).) These circumstances include whether the defendant was a youth (under 26) when the offense was committed and whether the defendant was a victim of human trafficking before or during the offense. (Id., subds. (a)(2), (3) &(b).)
Dowell faults the trial court for failing to "make a record and ensure that the prosecutor had complied with this new law." But she cites no authority requiring such findings, and we are aware of none. Dowell appears to concede the statute contains no explicit mechanism to enforce its requirements.
Dowell attempts to rely on People v. Flores (2022) 73 Cal.App.5th 1032, which remanded a matter for consideration of new sentencing requirements under section 1170, subdivision (b), which was enacted at the same time as section 1016.7. (Flores, at pp. 1038-1040.) The Flores decision, however, is not helpful here. Section 1170, subdivision (b) makes "the middle term the presumptive sentence for a term of imprisonment unless certain circumstances exist." (Flores, at p. 1038.) It is an ameliorative statute and applies retroactively. (Id. at p. 1039.) But Dowell does not seek resentencing here. Dowell also does not appear to argue that section 1016.7 is ameliorative.
The record indicates the prosecutor and the court were aware of Dowell's age and potential victimization. (See Evid. Code, § 664 ["It is presumed that official duty has been regularly performed"].) The question of whether Dowell had "crossed the line from being a victim to a co-conspirator" was explored at the preliminary hearing. We infer the prosecutor considered the relevant factors, either because she knew section 1016.7 would imminently require it or pursuant to her "broad latitude in taking into account whatever mitigating factors the defense might wish to advocate in plea bargain negotiations." (People v. Brooks (2020) 58 Cal.App.5th 1099, 1108, superseded by statute on another ground as stated in People v. Harrell (Sept. 1, 2023, E080838)__Cal.Rptr.3d__[pp. 7-10].)
DISPOSITION
The judgment is affirmed.
We concur: Richman, Acting P.J., Miller, J.
[*]Judge of the Alameda Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.