Opinion
A129912
08-18-2011
THE PEOPLE, Plaintiff and Respondent, v. AUSTIN DUNCAN Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Lake County Super. Ct. No. CR917727)
Pursuant to a plea agreement, appellant Austin Duncan pled no contest to one count of committing lewd and lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (a)). As part of the negotiated disposition, the remaining charges, including two counts of forcible rape (§ 261, subd. (a)(2)), one count of forcible sexual penetration (§ 289, subd. (a)(1), and an additional charge under section 288, subdivision (a) were dismissed, with a Harvey waiver, specifically allowing the court to consider the dismissed offenses for purposes of sentencing. After denying Duncan's subsequent motion to withdraw his plea, he was sentenced to a prison term of six years.
All further statutory references are to the Penal Code unless otherwise indicated.
People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
Duncan contends that the trial court erred in refusing to allow him to withdraw his plea, and that the court improperly considered uncharged criminal conduct in sentencing. We find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 1, 2009, Duncan provided alcohol to his 13-year-old cousin, and twice forced sexual intercourse over her objections and resistance. In a recorded police interview, Duncan admitted sexual contact with the victim but claimed it was consensual. On April 2, 2009, Duncan was charged by information with two counts of rape (§ 261, subd. (a)(2)), one count of forcible sexual penetration (§ 289, subd. (a)(1), and two counts of lewd and lascivious acts on a child under the age of 14 (§ 288, subd. (a)).
The facts are taken from the probation report.
On September 9, 2009, Duncan entered a plea of no contest to one count under section 288, subdivision (a). Duncan confirmed that he had adequate time to discuss his plea with his counsel, was advised that he faced a maximum sentence of eight years in state prison, and agreed that the plea was with a Harvey waiver. When asked by the court if he understood the significance of a Harvey waiver, his counsel replied "It's explained on the form and I told him also, Judge." The court then asked Duncan, "Any questions about that?" Duncan replied "No." The plea form signed and initialed by Duncan recites "I understand and agree that the sentencing judge may consider facts underlying the dismissed counts to determine restitution and to sentence me on the counts to which I am entering a plea." The court found a knowing, voluntary and intelligent waiver of rights and accepted the plea.
Duncan was further advised that he was entering a plea to a serious felony, subjecting him to sentencing enhancements for any subsequent offenses, and that he would be subject to registration as a sex offender.
On October 16, 2009, after receipt of a September 27, 2009 probation report, the court referred Duncan to the Department of Corrections and Rehabilitation for a diagnostic evaluation pursuant to section 1203.03. The diagnostic report included discussion of other "Sex-Related Offenses" mentioned in the probation report, including "a pending case for PC261.5 (a)" and "a pending case in Lake County for PC288 (a)(2)." The recommendation was for imposition of a prison term. The court also appointed psychiatrist Dr. Douglas Rosoff to evaluate Duncan under section 288.1. Dr. Rosoff also reviewed the probation report and noted that Duncan "denied the allegations of the two pending sexual assault cases." He found that Duncan remained "a potential risk for danger to others and a potential risk for lewd acts with children and is not suitable for probation pursuant to [section] 288.1."
The matters identified by the probation department in the September 27, 2010 report as "pending" were an allegation of consensual sex with a 15-year-old acquaintance on October 21, 2008, and a report by a 16-year-old girl that Duncan had forced her to
"Any person convicted of committing any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or member thereof, of a child under the age of 14 years shall not have his or her sentence suspended until the court obtains a report from a reputable psychiatrist, from a reputable psychologist who meets the standards set forth in Section 1027, as to the mental condition of that person." (§ 288.1.)
Duncan's Motion to Withdraw His Plea
Before sentencing Duncan retained new counsel and sought to withdraw his previously entered plea. Duncan contended that there was good cause to permit him to withdraw his plea because: 1) both the section 1203.03 and section 288.1 reports contained prejudicial references to uncharged sexual misconduct with other victims; 2) he was not advised that he was potentially subject to post-sentence commitment as a sexually violent predator under Welfare and Institutions Code section 6600 et. seq; 3) that his plea was involuntary due to age, education and educational impairments, and due to threats of violence against himself and his family; and 4) his counsel was ineffective.
Duncan's motion was heard on September 7 and September 13, 2010. Duncan submitted a declaration, and his mother and original defense attorney both testified. Duncan averred that he had been diagnosed with ADHD and "[a]t the time I entered my guilty plea, I did not comprehend the significance of my actions nor did I understand the possible consequences of my plea." Duncan's mother, Heleena Duncan, confirmed that Duncan had been diagnosed with ADHD, and said that it affected his "maturity." She orally copulate him on February 26, 2009. It appears that no charges were ever filed in either case. At sentencing the district attorney observed that the unlawful sexual intercourse allegation was a misdemeanor matter which he would not have filed in his exercise of discretion, and that the alleged victim in the second matter was uncooperative. criticized the investigation done by Duncan's former counsel, and said that the attorney had told Duncan that he would be evaluated locally in Lake County, and that he would likely receive probation and "no time." Duncan's counsel at the time of his plea, Douglas Rhoades, was called as a prosecution rebuttal witness. He testified that he discussed the nature of the charges and the consequences of a plea with Duncan, advised him that he would be subject to up to 16 years in prison on the original charges, and that he would face up to eight years in prison on the offense to which he entered a plea. Rhoades told Duncan that he would still be probation eligible "with an appropriate 288.1 and a 1203.03 evaluation," but did not tell him that he would get probation. He discussed the 288.1 and the 1203.03 evaluation processes with Duncan. Rhoades said that he was aware at the time of the plea that "another case . . . had surfaced, and it was unclear as to whether or not that case would be filed" and he believed that he had discussed that with Duncan. He felt that there was at least a "tacit agreement" with the district attorney that nothing else would be filed.
The trial judge noted that the court had been specific in advising Duncan that he faced a potential prison sentence of eight years, and that he could not tell Duncan what his sentence would be until he received the probation reports and the diagnostic reports. The court denied the motion, finding that "there doesn't appear to be any question that the defendant knew what he was doing" and noting "I think what happened here this is one of those situations that didn't work out the way the defendant hoped it would and now he wants to withdraw his plea. That is not a good reason for withdrawal of plea."
Sentencing
The court obtained a supplemental probation report (which recommended imprisonment) and held a sentencing hearing on September 27, 2010. The court found Duncan unsuitable for probation "and that's including the striking out all these other allegations about another person and so forth with the same kind of conduct" and sentenced him to a midterm prison sentence of six years. A timely appeal was filed.
II. DISCUSSION
Section 1018 provides 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. . . . This section shall be liberally construed . . . to promote justice." Duncan contends he established good cause to withdraw his plea and that the trial court erred in denying his motion.
A defendant seeking to withdraw his guilty plea under section 1018 bears the burden of establishing good cause. (People v. Shaw (1998) 64 Cal.App.4th 492, 496 (Shaw).) "Good cause" must constitute more than postplea 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 defendant's free judgment include inadvertence, fraud or duress. [Citations.] However, '[a] plea may not be withdrawn simply because the defendant has changed his mind.' [Citations.]" (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) Good cause must be demonstrated by clear and convincing evidence. (Shaw, at. p. 496.)
If the defendant was represented by counsel when a guilty plea was entered, the ruling on an application to withdraw that plea is " 'purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.]' " (People v. Weaver (2004) 118 Cal.App.4th 131, 146 (Weaver))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.) We defer to the trial court's factual findings if substantial evidence supports them. (Ibid.)" 'Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.' [Citation.]" (Weaver, at p. 146.)
In this appeal, the sole basis on which Duncan contends that his plea was defective is his claim that it was "premised on misadvice concerning the effect of his Harvey waiver." He also argues that he was denied due process and that his sentencing was fundamentally unfair due to consideration by the court of uncharged criminal conduct alleged against him. A. The Harvey Waiver and the Diagnostic Evaluations
In Harvey our Supreme Court held that a court may not consider the facts underlying charges dismissed as part of a plea bargain to aggravate or enhance the defendant's sentence. (Harvey, supra, 25 Cal.3d at p. 758.) The agreement to allow the court to consider the factual basis of uncharged or dismissed counts is termed a "Harvey waiver." (People v. Beck (1993) 17 Cal.App.4th 209, 215.)
"The Harvey rule is based on the reasonable expectations of the parties to the bargain. 'Implicit in such a plea bargain, we think, is the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count.' ([Harvey, supra, 25 Cal.3d at p. 758].) [That rule] is inapplicable to defendants who plead guilty to violating section 288 because they can have no reasonable expectation regarding dismissed charges in light of section 288.1's requirement of a report on their current mental condition as it relates to suitability for probation. [Citations.] [¶] . . . [¶] 'Thus, in denying or granting probation in a section 288 case, one of the primary concerns is the defendant's mental condition. To limit the expert preparing the psychiatric report to the specific facts of the particular offense(s) would hamper both the expert and the sentencing court. In making an accurate and comprehensive evaluation of a defendant's mental condition, it is self-evident that neither the psychiatrist nor the court should be limited to facts surrounding the admitted offense but must consider the totality of a defendant's behavior and course of conduct of which the particular offense(s) logically is a part.' [Citation.]" (People v. Lamb (1999) 76 Cal.App.4th 664, 672-673 (Lamb).)
In Lamb, the appellant pled guilty to multiple charges of violating section 288, subdivision (a), with several other counts dismissed as part of the bargain. (Lamb, supra, 76 Cal.App.4th at pp. 668-669.) Lamb contended that the plea bargain had been violated by the prosecution and the court in reliance at sentencing on all dismissed counts instead of only two dismissed counts as to which there had been an express Harvey waiver. (Id. at p. 672.) The plea bargain was set aside on appeal not because of a Harvey violation, since Harvey has no application in the context of section 288 cases, but because the appellant had been misled by the court about the extent to which his dismissed charges could be considered in sentencing. (Id. at p. 674.)
Since it appears that the dismissed counts in Duncan's case were transactionally related, involving the same victim on the same date, a Harvey waiver was unnecessary. Offenses that are transactionally related to the admitted offense may be considered by the sentencing court. (Harvey, supra, 25 Cal.3d at p. 758; Lamb, supra, 76 Cal.App.4th at p. 672.)
Duncan's reliance on Lamb is therefore misplaced. There was no misrepresentation here. The uncharged cases were apparently discussed between the court and counsel in chambers, but no one considered them significant enough to include in the formal plea agreement—beyond a "tacit understanding" that nothing would be filed on those matters. At the time of the plea, the court explained to Duncan that the probation officer would "do a study of your life" and that it would be considering evaluations to be performed by the Department of Corrections and Rehabilitation and by a "psychologist" in determining his sentence. Duncan indicated that he understood. At sentencing the district attorney did not urge the court to consider any uncharged offenses. He candidly conceded the weakness of those cases, and said ""[i]t appears to me that the Court certainly has the capacity to look at [the diagnostic reports], look at the references of those cases and consider if these cases weren't here, would this be any different[.]" Further, the court expressly indicated at time of sentence that it was "striking out" the allegations of any uncharged misconduct. The court made clear that its decision was based on the circumstances of the offense of which Duncan was convicted, which the court found to be "outrageously bad," and his failure to take responsibility for his actions. Finally, Duncan could have had no reasonable expectation that the court would not consider " 'the totality of [his] behavior and course of conduct of which the particular offense(s) logically is a part. . . ." (Lamb, supra, 76 Cal.App.4th at p. 673.) There was no abuse of discretion in denial of Duncan's motion to withdraw his plea. B. Sentencing Error
For the same reasons, Duncan's argument that the court improperly considered uncharged misconduct in his sentence fails. We begin with the presumption that the court acted properly to achieve the legitimate objectives of the sentencing law. (See People v. Superior Court (Alvarez)(1997) 14 Cal.4th 968, 977-978.) The court could properly consider the diagnostic reports, and the bases for those reports, in any event in assessing Duncan's suitability for probation. The record is clear that the court did not consider the two uncharged matters substantively at all. It is equally clear that the court's decision to deny probation, and its mid-term sentencing choice, would have been no different in the absence of any reference to the uncharged cases. Any Harvey violation is subject to the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Avalos (1984) 37 Cal.3d 216, 233.) It was not reasonably probable that the court would have reached a decision more favorable to Duncan had no mention been made at all of the uncharged matters.
III. DISPOSITION
The judgment is affirmed.
Bruiniers, J. We concur: Simons, Acting P. J. Needham, J.