Opinion
F074578
09-28-2017
THE PEOPLE, Plaintiff and Respondent, v. HARVINDER SINGH GILL, Defendant and Appellant.
Mugridge Law Firm, David R. Mugridge, and Amanda K. Moran for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F13908474)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Alvin M. Harrell III, Judge. Mugridge Law Firm, David R. Mugridge, and Amanda K. Moran for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Franson, J.
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INTRODUCTION
This is appellant Harvinder Singh Gill's second appeal from the judgment. Appellant pleaded nolo contendere to sexual battery (Pen. Code, § 243.4, subd. (a)). At sentencing, the trial court treated appellant's objections to the requirement that he register as a sex offender (§ 290) as an oral motion to withdraw his plea. After reviewing the plea colloquy with appellant, the court concluded appellant had voluntarily, knowingly, and intelligently entered into his plea and denied the motion. The court then sentenced appellant according to the plea bargain and appellant received a suspended sentence with 180 days of custody split between county jail and a work program.
Further statutory references are to the Penal Code unless otherwise specified.
In appellant's first appeal (People v. Gill (July 29, 2016, F070950) [nonpub. opn.]), this court vacated the judgment and the trial court's denial of appellant's motion to withdraw his plea, but not the plea itself, and "remanded for further proceedings consistent with this opinion." Following remand, appellant filed a second motion to withdraw his nolo contendere plea. After hearing and denying appellant's motion to withdraw his plea, the court reinstated the judgment.
On the court's own motion, we take judicial notice of the appellate record in the first appeal.
In his second appeal, appellant raises a number of claims challenging both the trial court's denial of his motion to withdraw the plea and its handling of the proceedings on remand. Finding no merit in these claims, we affirm the judgment.
DISCUSSION
The facts of this case were detailed in the previous opinion and, therefore, are not repeated here.
I. The Trial Court Properly Followed Our Directions on Remand
" 'Where a reviewing court reverses a judgment with directions ... the trial court is bound by the directions given and has no authority to retry any other issue or to make any other findings. Its authority is limited wholly and solely to following the directions of the reviewing court.' " (People v. Dutra (2006) 145 Cal.App.4th 1359, 1367.) "When an appellate court's reversal is accompanied by directions requiring specific proceedings on remand, those directions are binding on the trial court and must be followed. Any material variance from the directions is unauthorized and void." (Butler v. Superior Court (2002) 104 Cal.App.4th 979, 982.)
In our prior opinion, we stated, in relevant part:
"In this case, there is no serious dispute that a Bunnell error occurred. [(Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605 (Bunnell).)] The People admit that appellant's conviction under ... section 243.4, subdivision (a), triggers a mandatory reporting requirement under ... section 290. Yet both the plea agreement and the court's plea colloquy informed appellant only that registration was a possibility. The plea agreement contained a handwritten note stating 'registration per PC290' on the lines set forth for 'Other possible consequences of this plea.' And the court, when reviewing the plea, stated: 'on the possible consequences, it is indeed listed registration pursuant to ... Section 290,' with no followup on whether that possible outcome was mandatory. As explained in McClellan, the court was obligated to inform appellant he 'must register as a sex offender.' (McClellan, supra, 6 Cal.4th at p.376.) Informing appellant of the mere possibility was not enough ....
"Recognizing this error in appellant's plea proceedings, the question thus becomes, was it an abuse of discretion for the trial court to deny appellant's motion to withdraw his plea in light of the legal error that existed? Under the specific facts as they reach us, we conclude it was. [¶] ... [¶]
"At no point in [reviewing with appellant statements he made when he entered his nolo contendere plea] did the court recognize appellant's procedural rights had been violated under Bunnell. Rather, its ruling assumed the original plea colloquy and change of plea form had adequately detailed the direct consequences of appellant's plea because appellant was aware of the possible consequences of his plea and had no further questions. Had appellant's plea colloquy satisfied the Bunnell requirements, we would have no issue with the trial court's ruling. However, because there is an unrecognized error in the original colloquy, the trial court's implicit factual finding that appellant had been properly advised of the registration requirement is not supported by substantial evidence. Accordingly, the court's conclusion under the facts as it considered them, that the legal requirements for withdrawing a plea were not met, was arbitrary and capricious in light of its failure to consider the analysis required when Bunnell error exists.
"The People argue any error is harmless in this instance because the record is devoid of evidence showing appellant would have chosen not to enter into the plea if he had been advised of the mandatory nature of the registration requirement, thus precluding the showing of prejudice required to withdraw a plea when Bunnell error exists. We agree that such a showing is required to ultimately set aside the plea. (McClellan, supra, 6 Cal.4th at p. 378.) But the People's argument is premature.
"The record is devoid of such evidence due to the trial court's abuse of discretion, resulting from its failure to recognize the Bunnell error. ... In light of the trial court's error, there was no opportunity to introduce further evidence of prejudice.
"Ultimately, this case reaches us with an undeveloped factual record. As such, appellant's request that we vacate his nolo contendere plea is premature as well. The appropriate resolution is to vacate the judgment and the trial court's denial of appellant's motion to withdraw his plea and remand this case for further proceedings consistent with our opinion. (See In re Moser (1993) 6 Cal.4th 342, 352-353 [(Moser)].) Given the remand to further develop the factual record, we need not reach appellant's argument that the trial court improperly denied his request for a continuance before ruling on the withdrawal motion. Appellant will presumably have counsel of his choosing—or appointed counsel if appropriate—upon remand." (People v. Gill (July 29, 2016, F070950) [nonpub. opn.], pp. 7-10, fns. omitted.)
We explained: "Bunnell error exists 'where the trial court fails to advise a defendant that, as a consequence of his or her plea of guilty to any one of the offenses enumerated in section 290, the defendant must register as a sex offender.' (People v. McClellan (1993) 6 Cal.4th 367, 376 (McClellan).) However, demonstrating Bunnell error alone is not enough to show good cause. A defendant must also demonstrate the error was prejudicial, meaning the defendant would not have entered the plea had a proper advisement been made. (McClellan, supra, at p. 378[.])" (People v. Gill (July 29, 2016, F070950) [nonpub. opn.], p. 6.) --------
Upon remand, appellant filed a written motion to withdraw his nolo contendere plea and the People filed written opposition. Both sides submitted supporting evidence in the form of declarations. Appellant claimed in his declaration that his former attorney, Martin Taleisnik, who represented him at the time he entered the plea, never told him that accepting the plea agreement would require him to register as a sex offender for life. In relevant part, appellant stated:
"... On June 20, 2014, I appeared in open court and entered a plea of nolo contendere ....
"... On August 4, 2014, I was scheduled to be sentenced, but my attorney requested a continuance because the probation report wasn't given to us before that morning.
"... When the probation report was given to my attorney, it indicated that I would have to register as a sex offender. [¶] ... [¶]
"... [Before entering the plea,] [m]y attorney told me that I should accept the plea agreement because if I didn't I would face up to 18 years in prison.
"... My attorney informed me that he thought we had about a 90% chance of losing at trial and that he didn't want to take the case to trial so I should accept the plea.
"... My attorney told me that the plea was a good deal because I wouldn't have to spend 18 years in jail, but he did not tell me that I had to register on the sex offender list for the rest of my life.
"... I felt pressured into taking the deal, and did not have enough time to really think about what the best option was.
"... As soon as I learned that the plea deal required me to register as a sex offender I told my attorney that I did not want that deal because I didn't know that was something I had to do. [¶] ... [¶]
"... I understand that accepting a plea agreement has consequences, and I was willing to accept the jail time and the probation that I agreed to, but I never agreed to sex offender registration.
"... Neither the judge nor my attorney told me that [I] would have to register as a sex offender for the rest of my life.
"... If I had known that accepting the plea agreement would force me to register as a sex offender for the rest of my life, I would not have accepted the plea agreement. I would have gone to trial.
"... I relied upon the advice of my attorney and believed him when he told me this was a good deal, but he never told me that the deal included the [section] 290 registration. [¶] ... [¶]
"... If I had been told about the [section] 290 registration, I would not have accepted the deal the prosecutor offered me.
"... I was not informed of the direct consequences of my plea agreement by my Counsel or by the judge, and the plea form that I signed only said that I might have to register as a sex offender.
"... I did not make an informed and intelligent decision about my plea agreement when I accepted it because I did not have all of the information. Now that I have all of the information, I wish to withdraw and go to trial to demonstrate that I am not guilty of the charges filed against me."
In opposition to appellant's motion to withdraw his plea, the People submitted a declaration of appellant's former attorney, Taleisnik. Taleisnik strongly disputed appellant's claim that he never told appellant his acceptance of the plea agreement would require him to register as a sex offender for life. Taleisnik described the circumstances leading to appellant's acceptance of the plea agreement as follows:
"... I represented [appellant] ... from April 25, 2014 to November 19, 2014 and appeared on his behalf on December 2, 2014 at the sentencing hearing.
"... On April 25, 2014 I received the offer of one count of ... [section] 243.4, a felony, with no initial state prison, from the Deputy District Attorney, Lara Clinton. I asked to continue the case in order to review the evidence and discuss the offer with [appellant].
"... I communicated/discussed the offer with [appellant]. Our discussions regarding the offer included the requirement that [appellant] would have to register as a sex offender for life pursuant to ... [section] 290
once convicted. [Appellant] was not pleased with the registration consequences.
"... On May 16, 2014, [appellant] rejected the offer and the matter was scheduled for a Preliminary Hearing on June 20, 2014.
"... Leading up to the Preliminary Hearing, attempts were made on my part to obtain an offer from Lara Clinton to resolve the matter without the need for [appellant] to register as a sex offender for life as he had previously, and repeatedly, made plain.
"... During each of our discussions, I conveyed to [appellant] my opinion that the offer was generous given the evidence in the case and the potential maximum exposure of 12 years.
"... On June 20, 2014, [I] appeared in court prepared to conduct the Preliminary Hearing. The victim was present in court and prepared to testify. A proposal arose wherein the parties would enter a stipulation that [appellant] receive a sentence of 180 days, 90 of which could be served on the Adult Offender Work Program. Ms. Clinton consulted with the victim and was prepared to agree to the stipulation provided the parties received the Court's approval.
"... Following the Court's approval, I reviewed the Change of Plea form with [appellant]. As is my customary practice, I advised [appellant] that he would have to register as a sex offender for life pursuant to ... [section] 290 (as I had done numerous times before during countless discussions with [appellant]).
"... Based upon the agreement as to the sentence and fully informed of all of the consequences associated with the plea, [appellant] decided to enter the plea although he continued to express his displeasure with the registration requirement."
On October 19, 2016, the trial court heard appellant's motion to set aside his nolo contendere plea. After hearing testimony from Taleisnik and listening to the arguments of counsel, the court denied the motion. In ruling, the court stated:
"All right. The standard here is pursuant to ... Section 1018, and on the application, the defendant, in order to withdraw the plea, must establish a couple of things—must establish good cause to have the plea withdrawn. To establish good cause to withdraw the guilty plea, the defendant need only show by clear and convincing evidence that he was operating under
mistake, ignorance or other factor, including inadvertence, fraud or duress which overcame the exercise of his free judgment. In addition, he must also show prejudice and that he would not have accepted the plea bargain if it had not been for the factor overcoming his free judgment. It is crystal clear to this Court that Mr. Taleisnik advised [appellant] of the lifetime mandatory registration associated with his change of plea, and this, in the Court's view, is a case of buyer's remorse, and the Court is going to deny the motion to withdraw the plea at this time for the reasons stated on the record. [¶] ... [¶] Now, at this point, the plea is standing, and you served the—your time in custody .... [¶] ... [¶] All right. So the registration requirement is appropriate, and the Court's going to order that you comply with all the terms and conditions of Probation as previously ordered."
Here, the record shows no "material variance" from our directions concerning the proceedings to be followed by the trial court on remand and we therefore reject appellant's claim that the resulting judgment is void. (Butler v. Superior Court, supra, 104 Cal.App.4th at p. 982.) Our prior opinion vacating the judgment and denial of appellant's first motion to withdraw his plea simply remanded the matter for further proceedings consistent with our opinion. The proceedings held by the trial court were not inconsistent with our opinion.
By allowing appellant to file a new motion to withdraw his plea, and permitting both sides to present evidence in support of and in opposition to the motion, the trial court enabled the parties to develop the factual record that was lacking at the time of the first appeal. Our conclusion that the trial court properly followed our directions on remand is unaltered by the court's failure to explicitly refer to this court's finding of Bunnell error in its ruling since the court's ruling implies that it found any error harmless. The court's ruling does not contradict our prior opinion and its handling of the proceedings on remand were appropriate. The question thus becomes whether the court properly exercised its discretion in denying appellant's motion to withdraw his plea filed on remand.
II. The Trial Court Properly Denied Appellant's Motion to Withdraw His Plea
As the trial court correctly observed, a defendant who seeks to withdraw his guilty or nolo contendere plea may do so prior to judgment by showing good cause. (People v. Sandoval (2006) 140 Cal.App.4th 111, 123 (Sandoval).) Section 1018 provides: "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."
To establish good cause, the defendant must show he was acting under mistake, ignorance or any other factor overcoming the exercise of his free judgment. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) The defendant must also show prejudice; that is, he would not have accepted the plea bargain had it not been for the mistake. (Moser, supra, 6 Cal.4th at p. 352.)
Where a defendant is represented by counsel, the grant or denial of a motion to withdraw a plea is within the trial court's discretion. (Sandoval, supra, 140 Cal.App.4th at p. 123.) On appeal, the reviewing court must affirm the trial court's decision absent a showing of abuse of discretion. (Ibid.) The defendant bears the burden of establishing that the court abused its discretion by denying a motion to withdraw his plea. (Ibid.)
Appellant has not met his burden of establishing the trial court abused its discretion by denying the motion to withdraw his plea filed on remand. Unlike in the case of his first motion addressed by our prior opinion, the parties had sufficient opportunity to develop the factual record in litigating the current motion. The trial court was entitled to credit the testimony of appellant's former attorney, which directly refuted appellant's claim that his attorney never told him that acceptance of the plea agreement would require him to register as a sex offender for life.
The testimony of appellant's former attorney established not only that he repeatedly advised appellant of the mandatory registration requirement under section 290, but also that appellant expressed displeasure with the requirement throughout the plea negotiations. Indeed, because of appellant's objections to the registration requirement, his attorney specifically attempted to obtain an offer from the prosecutor omitting the requirement. According to his attorney, appellant finally accepted the plea offered on June 20, 2014, after the attorney advised appellant that it still contained the section 290 registration requirement, and even though appellant continued to be unhappy with the requirement. On the record before us, the trial court could reasonably conclude the existence of Bunnell error in the plea proceedings had no effect on appellant's decision to enter the plea and deny the motion based on the absence of prejudice. No abuse of discretion has been shown.
DISPOSITION
The judgment is affirmed.