Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD189967, Frederick Maguire, Judge.
NARES, Acting P. J.
In an amended complaint, the San Diego County District Attorney charged Anthony Lee Mills with one count of attempted murder (Pen. Code, §§ 664, 187, subd. (a)), and one count of assault with a semiautomatic firearm (§ 245, subd. (b)). As to the attempted murder charge, the information alleged that Mills's conduct was willful, deliberate, and premeditated within the meaning of section 189. The information further alleged that Mills personally used a firearm in the commission of the felony or attempted felony (§§ 12022.5, subd. (a), 12022.53, subd. (b)), discharged the firearm (§ 12022.53, subd. (c)), and thereby caused great bodily injury or death to a person other than an accomplice (§ 12022.53, subd. (d)).
All statutory references are to the Penal Code unless otherwise specified.
Mills pleaded guilty to attempted murder and admitted to personally using a firearm in the commission of the offense. In exchange for his plea, the People dismissed the balance of the charges against Mills. Mills then unsuccessfully moved to withdraw his guilty plea. The court also denied Mills's request for a motion to reconsider the denial. The court denied probation and sentenced Mills to a prison term of 15 years, consisting of a term of five years for attempted murder and a mandatory 10-year enhancement for use of the firearm. Additionally, Mills was ordered to pay a restitution fine of $3,000 under section 1202.4, subdivision (b), an additional stayed restitution fine of $3,000 under section 1202.45, and a restitution fine of $420 to the victim under section 1202.4, subdivision (f).
Mills appeals, contending the court abused its discretion by denying his motion to withdraw his guilty plea. Mills argues that his plea was motivated by a loss of confidence in his trial counsel, and that this loss of confidence was justified by his attorney's failure to investigate and adequately prepare for trial. Mills also contends he pleaded guilty only because his attorney led him to believe that he was eligible for probation and that he had to plead guilty in order to take advantage of that eligibility. Accordingly, Mills seeks reversal of his conviction and asks this court to remand the matter with directions to permit him to withdraw his guilty plea. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Because Mills pleaded guilty before trial, the factual background is taken from the reporter's transcript of the preliminary hearing, dated May 10, 2005. The parties have stipulated to the preliminary hearing transcript as the factual basis in this case.
A. The Shooting on March 27, 2005
On the evening of March 27, 2005, Mills drove to a restaurant to exchange custody of his two daughters from a previous marriage. In the car with Mills were his current wife, Joyce Mills (Joyce), his two daughters from his previous marriage, and Joyce's two children from her previous marriage. When they arrived at the restaurant parking lot, Anitra Handy, Mills's ex-wife and the mother of his daughters, approached Mills's car with her current husband, Eric Handy. An argument ensued and escalated into a shoving match between Eric and Mills. Anitra's mother tried to intervene by restraining Eric, but Eric was able to get around her. Mills said, " 'Come on take a shot at me.' " Eric tried to swing at Mills, but missed. Mills then stepped back, pulled a gun from his pants, and fired at Eric. The first round did not fire, so Mills ejected the round by pulling back the slide. Mills fired the gun again, this time shooting Eric in the mouth. As Eric turned away, Mills pointed the gun at the back of Eric's head and pulled the trigger, but the gun did not fire. Mills and Joyce then got into their car and fled, leaving Mills's two daughters at the scene. Several hours later, Mills surrendered to police.
B. Motions in Limine
At trial, Mills was represented by Deputy Public Defender Marion Gaston. During the motions in limine, the court determined that Gaston would not be permitted to introduce evidence of Eric's knife assault on a prison guard while serving time at Centinela State Prison. The court based its decision on the prosecutor's misrepresentation that Eric had never admitted to actually possessing a knife while at Centinela, but only admitted to being"found guilty" of possession. Upon making its ruling, the court stated it was willing to revisit the issue if Gaston could verify that Eric admitted to actually possessing the knife. In reality, Eric did admit during an earlier interview with district attorney investigator Nordell that he was "found in possession" of a knife while in custody at Centinela State Prison; however, the prosecutor's misrepresentation to the court was never corrected because Mills changed his plea to guilty before the issue could be revisited.
Also during the motions, the court ruled that it would allow the prosecution to introduce certain portions of tape-recorded telephone conversations between Mills and his wife while Mills was in custody. The conversations included statements by Mills that he was a "tough guy" and "a killer, not a fighter." They also included statements implying that Mills was "willing to take a hit, but [would] hit you back harder." The court found that certain portions of these conversations could be admitted to rebut Mills's self-defense claim and corroborate the prosecutor's theory of the case, which was "punch me, and I will shoot you."
C. The Change of Plea Hearing
Three days into trial, Mills entered a change of plea to guilty for attempted murder (§§ 664, 187, subd. (a)) and admitted to personally using a handgun in the commission of the offense (§ 12022.53, subd. (b)). On the prosecutor's motion, the court dismissed the balance of the charges against Mills.
Before the parties went on the record at the change of plea hearing, Mills was given two to three hours to use the restroom, speak with his wife, call his spiritual advisor, and discuss his decision with Gaston. Gaston even borrowed the clerk's calculator so that she and Mills could determine when Mills would be released. During the proceedings, the court verified that Mills had read and understood everything on the change of plea document before signing it. The court also verified that Gaston had explained the entire document to Mills, including the implications of pleading guilty, and verified that Gaston had answered all of Mills's questions. Mills represented that he was not threatened to take the plea and further waived his constitutional rights to a speedy public trial by jury, to remain silent, to confront and cross-examine witnesses against him, and to have the court subpoena witnesses and evidence for him. Moreover, the court informed Mills that pleading guilty to attempted murder would expose him to a sentencing range of five, seven, or nine years, and that the section 12022.53 enhancement would result in a mandatory prison term. Finally, the court received Mills's acknowledgement that his decision to plead guilty would be final.
D. Denial of Mills's Motion to Withdraw His Guilty Plea
Six months after entering his guilty plea, Mills moved to withdraw his plea under section 1018, claiming it was unknowing and involuntary. Specifically, Mills claimed: (1) Gaston had informed him that he would be sentenced to 45 years to life in prison if he refused to enter his plea; (2) Gaston failed to act in a reasonably competent manner as a diligent advocate by failing to fully investigate a meritorious defense and subpoena witnesses to testify on Mills's behalf; and (3) Mills's desire to proceed to trial was overcome by his belief that Gaston would not mount a proper defense on his behalf due to her failure to investigate and subpoena critical witnesses.
With regard to his ineffective assistance of counsel claim, Mills argued that Gaston was not adequately prepared to present three eyewitnesses at trial, was inadequately prepared to present character evidence, and abandoned Mills's affirmative defense of self-defense by failing to adequately prepare Evidence Code section 1103 witnesses. In his declaration supporting his motion, Mills stated that Gaston failed to call many of the witnesses who could vouch that Mills had a good reputation and has never been violent toward anyone. Mills further claimed that although he knew of three eyewitnesses who would have been helpful to his self-defense claim, neither Gaston nor her investigator got statements from them. Additionally, Mills declared that he knew Eric was a violent person and wanted Gaston to interview Eric's former victims so the jury could see the kind of person Mills was confronting on the day of the shooting. In all, Mills claims he identified 19 witnesses who could testify as to his good character and Eric's violent character and history, but Gaston's investigator interviewed only some of them. According to Mills, Gaston's failure to secure witnesses on his behalf caused him to feel trapped and confused, and further led him to believe that if he went to trial with an unprepared lawyer, he would be convicted and sent to prison for the rest of his life.
Additionally, Mills's attorney, Edward Peckham, stated in his declaration supporting the motion that Gaston failed to mount a proper attack on Eric's violent character in that no attempt was made to contact 10 to 15 witnesses/victims of Eric's assaultive past. According to Peckham, these witnesses could have been extremely damaging to the People's case.
With respect to the eyewitnesses, Gaston testified that she spoke with Joyce's son, Adrian Williams, during the motions in limine, but did not speak with her daughter, Sheniqua Johnson. Gaston testified that she had unsuccessfully attempted to speak with her about six weeks before trial, and would have attempted to speak with her again had trial proceeded. Gaston speculated that Joyce was upset with Mills and therefore made herself and her children unavailable. Regardless of their unavailability, Gaston's strong inclination was that, no matter what the two children had to say, she was not going to put them on the witness stand. Rather, Gaston testified that she wanted to talk with them only to confirm her opinion that calling them as witnesses would be a mistake. According to Gaston, the two children and Joyce gave slightly inconsistent statements to the police. Gaston believed that the children would not be believed and that the jury would perceive the defense as "trying to cook up evidence." She thought this would negate or hurt Mills's credibility, especially because Mills was trying to show he was genuinely afraid for himself.
With respect to Mills's character witnesses, Gaston testified that the potential names Mills gave her included a group of witnesses that neither Gaston nor her investigator could locate with their "best efforts." Another group of character witnesses flatly contradicted what Mills told Gaston to expect. Gaston did identify three witnesses who could attest to Mills's peaceful and mild-mannered character; however, she ultimately decided not to call them. Gaston believed their ability to assist Mills was limited because they did not know him very well, and knew him only in very narrow settings. Further, Gaston was concerned that these witnesses would be impeached through a devastating "have you heard" cross-examination, based on Mills's tape-recorded conversations with his wife while in custody. Gaston thought that it was a poor strategic move to call these witnesses because it would allow the district attorney to repeat the damaging, inflammatory things Mills said during those conversations. Gaston concluded that these witnesses would not assist Mills's case.
The court denied Mills's motion. It noted the broad discretion that a court has under section 1018 to permit withdrawal of a guilty plea upon a showing of good cause. The primary issue for the court was whether the record reflected that Mills made a fully-informed and free choice. After reviewing and summarizing the events leading up to the guilty plea, as well as the various motions in limine during the first three days of trial, the court found that the record did not support Mills's assertion that he had lost confidence in Gaston. The court further found Mills was not unaware that he would serve time in prison. The court noted it had reiterated on three or four occasions during the change of plea hearing that a guilty plea meant a mandatory prison term. The court also highlighted that Mills was given an opportunity few defendants have in that he was permitted to discuss his decision to plead guilty with his wife, was allowed to contact his spiritual advisor, and was able to think about the plea bargain overnight. The court further stated it clearly told Mills that " '[o]nce this [was] done, [Mills couldn't] come back to [the court] and say, []I changed my mind. This isn't what I wanted to do. ' " Having considered all this, the court ruled: "I just don't see it. I went through this extensively with you. You had two days to think it over, and, frankly, I just can't buy the proposition that somebody who is as strong-willed and determined as you are would throw your hands up in despair. [¶] I will deny the motion."
Subsequently, the court declined to hear Mills's motion to reconsider, but permitted counsel to make statements for the record. Mills's attorney asserted that Gaston was incompetent and failed to adequately represent Mills. The court rejected counsel's assertion and opined that Gaston had "litigated the issues very thoroughly" and "very effectively litigated the prior bad act stuff . . . ." The court further stated, "Maybe an appellate court will tell me I'm wrong, but she was thorough. I thought she was competent."
On the motion to reconsider, Mills was represented by Deputy Alternate Public Defender Steven Wadler.
DISCUSSION
Mills contends the judgment should be reversed and the matter remanded with directions to permit him to withdraw his guilty plea. Mills claims the court abused its discretion by denying his motion to withdraw his plea because the record shows his plea was motivated by a loss of confidence in Gaston, which was justified by Gaston's failure to investigate and prepare for trial. We reject Mills's contentions because the record supports the court's finding Mills's decision to accept the plea offer arose from his free judgment and a thorough understanding of the implications of his plea. Moreover, the record reveals by clear and convincing evidence Mills's decision to plead guilty was not the result of Gaston's alleged incompetence.
I.
STANDARD OF REVIEW
When a defendant is represented by counsel and pleads guilty, any subsequent decision on a motion 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." (People v. Shaw (1998) 64 Cal.App.4th 492, 495-496 (Shaw); People v. Harvey (1984) 151 Cal.App.3d 660, 666-667 (Harvey); People v. Urfer (1979) 94 Cal.App.3d 887, 891-892 (Urfer).) The court's decision will not be disturbed unless there is a clear showing that the court abused its discretion, that is, "the court exercise[d] discretion in an arbitrary, capricious, or patently absurd manner resulting in a manifest miscarriage of justice." (Shaw, supra, 64 Cal.App.4th at p. 496; People v. Huricks (1995) 32 Cal.App.4th 1201, 1208 (Huricks); Harvey, supra, at p. 667; Urfer, supra, at p. 892.) The defendant must "present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty." (People v. Sandoval (2006) 140 Cal.App.4th 111, 123 (Sandoval); Shaw, supra, 64 Cal.App.4th at p. 496.)
II.
THE COURT DID NOT ABUSE ITS DISCRETION IN DENYING MILLS'S MOTION TO WITHDRAW HIS GUILTY PLEA
Section 1018 provides that before entry of judgment, a court may permit a defendant to withdraw a guilty plea for good cause. (§ 1018; Sandoval, supra, 140 Cal.App.4th at p. 123.) To establish good cause, the defendant must show mistake, ignorance, inadvertence, fraud, duress, or any other factor overcoming the exercise of his free judgment. (Sandoval, supra, 140 Cal.App.4th at p. 123; Huricks, supra, 32 Cal.App.4th at p. 1208.) " ' "Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged." [Citation.]' " (Sandoval, supra, at p. 123; see also Shaw, supra, 64 Cal.App.4th at pp. 495-496.) Although section 1018 must be liberally construed to promote justice, a plea may not be withdrawn merely because the defendant changed his or her mind. (In re Vargas (2000) 83 Cal.App.4th 1125, 1143; Huricks, at p. 1208.)
A. Attorney Gaston Provided Competent Assistance of Counsel
Mills contends his lost confidence in Gaston and ultimate decision to accept the plea deal were a result of Gaston's failure to provide competent assistance of counsel, as well as his dissatisfaction with Gaston's lack of effort on his behalf. "Plea bargaining and pleading are critical stages in the criminal process at which a defendant is entitled . . . to the effective assistance of counsel. [Citations.] '[W]here ineffective assistance of counsel results in the defendant's decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea.' [Citations.] (Footnote omitted.) [¶] To establish ineffective assistance of counsel . . ., a defendant must show that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel's deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel's failings, the result would have been more favorable to the defendant." (In re Resendiz (2001) 25 Cal.4th 230, 239.) "[T]he reasonableness of defense counsel's conduct must be assessed 'under the circumstances as they stood' at the time of counsel's acts or omissions; 'second-guessing' is to be avoided. [Citations.]" (People v. Mincey (1992) 2 Cal.4th 408, 449.)
1. Evidence of Eric's violent character under Evidence Code section 1103
First, Mills contends that his lost confidence in Gaston was justified by Gaston's failure to investigate Eric Handy's previous violent conduct, namely, his knife assault on the Centinela prison guard while serving time in prison. Mills takes issue with Gaston's decision not to produce live testimony from Eric's victims and instead impeach Eric should he deny his past conduct in prison. Mills claims that Gaston was not prepared to impeach Eric in the event that he denied two incidents of prison violence because Gaston failed to obtain records regarding them.
With respect to the court's exclusion of Eric's knife assault on the Centinela guard, Mills contends that, had Gaston been familiar with the content of Eric's admission to investigator Nordell, she could have corrected the district attorney's misrepresentation during the motions in limine and thereby successfully obtained the court's permission to introduce evidence of the assault. According to Mills, the fact that Gaston did not catch this "glaringly obvious misrepresentation" by the district attorney shows she had not investigated and was not prepared even to support her own in limine motions, much less offer the evidence she was seeking leave to introduce through those motions.
Mills's argument is unpersuasive. The court's decision to exclude evidence of Eric's knife assault on the Centinela prison guard was not final, and the court was willing to revisit the issue upon an offer of proof that Eric admitted to being found in possession of the knife. Even had Gaston never followed through by speaking with Eric privately, or had Eric not admitted to being found in possession of the knife, Gaston was still prepared to offer other evidence of Eric's violent past. Specifically, the court permitted Gaston to admit evidence of another assault on a prison guard at High Desert State Prison, for which Eric received a year "in the hole." In addition, the court permitted Gaston to offer evidence of Eric's three robbery convictions, one in which Eric had admitted to using a gun. Even if these four incidents did not fully account for Eric's violent past, they were sufficient to show that such a past existed. Further, Gaston testified that, were Eric to deny his violent past, she was prepared to impeach Eric by calling Investigator Nordell to the stand, as well as the probation officer to whom Eric had admitted his involvement in the robberies, and the arresting officer who recovered the gun from Eric in connection with those robberies. The record reveals that Gaston was prepared to present a defense based on Eric's admissions of his violent past, and the court was satisfied that Gaston did not find it necessary to call Eric's victims in order to prove his violent propensities. Thus, the court correctly found that Gaston's alleged lack of investigation and preparation regarding Evidence Code section 1103 witnesses did not cause Mills to "throw [his] hands up in despair."
2. Witnesses at the scene
Mills next contends that Gaston's " 'tactical decision' " not to call the children of Joyce Mills, both present at the time of the shooting, was not informed by investigation. The record shows, however, that Gaston's decision did not "[fall] below an objective standard of reasonableness under prevailing professional norms." (In re Resendiz, supra, 25 Cal.4th at p. 239.) Gaston made substantial efforts to contact the children before and during trial. In particular, Gaston testified that she attempted to speak with Sheniqua Johnson about six weeks before trial, and would have attempted to speak with her again had trial proceeded. However, Gaston believed Joyce made herself and her children unavailable to Gaston. Gaston cannot be blamed for Joyce's refusal to make herself and her children available for her husband's defense. Furthermore, Gaston's decision not to call the children was informed by an adequate review of the children's police statements, which she found to be inconsistent, as well as her more general opinion that the children would not appear truthful in front of a jury. Gaston even discussed this tactical decision with Mills. We conclude that Gaston's tactical decision was reasonable in light of her intent to preserve the defense's credibility and avoid any inference that Mills was not acting in self-defense at the time of the shooting.
3. Character witnesses
Mills also asserts that there is no reason for this court to accord any deference to Gaston's decision not to call character witnesses on his behalf. Specifically, Mills argues that Gaston's decision not to call the three witnesses who could attest to his peaceful and mild-mannered character was made without any basis in preparation or investigation. According to Mills, Gaston should have interviewed these character witnesses to determine whether his tape-recorded jail conversations would have affected their view of his peaceful nature. Mills further contends that Gaston knew most of these conversations were going to be introduced into evidence regardless of whether Gaston called character witnesses, and that Gaston merely assumed the recorded statements would adversely affect the proposed character evidence.
We conclude that Gaston did not act unreasonably in her investigation and preparation of potential character witnesses. In doing so, we assess Gaston's conduct " 'under the circumstances as they stood' at the time of [her] acts or omissions." (People v. Mincey, supra, 2 Cal.4th at p. 449.) Gaston testified that she and her investigator used their "best efforts" to locate a group of potential witnesses Mills provided, but could not find them. With respect to those witnesses, nothing more could be expected of Gaston. Likewise, with respect to the character witnesses who flatly contradicted what Mills told Gaston to expect, Gaston did not act unreasonably by not calling them because they could not attest to Mills's peaceful character.
Additionally, Gaston did not act unreasonably in ultimately deciding not to call the three potential character witnesses that she identified. Gaston's investigation of these witnesses revealed that they did not know Mills very well, and knew him only in narrow settings. Gaston reasonably concluded that Mills's inflammatory tape-recorded jail conversations could be used to destroy the witnesses' credibility, even if the witnesses' view of Mills would not have changed upon hearing the recordings. Moreover, Gaston testified that if she called the three witnesses to testify, the prosecution would have had the opportunity to replay the inflammatory recordings for each witness, thereby damaging Mills's self-defense claim. Thus, the issue for Gaston was not whether the witnesses would stand firm for Mills on cross-examination; rather, the issue for Gaston was what the jury would hear. It was not unreasonable for Gaston to decide that the damage to Mills's reputation and case from the jury's repeatedly hearing the inflammatory statements outweighed the benefits of good character testimony from three witnesses who knew Mills only in limited settings.
4. Probable outcome at trial
In determining whether a defendant who has pleaded guilty "would have insisted on proceeding to trial had he received competent advice, an appellate court also may consider the probable outcome of any trial, to the extent that may be discerned." (In re Resendiz, supra, 25 Cal.4th at p. 254.) Here, the evidence against Mills was great. There were six eyewitnesses at the scene who could attest to the following: (1) Mills provoked Eric to take a swing at him; (2) Mills shot Eric while Eric was turning to walk away from Mills; and, (3) after shooting Eric, Mills followed behind Eric, pointed the gun at the back of Eric's head, and pulled the trigger. Two bullets, one spent and one live round, were found at the scene confirming the eyewitnesses' accounts that Mills's gun misfired before Mills successfully shot Eric and fled. If convicted, Mills faced possible life imprisonment on the substantive charge, and could have been exposed to a 30-year sentence before becoming eligible for parole. By accepting the offer, Mills knew he would spend, at most, 19 years in prison. Thus, the record supports the finding that Mills pleaded guilty out of his own free will and desire to "see his kids someday," not because he "threw up [his] hands" after losing confidence in Gaston. Because it was not "arbitrary, capricious, or patently absurd" for the court to find that Mills's plea was not the result of incompetent assistance of counsel, the court did not abuse its discretion in denying Mills's motion to withdraw his guilty plea.
B. Mills's Decision to Plead Guilty Was Not Made Unknowingly
Mills contends he was not aware at the time of his guilty plea that it would carry a mandatory prison term. He argues that Gaston led him to believe he was eligible for probation and that he had to plead guilty in order to take advantage of that eligibility. "In reviewing the action of the lower courts, we will uphold those factual findings of the trial court that are supported by substantial evidence." (People v. Camacho (2000) 23 Cal.4th 824, 830.) Here, the court believed Gaston's version of the events, based upon substantial evidence that Mills was told he would serve a mandatory prison term. At the hearing on the motion to withdraw the plea, the court explicitly informed Mills that the section 12022.53 enhancement meant mandatory prison time. Additionally, Gaston testified she informed Mills that the original plea offer would involve prison and not probation, and discussed the district attorney's counteroffer with Mills at length. Mills had two to three hours to process this offer, as well as discuss the decision with his wife and his spiritual advisor. Gaston further denied ever telling Mills that probation was a possibility. Because there is substantial evidence to support the court's finding that Mills understood the consequences of his guilty plea, we conclude that the court did not abuse its discretion in denying Mills's motion to withdraw the plea.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J. O'ROURKE, J.