Opinion
G036209
5-22-2007
THE PEOPLE, Plaintiff and Respondent, v. ALEXIS NICHOL PETROVICH, Defendant and Appellant.
Andrew E. Rubin, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Annie Featherman Fraser, Marissa Bejarano and Keith Lollis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Alexis Nichol Petrovich appeals from the judgment granting her probation after she pleaded guilty to the felony of possessing ecstasy and the misdemeanors of being under the influence of a hallucinogen and driving a car. (See Health & Saf. Code, §§ 11377, 11550; Veh. Code, § 23152.) Within two months of her guilty plea, she substituted new counsel for her previously retained counsel and made a motion to withdraw the plea, which was denied. She then sought a certificate of probable cause to appeal the denial, which also was denied. In a peremptory writ, we ordered the trial court to vacate its denial for the certificate and issue a new order, granting the certificate of probable cause. Petrovich now contends on appeal the trial court erred in denying her motion to withdraw the plea as to one count of the pleading, the count charging her with a violation of Health and Safety Code section 11550, subdivision (a), which carried a mandatory minimum term of 90 days in jail. However, because of the interlocking nature of all three counts, she requests that her guilty plea as to all three counts be withdrawn. We reverse the judgment, remanding the case to the trial court with directions.
The primary condition of this probation was that she serve 90 days in jail, the minimum amount of custody time for the misdemeanor charge of being under the influence of an hallucinogen. (See Health & Saf. Code, § 11550, subd. (a); see also Veh. Code, § 23536, subd. (a) [minimum term of 96 hours for driving under the influence].)
The motion was also labeled a "Petition for a Writ of Coram Nobis" as an alternative to the motion to withdraw the plea.
DISCUSSION
Petrovich argues that the trial court abused its discretion in denying her motion to withdraw her guilty plea to count 2 of the complaint, and because "the plea to that count was an integral part of the plea bargain, appellant should be allowed to withdraw all of her guilty pleas and the case should be remanded to the trial court for further proceedings."
At the time she changed her plea to guilty, Petrovich signed a form, initializing each of the pertinent provisions, which showed she was pleading guilty to a felony violation of Health and Safety Code section 11377 and misdemeanor violations of Health and Safety Code section 11550, subdivision (a), and Vehicle Code section 23152, subdivision (a). The form declared that she faced a maximum penalty of three years in prison plus 18 months in county jail. Moreover, she initialed the specific provision in which she waived her right to appeal "from decisions and orders of the Superior Court. I waive and give up my right to appeal from any and all decisions and orders made in my case, . . . I waive and give up my right to appeal from my guilty plea. I waive and give up my right to appeal from any legally authorized sentence the court imposes which is within the terms and limits of this plea agreement." She also personally initialed the provisions setting out the specific terms of her probation which included the mandatory minimum period of 90 days in jail, the requirement that she register as a narcotics offender, and her completion of all the requirements of a first time offender of driving under the influence of alcohol or drugs. The trial court then verbally repeated these items, and Petrovich verbally agreed to each of them before her change of plea was accepted.
Petrovich contends her guilty plea to the charge of being under the influence of a hallucinogen could not be a knowing and voluntary act because there is no crime of being under the influence of depakote, the presumed substance named in the complaint. She alleges she was represented by an incompetent attorney who forced her to sign the forms and enter the plea, and that she would never have voluntarily agreed to plead guilty to a nonexistent crime.
We say "presumed," because the complaint misspelled the substance as "pepakote."
It is noted that the attorney who Petrovich originally retained, Ari Krell, signed the change of plea form, but was not the attorney who was present with Petrovich at the time of the change of plea. According to the reporters transcript of the change of plea hearing, a different attorney—a woman by the name of Hinshaw—stood with her and joined in the plea. About two months later, Petrovich retained Daryl B. Thompson, who filed the motion to withdraw the plea.
At the hearing on the motion to withdraw the plea, Petrovichs boyfriend, Paul Serrato, testified that he was present when, over her express protests, Petrovichs attorney browbeat her into pleading guilty. Moreover, Serrato testified that the attorney refused to show Petrovich the charging document, filled out the purported statement of facts supporting the plea and then demanded she sign "on the bottom line." At the time, Serrato advised her not to sign the form. According to Serrato, Petrovich was crying, and the attorney yelled at her to sign. Serrato also testified that he knew that Petrovich was taking medication to control seizures at the time of the incident.
Petrovichs new attorney filed a motion to withdraw the plea, including a declaration signed by Petrovich, in which she averred she was completely unaware that she was agreeing to serve 90 days in jail as a condition of probation. In the declaration, she stated she was taking depakote for "stress-induced seizures" at the time of her arrest. She declared that she believed she had "a seizure and passed out when [she] crashed into the center divider." Finally, she denied she was under the "influence of [ecstasy], pepacote or any other illegal or illicit drug."
The court denied the motion in a written ruling, as follows:
"(1) Defendants contention that she [pleaded] guilty to a nonexistent offense is, in effect, a demurrer to the complaint. Having [pleaded] guilty, her plea waived all defects in the complaint which could have been raised by demurrer. [Citations.] [¶] (2) Her application for coram nobis relief is denied on the ground that the elements of this writ have not been met. Defendant has failed to show that at the time of judgment, an error of fact existed, which does not appear in the record, does not involve the merits of the case, which through no fault or negligence of petitioner was not presented to the court, and which if known, would have prevented rendition of judgment. [Citation.] [¶] (3) Defendants additional grounds for relief which allege that (a) her attorney failed to advise her that she would be required to serve 90 days in jail as a result of her guilty plea, and that (b) she was not guilty of the offense, are not supported by good cause and/or clear and convincing evidence."
On review of a denial of a motion to withdraw the plea, the trial courts ruling must be shown to be an abuse of discretion before the remedy of reversal can be ordered. Only a clear abuse of discretion warrants reversal because any post-judgment withdrawal of a guilty plea results in "inconvenience and waste of time and effort of courts and prosecuting officers." (4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings, § 290, pp. 505-506.) Without a clear showing of abuse, the denial to withdraw the plea must be upheld on appeal. (See People v. Mickens (1995) 38 Cal.App.4th 1557, 1561.) All findings by the lower court, whether explicit or implicit, must be adopted by the reviewing court if supported by substantial evidence. (See People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) However, we must keep in mind that the statute authorizing a withdrawal of a guilty plea is to be enforced "to promote justice." (Pen. Code, § 1018.)
We note that, on appeal, Petrovich is only contesting the trial courts denial of the motion as to count 2 of the complaint: being under the influence of a drug listed in Health and Safety Code sections 11054-11058. In its denial of the motion, the court rejected this argument, noting two reasons for this rejection: (1) Petrovich waived all defects in the pleading by changing her plea to guilty; and (2) she (allegedly) failed to carry her burden in proving her factual allegations by clear and convincing evidence. (See People v. Shaw (1998) 64 Cal.App.4th 492, 496 [burden on defendant to prove by clear and convincing evidence "that ends of justice would be subserved by" withdrawing the guilty plea and Shaw failed to meet this burden by merely noting the trial court failed to advise him of potential deportation following felony conviction].) However, there is no evidence to support the trial courts conclusion that she knowingly pleaded guilty to a nonexistent crime, a fact conceded by the Attorney General at oral argument, quite to its credit. And it rather defies logic to conclude that anyone—attorney or client—would agree to plead guilty to a nonexistent crime that would require a mandatory period of incarceration and would render the client ineligible to receive treatment in lieu of incarceration for the accompanying felony charge. That is, it is illogical to have recommended such a course of action unless he or she was ignorant that the charge was not a crime.
"`"To establish good cause [to withdraw a guilty plea], it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment [when he or she entered that plea]. [Citations.] Other factors overcoming defendants free judgment include inadvertence, fraud or duress. [Citation.]" [Citations.] "The burden is on the defendant to present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty." [Citation.]" (People v. Sandoval (2006) 140 Cal.App.4th 111, 123, italics added.)
In Sandoval, the prosecution offered a "package deal" to four defendants which included Sandoval and his three gang buddies. Sandoval initially refused the offer, inflaming the anger of at least one of his gang comrades, who "sat down next to him" during a court recess and told Sandoval that he would "get your ass in prison" if he did not accept. Sandoval then entered a guilty plea informing the court that no one had threatened or promised him anything except for the set term of 27 years in prison. (People v. Sandoval, supra, 140 Cal.App.4th at pp. 118-121.) The next day, Sandoval called his attorney and asked to withdraw his plea because he felt his life would be in danger if he did not plead guilty in his codefendants presence. (Id. at p. 122.)
At the hearing on the motion to withdraw the plea, Sandovals codefendant testified that he, in essence, had threatened Sandoval to get him to accept the deal so that he and his other two gang brothers would not face life in prison. The codefendants attorney also testified that he feared his client had threatened Sandoval, and his client had "basically [said] yes" when he asked him if threats had been used. (People v. Sandoval, supra, 140 Cal.App.4th at p. 121.) Nonetheless, the trial court denied the motion to withdraw the guilty plea because it doubted whether anything said by any other gang member actually instilled any fear in Sandoval at all. (Id. at p. 123.) The reviewing court disagreed with this assessment, noting that any guilty plea made involuntarily is a denial of due process. (Id. at pp. 125-127.)
"`It has long been established that guilty pleas obtained through "coercion, terror, inducements, subtle or blatant threats" are involuntary and violative of due process. [Citation.] [Citation.]" (People v. Sandoval, supra, 140 Cal.App.4th at p. 124.) Thus, Petrovichs declaration, entered without contradiction and corroborated by Serratos testimony, established that she pleaded guilty, not because it was the truthful or advantageous thing to do, but because her attorney browbeat her into doing it against her express wishes. And the record of the change of plea somewhat corroborates her in this: She was repeatedly counseled by the judge who took the plea to not cry and to relax, implying that she was crying and upset as she entered her plea. As the judge who took the plea was not the judge who heard the motion to withdraw the plea, these nuances were unknown to him but not unknown to us.
Petrovich proved via (1) her own declaration, (2) the testimony of Serrato and (3) the record of the change of plea, that she did not know she was pleading to a nonexistent crime and that she did not want to enter that plea. Although this issue could have been resolved more directly by way of a petition for writ of habeas corpus in the trial court, the record supports Petrovichs position to undermine the validity of the plea.
Nonetheless, the Attorney General relies on the rule, as did the trial court, that by pleading guilty, Petrovich waived all defects in the charging document. (See People v. Chadd (1981) 28 Cal.3d 739, 748.) But pleading guilty to a nonexistent crime is more than a mere facial defect in the charging document. Discovering after the fact that your attorney failed to inform you of this defect merely heightens the failure of counsel to properly advise the client. Thus, we can, as invited by Petrovich, easily distinguish Chadd based on the facts present in that case: Chadd knowingly changed his plea and then moved to withdraw it later simply due to "buyers remorse." Petrovich did not. She never knew that she was pleading guilty to something that (1) was not true and (2) was not a crime. (See People v. Hightower (1990) 224 Cal.App.3d 923, 928; see generally People v. Hernandez (1979) 96 Cal.App.3d 856, 864.)
Petrovich admitted in her declaration that she "crashed into the center divider" while driving her car. Her declaration explains that action by noting the prescribed medication she was taking to prevent seizures—and for which presumably she was convicted—rendered her unconscious, resulting in the collision with the divider.
See footnote 3 above.
The thrust of Petrovichs argument is that no competent attorney would have counseled the client to plead guilty to a "nonexistent offense" which, she contends, is the charge of being under the influence of depakote. Health and Safety Code section 11550, subdivision (a) prohibits being under the influence of a great number of substances—delineated under Health and Safety Code sections 11054, subdivisions (b)-(f), 11055, subdivisions (b)-(e), 11056, 11057, and 11058—none of which include depakote. The burden would have been on the prosecution to prove its inclusion in the lists at trial; but following Petrovichs change of plea to guilty, the burden was on her to prove its exclusion under the motion to withdraw the plea. However, the Attorney General conceded—quite laudably—that depakote is not controlled under these provisions. And it is the guilty plea to this misdemeanor that bars her from her otherwise lawful eligibility to Proposition 36 treatment for the felony of possessing ecstasy, to which she pleaded. In this very unique instance, the promotion of justice under Penal Code section 1018 demands the granting of Petrovichs motion to withdraw her guilty plea. Indeed, it is inconceivable that an appellate court could affirm the "conviction" of a "crime" which is indisputably nonexistent. At the least, it could not affirm and still retain its credibility.
See Penal Code sections 1210 et seq., known as the "Substance Abuse and Crime Prevention Act of 2000" and passed by initiative in 2000.
The judgment is reversed, and the case remanded to the trial court which is ordered to enter a new and different ruling, granting the motion to withdraw the guilty plea on count 2 and continuing the sentencing hearing on counts 1 and 3 until resolution of count 2 in accordance with the views expressed herein.
We concur:
ARONSON, J.
FYBEL, J.