Opinion
D047878
6-7-2007
THE PEOPLE, Plaintiff and Respondent, v. JERMYNE MICHAEL TROTTER, Defendant and Appellant.
NOT TO BE PUBLISHED
Jermyne Michael Trotter pleaded guilty to one count of robbery (Pen. Code, § 211) and admitted suffering a prior conviction constituting both a serious felony (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and a strike under the "Three Strikes" law (§§ 667, subds. (b)-(i), 668, 1170.12) under a plea agreement in which he acknowledged possible maximum punishment of 15 years in state prison as well as a specified fine and parole. Before his sentencing hearing, Trotter unsuccessfully moved to withdraw his guilty plea on grounds he entered his plea out of fear, ignorance, and coercion by his codefendants, and he was later sentenced to an 11-year prison term. On appeal, Trotter contends the trial court abused its discretion in denying his motion because he presented clear and convincing evidence that his "package" plea was coerced by his codefendants. Because we conclude the undisputed evidence showed that Trotter was threatened by one of his codefendants during the plea negotiations, and the trial courts reasoning on Trotters motion did not address those threats or carefully consider the issue of coercion, we reverse the judgment with directions that the court grant Trotters motion to withdraw his guilty plea.
All statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Trotters plea was entered under the provisions of People v. West (1970) 3 Cal.3d 595, resulting in the court accepting a factual basis for the plea without Trotter stating his incriminatory acts. We take the facts of the underlying offenses from the probation officers report, which used various police reports as its sources of information.
Early in the morning of April 25, 2005, Oscar Mancha approached a man, Rafael Quintero, at an adult bookstore and asked if he wanted to purchase drugs or the services of a prostitute. Quintero said yes and left the bookstore with Mancha, entering a GMC Yukon occupied by Dominic Barnes and Trotter, who was driving. The men left and eventually picked up another codefendant, Jennifer Lopez, who entered the back seat with Quintero.
While they were driving, one of the men pointed what appeared to be a shotgun at Quintero. The men took his keys, wallet and money and someone ordered him to "get out and keep running or Im going to shoot you." The Yukons occupants returned to Quinteros vehicle and took it using his car keys. The next day, two of the defendants used the vehicle to flee after committing one purse robbery and attempting to commit another.
The People filed a multi-count information against Trotter, Lopez, Mancha and Barnes, later amended, charging them with kidnapping for robbery (§ 209, subd. (b)(1)), robbery (§ 211), and unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)). Mancha was additionally charged with grand theft from a person (§ 487, subd. (c)).
On July 7, 2005, the day set for the preliminary hearing, all four codefendants entered guilty pleas to various charges. Trotter indicated he was prepared to plead guilty to robbery and admit one serious felony and one strike prior conviction. The court asked him, "Is that what you want to do, Mr. Trotter?" Trotter told the court he did not understand the latter part of the statement, and after the court advised him that "midterm plus 9" was how his sentence was calculated, Trotter answered, "Yes, sir." The court then addressed the other codefendants pleas, eventually turning to Trotter about his change of plea form in the following exchange:
The Court: Mr. Trotter, I have a change of plea form. It appears to bear the initials J.T. on the right-hand side.
[Trotter]: Take me out of here, man.
The Court: I am sorry?
[Trotter]: Take me out of the fucking court.
The Court: Mr. Bobo [Trotters counsel], you got to let me know what is happening. [¶] There is a process I need to go through and ask you questions, and if you have questions, you ask them. That is because we dont do anything in a hidden fashion.
[Trotter]: I dont understand your justice. It is not justice to me.
The Court: Mr. Trotter, you stated that you agree that you were guilty and you will plead guilty to this offense with limits on the sentencing. Is that still what you want to do, sir?
[Trotter]: I have no choice.
The Court: You may not have a real choice in a practical sense, but I still have to make sure you know what you are doing, you understand? That is part of my job.
[Trotter]: Yes, your honor.
The Court: Are you okay?
[Trotter]: Yes.
The Court: All right. I have a form. Did you read and understand and sign this, sir?
[Trotter]: Yes, sir.
The Court: Any questions you have about what is written on this form?
[Trotter]: I question everything.
The Court: Well, if you have questions about what is on this form, what it says or means, you tell me and I will try to explain.
[Trotter]: It is not justice to me. It is not justice.
The Court: You are saying it is, quote, not justice. Do you feel you are not being treated fairly; is that right?
[Trotter]: My only problem is my drug habit.
The Court: All right. But that, we have to deal with, but we also have to deal with the crime that was committed and your responsibility for it.
[Trotter]: I looked out for that man. I protected that dude. Yes, your honor.
The Court: You signed it, Mr. Bobo?
[Trotters counsel]: I did, your honor.
The Court: I am going to be coming back to counsel having issues here. It is clear Mr. Trotter is emotional, but he also knows he doesnt have a lot of choices.
[Trotter]: Do the rest of my life in jail.
The Court: This isnt a life sentence, sir.
[Trotter]: No, but if I lose
The Court: If you lose, you could spend a lot more time. That is true.
[Trotter]: I have no choice."
On further questioning, Trotter admitted he understood and waived his constitutional rights to a speedy trial by jury, the right to cross-examine and confront witnesses called against him, to remain silent and call witnesses at no expense to him. Trotters counsel, Ronald Bobo, stated he agreed the plea was in Trotters best interest and concurred in his clients waiver, acknowledging he had discussed with Trotter, Trotters wife, and Trotters mother the constitutional rights he was giving up and the offenses. Trotter stated, "Yes, your honor," when asked whether he was entering his plea freely and voluntarily and believed it was in his best interest. The court found that Trotter and the remaining defendants were in full possession of their faculties, that each understood the nature of the proceedings and the consequences of the pleas entry, and that their waivers of constitutional rights were knowing, intelligent, express and explicit.
In October 2005, Trotter moved to withdraw his guilty plea. He argued he had entered into the plea out of "fear and ignorance" in that he was coerced and pushed into doing so by his codefendants. In a sworn declaration accompanying the motion, Trotter averred he was innocent and the robbery never occurred; that he was placed in the same holding cell as his male codefendants, who "were very angry at me for refusing to plead guilty because the plea bargain meant that [Barnes] would be released that day and [Mancha] would have two robberies dismissed." Trotter averred, "They also told me that Lopez, who we all knew hadnt done nothing, would be released and go home to her kids. They pressured and threatened me until I plead [sic] guilty." According to Trotter, he had told his lawyer that the victim, Quintero, was lying, and his counsel did not tell him he had given inconsistent stories. Trotter concluded: "I did not make a free and intelligent decision to plead guilty, because of the threats and pressure from the codefendants and the lack of knowledge that [the] defense case had gotten even stronger by a different false story told by the alleged victim."
The court heard Trotters motion over the course of two days, considering testimony from Trotters counsel, Trotter and codefendant Barnes. Attorney Bobo testified that on the morning of the preliminary hearing in July, he and Trotter discussed resolving the case for a sentence that did not include life in prison, initially a twelve-year prison term. Trotters initial reaction to the plea was negative; Trotter refused to sign the package deal plea telling Bobo he was innocent and he thought the victim was a liar. Bobo testified that the lawyers for Lopez and Barnes told him that under the package deal, their clients would be released from custody that day, and Manchas attorney told him his client desperately wanted to take the offer. He admitted he received some "minor pressure" from primarily Manchas attorney to return to his client, who was the only holdout. Bobo spoke with Trotter two or three times over the course of the morning in an area separate from the other defendants, partly because the other codefendants counsel asked him to stress the importance of the plea. Throughout those conversations, Trotter maintained his innocence and was reluctant to sign the change of plea form. According to Bobo, Trotter was concerned about the other two defendants getting out of jail, especially Lopez and Barnes, who Trotter said was asleep in the back of the vehicle and wasnt involved at all.
Bobo eventually convinced the prosecutor to drop the sentence to 11 years, and he returned to Trotter with that offer. Bobo testified that when he did so, Trotter was "very, very emotional, very upset, and rejected it." During the lunch hour, Bobo told Trotter to think about the 11-year offer; when Bobo returned to talk to him, Trotter signed the plea form, "still reluctant" and "visibly upset." Bobo was not aware that Trotter was being kept in a detention area that morning with the other male codefendants; Trotter did not tell him anything that was happening there, and Bobo did not ask because he did not know they were together. When asked whether he was surprised that Trotter signed the plea, Bobo answered, "Yeah, I guess." However, Bobo testified he did an appropriate and ethical job representing Trotter; that he agreed with Trotters desire to enter into the plea and so advised the court; that he did in fact agree that the plea was in Trotters best interest; that he discussed Trotters rights and defenses with him, his wife and mother; and that he concurred in Trotters waiver of those rights.
Bobo testified that on that morning before Trotter gave his plea, he learned of new information from an investigators interview of the victim in which the victim had given another version of what had happened. Although Bobo did not have a copy of the report, he mentioned to Trotter that the victim had given another version of what had occurred and had "changed his statement a little bit." Bobo testified that at some point after Trotters plea, Trotter contacted him because he had found out about the letter and was concerned because he believed all along that the victim was lying. According to Bobo, Trotters decision to withdraw his guilty plea was made at that time. When Bobo visited Trotter in jail at his wifes request, Trotter told him he had been harassed and pressured by the other two male codefendants.
Trotter testified that the first time he heard about a plea deal in the case was on July 7, 2005, the day of the preliminary hearing, when Mancha and Barnes told him their attorneys had deals for them. According to Trotter, he then met with Bobo separately and told him he did not want to accept the offer. Trotter returned to the holding cell with the other defendants, who asked him what he was going to do and told him they wanted to reach a deal. Trotter testified that Mancha was "very serious" about taking the deal, and when they learned Trotter was not going to take it, "they didnt like it." When asked what they said to him at that point, Trotter said, "Just that I would have to deal with the repercussions basically. If I didnt want to sign the deal and be selfish, basically, it was put to me if I wanted to be selfish, Id deal with what I had coming to me." Trotter explained that that meant "[n]othing nice," pointing out that he was in a holding tank as the sole African-American person with 17 other Hispanics. He testified the situation worried him: "Im not worried in the sense about Mr. Mancha himself, but this is jail.. . . You cant go anywhere. Theres nowhere to run in jail. If you do something you aint supposed to do or somebody wants to get to you, theres nowhere to go here. Its going to come to you regardless."
Trotter recounted the discussions with Bobo about the plea. He testified he had been led to believe that his case was "nothing," and then on the morning of the preliminary hearing, Bobo advised him it would not be in his best interests to reject the deal, telling him, "If it was my son or my brother, I would recommend that he sign the deal." Trotter stated he protested that he was innocent, and Bobo responded that he "had no doubt" but that if his codefendants were convicted, all of them would "go down."
Trotter testified that he did not tell Bobo that morning that the other two defendants were putting pressure on him because he had too much on his mind, was "spooked" and did not know what to do. Asked what his codefendants said to him each time he returned to the holding cell, he said: " What are you going to do? What are you going to do? What are you gonna do? Come on, Man. Dont fuck it up." According to Trotter, he signed his plea form in the jury box while he was handcuffed to his codefendants. He remembered only some of what went on during his plea; he recalled that things felt "surreal" to him and he was crying. On cross-examination, Trotter testified that codefendant Barnes never specifically said he was going to physically hurt him, but that Mancha threatened him by insinuation in the holding cell, saying, "Man, dont fuck this up for me, Man. You pay for it."
Trotters codefendant Barnes testified that the substance of the conversations between the three codefendants in their holding cell was to take the deal, that it was "the best deal we could get." Though he denied putting any pressure on Trotter himself, Barnes testified that Mancha put "a lot" of pressure on Trotter, in that he overheard Mancha tell Trotter "that if he didnt sign hed get dealt with . . . ." It sounded to Barnes like Mancha was threatening Trotter. Barnes stated that during the morning Trotter was "aggravated," like he was "being forced to do something he didnt want to do." He described Trotter during the taking of their pleas as "disturbed" and "bothered"; he also observed that Trotter broke down and started crying at some point, and he was emotional or crying during the change of plea.
Barness counsel of record, Timothy Scott, testified he had never heard Trotter threatened by a codefendant, attorney or anyone else, however Scott admitted he was never present when Trotter was talking to his attorney.
Ruling on Trotters motion, the court stated it had carefully considered all of the evidence, including the "substance of Mr. Trotters responses to the court in an atmosphere which shows an emotional time for the defendant Mr. Trotter." It stated it considered Trotters sworn testimony at the hearing in which his plea was taken, the plea form and the courts inquiry as to that form during the change of plea hearing, the offer of proof with respect to the factual basis for his plea, the stipulated factual basis for Trotters plea under People v. West, and Trotters prior felony convictions, as well as the fact Trotter was larger and heavier than his codefendants. As to the latter factor, the court stated it felt Trotter was, "a person who, frankly, in the courts judgment, can handle himself and knows the ways of custodial settings. If anyone can deal, he can." Addressing the evidence of Trotters agitation and emotion, the court explained: "I consider the evidently emotional condition of defendant as I see it in the pages of the transcript and his description here. I suppose the question certainly in part for the court to consider is[:] is that an emotional condition thats consistent with anyone whos about to commit themselves to a long-term consequence, whether its an eleven-year term in prison or some lesser term or whether its simply some young student committing himself or herself to eight years of education so they can become a college graduate, then maybe a medical student, graduate, and some day launch into an internship and hopefully one day ten years down the line, become a physician. [¶] Thats a long time to commit to. When you commit to eleven years in prison, thats a long time. And the question for the court in part then to consider likewise, is the emotion reflected here because of the prospect of [an] eleven-year term, whether its a quote, good deal[,] unquote, or not as opposed to a possible life term or term of 25 years to life or life term because of some unalleged plausible allegable crime or kidnap for purposes of robbery, or is the emotion due because the persons under threat, under fear, so much so from a fellow defendant that he determines to enter a plea not of his own free will but under duress."
Barnes testified he was five feet four inches in height, and weighed 125 pounds. Bobo acknowledged during his testimony that Mancha could be accurately described as five foot six inches in height, weighing about 145 pounds. Trotter is described in the probation officers report as six feet tall, weighing 159 pounds.
AARON, J., concurring:
The court concluded the evidence did not amount to clear and convincing evidence that Trotters earlier sworn testimony was given under duress, threat, or fear, or that his plea was taken by anything other than his own free will, and denied Trotters motion. After obtaining a certificate of probable cause, Trotter filed the present appeal.
DISCUSSION
I. Governing Law and Standard of Appellate Review
Section 1018, governing the withdrawal of guilty pleas, 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." A showing of good cause under this standard must be supported by clear and convincing evidence. (People v. Sandoval (2006) 140 Cal.App.4th 111, 123 (Sandoval); People v. Weaver (2004) 118 Cal.App.4th 131, 145; People v. Wharton (1991) 53 Cal.3d 522, 585.) " "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 defendants free judgment include inadvertence, fraud or duress. [Citations.]" [Citation.] "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."" (Sandoval, at p. 123; People v. Cruz (1974) 12 Cal.3d 562, 566; People v. Wharton, at p. 585.)
""When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] On appeal, the trial courts decision will be upheld unless there is a clear showing of abuse of discretion. [Citations.]" [Citation.] "Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged."" (Sandoval, supra, 140 Cal.App.4th at p. 123; People v. Holmes (2004) 32 Cal.4th 432, 442-443; In re Brown (1973) 9 Cal.3d 679, 685; see also People v. Urfer (1979) 94 Cal.App.3d 887, 893, fn. 6, citing Blackledge v. Allison (1977) 431 U.S. 63.) "Moreover, a reviewing court must adopt the trial courts factual findings if substantial evidence supports them." (People v. Fairbanks (1997) 16 Cal.4th 1223, 1254.)
Nevertheless, it is " settled in this state that where on account of duress, fraud, or other fact overreaching the free will and judgment of a defendant he is deprived of the right of a trial on the merits, the court . . . may . . . if a properly supported motion is seasonably made, grant him the privilege of withdrawing his plea of guilty and of reassuming the situation occupied by him before plea of any kind was entered. [Citation.] In other words, as stated in People v. Miller [(1896)] 114 Cal. 10, 16 . . . , "the law seeks no unfair advantage over a defendant, but is watchful to see that the proceedings under which his life or liberty is at stake shall be fairly and impartially conducted. It holds in contemplation his natural distress, and is considerate in viewing the motives which may influence him to take one or another course. Therefore it will permit a plea of guilty to be withdrawn, if it fairly appears that defendant was . . . unduly and improperly influenced, either by hope or fear, in the making of it."" (People v. Dena (1972) 25 Cal.App.3d 1001, 1012, quoting People v. Campos (1935) 3 Cal.2d 15, 17.)
II. Ibarra Inquiry for Package-Deal Plea Bargains
Trotters plea was a so-called "package-deal" plea bargain, in which "the prosecutor offers a defendant the opportunity to plead guilty to a lesser charge, and receive a lesser sentence, contingent upon a guilty plea by all codefendants." (In re Ibarra (1983) 34 Cal.3d 277, 286 (Ibarra), disapproved on other grounds in People v. Howard (1992) 1 Cal.4th 1132, 1175-1178.) In Ibarra, the California Supreme Court rejected the notion that a package-deal plea is inherently coercive. (Ibarra, at pp. 283-284, 286-287.) It explained that normally a court may properly rely on a validly executed waiver form in determining the voluntariness of a guilty plea. (Ibarra, at p. 281.) However, "when a defendant pleads guilty pursuant to a package-deal arrangement, the trial court has a duty to conduct further inquiry into the voluntariness of the plea: although such a bargain is not per se coercive, it may be so under a totality of the circumstances." (Ibarra, at pp. 281-282.)
Under Ibarra, the trial court must make a series of inquiries. First, it "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 prosecutors business. [Citation.] The prosecutor may also have a reasonable and good faith case against the third parties to whom leniency is promised. [¶] Second, the factual basis for the guilty plea must be considered. If the guilty plea is not supported by the evidence, it is less likely that the plea was the product of the accuseds free will. The same would be true if the bargained-for sentence were disproportionate to the accuseds culpability. [¶] 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. [T]he voluntariness of a plea bargain which contemplates special concessions to another — especially a sibling or a loved one — bears particular scrutiny by a trial or reviewing court conscious of the psychological pressures upon an accused such a situation creates. [Citation.] If the defendant bears no special relationship to the third party promised leniency, he may nevertheless feel compelled to plead guilty due to physical threat. For example, if the third party had made a specific threat against defendant if he refused to plead guilty, the plea is likely to be involuntary. On the other hand, if the defendant merely thought . . . that his codefendant would attack him if he did not plead guilty, sufficient coercive factors may not be at play. [¶] 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 pp. 288-290.)
Ibarra makes clear that these factors are not exclusive; that other factors, such as the defendants age, that may be relevant can and should be taken into account. (Ibarra, supra, 34 Cal.3d at p. 290.) The court also emphasized that a guilty plea under a package-deal plea bargain will not be set aside merely because the trial court failed to undertake the aforementioned totality of the circumstances inquiry. (Id. at p. 290, fn. 6.) Rather, the defendant must show the error prejudicial; i.e. he "must allege and prove that his plea of guilty was involuntary under the [Ibarra standards] . . . and should not have been accepted by the trial court." (Id. at p. 290.)
III. Analysis
Addressing each of the Ibarra factors, Trotter contends that his package plea was coerced; that he presented evidence his judgment was overcome by his desire to help his codefendants and fear he would be harmed by Mancha and his cohorts in the holding cell. As we explain, the evidence presented by Trotter as to threats and coercion made to Trotter by his codefendant supported an order by the trial court permitting Trotter to withdraw his plea. Assessing the evidence compels us to conclude the court abused its discretion in finding the evidence did not rise to the level of clear and convincing evidence that Trotter was operating under duress or fear that overcame the exercise of his free judgment. Accordingly, we reverse the judgment and direct the trial court to permit Trotter to withdraw his guilty plea.
Ibarra holds that a "plea is likely to be involuntary" if it is compelled by physical threat. (Ibarra, supra, 34 Cal.3d at p. 289; Sandoval, supra, 140 Cal.App.4th at p. 126.) Trotter argues he experienced a high degree of coercion; that he felt "psychologically pressured to plead guilty so that he could avoid being injured or killed by Mancha and his cohorts in prison." He points to the fact he was the sole African-American in a holding cell with numerous Hispanics, as well as Barness testimony, in which Barnes stated he took Manchas comments to Trotter in the holding cell as a threat. These circumstances justified withdrawal of Trotters plea on the basis of the uncontested evidence of threats made to him by Mancha and his fear of retribution in prison.
The trial court did not acknowledge the unrebutted evidence of the physical threats made to Trotter by his codefendant during the course of negotiating the package plea. As stated, the direct evidence from Trotter and also from his codefendant Barnes was never challenged or contested. This evidence, combined with Trotters consistent refusal to enter a plea until after he had been threatened, his emotional reaction during sentencing, and the fact he raised the issue with his counsel at his first opportunity after the hearing, constitutes clear and convincing evidence that duress or psychological pressure induced Trotters guilty plea. In declining to find coercion, the trial court, apparently unversed in the story of David and Goliath, reasoned that Trotter was physically larger than his codefendants, so he could "handle himself" in jail. We cannot agree, however, that the physical size of a defendant should be a dispositive factor in eliminating a finding of coercion or duress. Denial of Trotters request on this basis demonstrated that the trial failed to fairly consider the significance of these threats on Trotters decision to enter a plea, and in that way it acted unreasonably and arbitrarily. The evidence of Trotters emotional condition and other circumstances surrounding his plea, as well as the uncontested testimony amounts to clear and convincing evidence of a physical threat or psychological pressure sufficient to overcome Trotters will and render Trotters plea involuntary.
We are thus compelled to reverse the judgment on grounds the court clearly abused its discretion. Our decision is supported by Sandoval, supra, 140 Cal.App.4th 111. In Sandoval, we reversed a judgment on evidence the defendants guilty plea was involuntary where the trial court had found it "was sure [a codefendant] had threatened [the defendant] Sandoval immediately before Sandoval changed his mind and agreed to plead guilty," and the record contained ample evidence to support its finding. (Sandoval, at p. 126.) Specifically, the record showed the defendant had been firm in his insistence on going to trial for nearly a year, but changed his mind only after a brief conversation with the codefendant in which the codefendant said, " [I]f you dont sign this deal, Im going to get [your] ass in prison." and admitted "[b]asically" threatening the defendants life. (Id. at pp. 121, 126.) The trial court in Sandoval found that immediately after making the threat, the codefendant told his attorney about both his threat and defendants response, and the defendant told his attorney he wished to withdraw his plea the day after its entry. (Id. at p. 126.) We concluded the defendant presented evidence he had taken the threat seriously, including via testimony from his counsel that he told her he feared he would be physically harmed if he did not enter into the plea and evidence that Sandoval knew the codefendant had been accused of organizing an attack on another inmate. (Ibid.) Our holding that the defendants plea was the product of coercion was also based upon a trial court finding that the defendant pleaded guilty partly out of a desire to act in his fellow gang members best interests, as well as evidence of the trial courts coercive involvement in his plea negotiations. (Id. at pp. 126-127.) Under those circumstances, we held the trial court abused its discretion in refusing to allow the defendant to withdraw his guilty plea. (Id. at p. 127.)
Here, as in Sandoval, the unrebutted evidence reflected that Trotter was physically threatened by one of his codefendants, causing him to change his long held decision not to enter any plea. Like Sandoval, Trotter brought the threats and pressure to his counsels attention at his first opportunity after entry of the plea. On this evidence, the court had no other reasonable choice but to conclude that Trotters plea was the "product of coercion" (Sandoval, supra, 140 Cal.App.4th at p. 127); that Manchas comments caused Trotter to feel unduly pressured and threatened and that Trotter decided to plead guilty as a result of such threats. Because the trial court abused its discretion in refusing to permit Trotter to withdraw his guilty plea, we reverse the judgment.
DISPOSITION
The judgment is reversed and the matter remanded with directions that the trial court grant Trotters motion to withdraw his guilty plea.
I Concur:
HUFFMAN, Acting P. J.
I.
INTRODUCTION
I agree with the majority that the judgment in this case must be reversed and that Trotter must be allowed to withdraw his guilty plea. However, I believe this court should review Trotters claim of error de novo, not under an abuse of discretion standard of review. While a number of California cases, including an opinion I recently authored, on which the majority relies (People v. Sandoval (2006) 140 Cal.App.4th 111 (Sandoval)), suggest that the abuse of discretion standard of review applies to review of the denial of all motions to withdraw a guilty plea, I am unaware of any California case that has expressly considered the proper standard of review to apply in reviewing a ruling on a motion to withdraw a guilty plea where the essence of the claim on appeal is that the plea was involuntary. It is now clear to me that under these circumstances this court must review the voluntariness of the plea de novo, since a claim that a plea was involuntary necessarily implicates the voluntariness of the appellants waiver of fundamental constitutional rights. It is not within a trial courts discretion to deny a request to withdraw a guilty plea if the plea was involuntary.
An appellate court must defer to a trial courts factual findings regarding the circumstances surrounding the plea if the findings are supported by substantial evidence, but the ultimate question whether the plea was voluntary must be reviewed de novo. While the abuse of discretion standard of review applies to review of a trial courts refusal to allow a defendant to withdraw an otherwise voluntarily entered plea, in my view, the majority errs in failing to determine de novo the threshold question whether Trotters plea was in fact voluntary.
II.
DISCUSSION
Where an appeal of the denial of a motion to withdraw a guilty plea implicates the voluntariness of the plea, review of that issue must be de novo
A. Courts have failed to distinguish between cases in which the motion to withdraw a plea challenges the voluntariness of the plea from cases in which the voluntariness of the plea is not at issue
In cases that involve a claim that the trial court erred in denying a motion to withdraw a guilty plea, the California Supreme Court, and a number of Courts of Appeal, have frequently recited, axiomatically, that whether to grant or deny a motion to withdraw a guilty plea is within the trial courts discretion, and that the trial courts decision is reviewed for an abuse of discretion. (E.g., People v. Fairbank (1997) 16 Cal.4th 1223, 1254; People v. Wharton (1991) 53 Cal.3d 522, 585; In re Brown (1973) 9 Cal.3d 679, 685, quoting People v. Francis (1954) 42 Cal.2d 335, 338; Sandoval, supra, 140 Cal.App.4th at p. 123.)
Sandoval is an example of a case in which the court did not focus on the issue of the appropriate standard of review. In Sandoval, the defendant filed a motion to withdraw his guilty plea on the ground that his plea had not been a product of his own free will. Specifically, Sandoval claimed that one of his codefendants had threatened him with physical violence if he refused to plead guilty pursuant to a package deal, and that the trial judge had improperly pressured him to plead guilty. (Sandoval, supra, 140 Cal.App.4th at p. 121.) The trial court denied Sandovals motion to withdraw his guilty plea. (Id. at p. 122.)
On appeal, Sandoval claimed that the trial court had abused its discretion in denying his motion to withdraw his guilty plea because the plea was not voluntary. (Sandoval, supra, 140 Cal.App.4th at p. 115.) With respect to the legal principles governing consideration of a defendants motion to withdraw a guilty plea, this court stated:
"`A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. [Citations.] "[Penal Code] [s]ection 1018 provides that . . . 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. Good cause must be shown for such a withdrawal, based on clear and convincing evidence. [Citation.]" [Citations.] "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 defendants free judgment include inadvertence, fraud or duress. [Citations.]" [Citation.] "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.]
"`"When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] On appeal, the trial courts decision will be upheld unless there is a clear showing of abuse of discretion. [Citations.]" [Citation.] "Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged." [Citation.]" (Sandoval, supra, 140 Cal.App.4th at p. 123, quoting People v. Weaver (2004) 118 Cal.App.4th 131, 145-146, italics added.))
In Sandoval, as in this case, the parties framed the issue on appeal as whether the trial court had abused its discretion in denying the appellants motion to withdraw his guilty plea. Sandoval did not specifically claim that because his plea was involuntary, his waiver of his constitutional rights was invalid, and did not argue that review of the trial courts finding that his plea was voluntary should be de novo. Noting that there was abundant evidence that Sandovals guilty plea was the product of coercion in that Sandoval had steadfastly insisted on going to trial over a period of nearly a year, and that he changed his mind only after a codefendant threatened his life and the trial court had put additional pressure on him to plead guilty, this court concluded that the trial court had abused its discretion in refusing to allow Sandoval to withdraw his guilty plea. (Sandoval, supra, 140 Cal.App.4th at p. 127.)
Perhaps because it was clear in Sandoval that the guilty plea was involuntary, and thus, that the trial courts ruling had to be reversed under any standard of review, the opinion did not discuss the issue further. I now find myself in the somewhat awkward position of having to disagree with the statement in Sandoval that sets out the applicable standard of review. However, "A [wo]man should never be ashamed to own [s]he has been in the wrong, which is but saying, in other words, that [s]he is wiser today than [s]he was yesterday." (Jonathan Swift, Thoughts on Various Subjects (1711).) After further consideration, I am now of the view that in an appeal of a denial of a motion to withdraw a guilty plea where the essential claim on appeal is that the plea was coerced, the appellate court must look beyond the procedural posture of the issue as raised to the substance of the claim, and determine de novo whether the plea was or was not voluntary. If the plea is determined to have been involuntary, the defendant must be allowed to withdraw it.
B. An appellate court must review de novo any claim that a guilty plea was not voluntary
A guilty plea involves a waiver of fundamental federal constitutional rights, including the right to trial by jury, the right to confront and cross-examine witnesses, and the right not to incriminate oneself. (See People v. Collins (2001) 26 Cal.4th 297, 307-308 (Collins).) Any waiver of "the fundamental constitutional rights that accompany a trial must be knowing, intelligent and voluntary." (Collins, supra, 26 Cal.4th at p. 308, citing Boykin v. Alabama (1969) 395 U.S. 238, 242 (Boykin), People v. Tahl (1969) 1 Cal.3d 122, 131-134.) In Collins, the California Supreme Court defined the concepts of "knowing," "intelligent," and "voluntary," in the context of a defendants waiver of the right to a jury trial:
"As with the waiver required of several other constitutional rights that long have been recognized as fundamental, a defendants waiver of the right to jury trial may not be accepted by the court unless it is knowing and intelligent, that is, "made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it, "as well as voluntary "in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." [Citation.]" (Collins, supra, 26 Cal.4th at p. 305, italics added.)
"`[C]ourts [must] indulge every reasonable presumption against waiver of fundamental constitutional rights. [Citations.]" (Johnson v. Zerbst (1938) 304 U.S. 458, 464.)
Federal courts routinely state that the ultimate question of the voluntariness of a plea is a question of law, reviewed de novo. (E.g., U.S. v. Dixon (6th Cir. 2007) 479 F.3d 431, 434 ["The issue of whether a plea was knowing, voluntary, and intelligent is a legal question that this Court reviews de novo"]; U.S. v. Gaither (9th Cir. 2001) 245 F.3d 1064, 1068 ["We review whether a plea was given voluntarily de novo"]; U.S. v. Smith (8th Cir. 2005) 422 F.3d 715, 724, ["Whether [defendants] plea was knowing and voluntary is a mixed question of law and fact that is reviewed de novo"].) However, the underlying questions of fact regarding the circumstances of a plea are reviewed deferentially. (E.g., U.S. v. Dixon, supra, 479 F.3d at p. 434 ["underlying factual bases relied upon by the district court are reviewed for clear error"]; U.S. v. Kaczynski (9th Cir. 2001) 239 F.3d 1108, 1114 ["It goes without saying that a plea must be voluntary to be constitutional. We review whether it was de novo, [citation], and the district courts findings for clear error"].)
While there are a number of California cases in which courts have stated that a trial courts denial of a motion to withdraw a guilty plea is reviewed for an abuse of discretion (see part II, ante), I have found no California case, and the majority cites none, that directly addresses the question of the applicable standard of review when the basis of the motion to withdraw a guilty plea is that the plea was involuntary. "`The question of an effective waiver of a federal constitutional right in a proceeding is of course governed by federal standards." (People v. Howard (1992) 1 Cal.4th 1132, 1175, quoting Boykin, supra, 395 U.S. at p. 243.) Because a plea of guilty necessarily involves a waiver of fundamental federal constitutional rights, it is clearly improper to apply an abuse of discretion standard in reviewing the voluntariness of a plea.
California case law, properly interpreted, is in accord with these federal cases. The California Supreme Court has held that "[t]he voluntariness of a waiver is a question of law which appellate courts review de novo." (People v. Panizzon (1996) 13 Cal.4th 68, 80 (Panizzon). Further, the California Supreme Court has observed, "[t]he compulsory forces that may be present in a confession are sufficiently similar to those in a guilty plea to warrant the application of similar principles in each." (In re Ibarra (1983) 34 Cal.3d 277, 288, fn. 4, disapproved on another ground in Howard, supra, 1 Cal.4th at pp. 1175-1178.) It is well established that the ultimate legal question as to the voluntariness of a confession, like other mixed questions of law and fact, is reviewed de novo. (E.g., People v. Benson (1990) 52 Cal.3d 754, 779 ["On appeal, the determination of a trial court as to the ultimate issue of the voluntariness of a confession is reviewed independently in light of the record in its entirety"] while the trial courts ["findings as to the circumstances surrounding the confession . . . are . . . subject to review for substantial evidence"]; cf. People v. Ramos (2004) 34 Cal.4th 505 [appellate court reviews trial courts factual findings on motion to suppress under deferential substantial-evidence standard, while the trial courts application of law to facts is a mixed question of law and fact that is subject to independent review].)
Thus, where the essential claim in a motion to withdraw a guilty plea is that the plea was involuntary, the voluntariness of the plea is a question of law subject to independent or de novo review, while the underlying questions of historical fact regarding the circumstances of the plea are subject to the deferential substantial evidence standard of review. In contrast, where there is a request to "withdraw[]" an otherwise voluntarily entered plea, the reviewing court should apply the abuse of discretion standard of review to a claim that the trial court erred in exercising its statutorily authorized discretion (Pen. Code, § 1018). (Cf. U.S. v. Smith (8th Cir. 2005) 422 F.3d 715, 723-724 [abuse of discretion of standard of review applies to trial courts ruling on whether to allow defendant to withdraw a plea under "fair and just" standard in Federal Rules of Criminal Procedure, while de novo review applies to determination of voluntariness of plea]; U.S. v. Black (10th Cir. 2000) 201 F.3d 1296, 1300 ["Although we engage in de novo review of the question of whether the plea was knowing and voluntary, [citation], we review the district courts denial of the motion to withdraw the guilty plea for an abuse of discretion"].)
The essence of Trotters claim on appeal is that his guilty plea was the result of a threat or threats made by his codefendants, and that the plea was thus involuntary. Because Trotter challenges the voluntariness of his guilty plea, this court should review the trial courts findings of fact related to the circumstances surrounding Trotters plea under the deferential substantial evidence standard, but should review de novo the question whether the plea was voluntary.
III.
CONCLUSION
Under our system of justice, a criminal defendant must not be pressured or coerced to waive his constitutional rights and plead guilty. A guilty plea must be "`"the product of a free and deliberate choice rather than intimidation [or] coercion,"" (Collins, supra, 26 Cal.4th at p. 305, quoting Colorado v. Spring (1987) 479 U.S. 564, 573). A court should not go to great lengths to try to salvage a guilty plea when, as here, the circumstances surrounding the plea indicate that the plea was, at least in part, the product of coercion. On the contrary, a court must "`indulge every reasonable presumption against waiver of fundamental constitutional rights." (Zerbst, supra, 304 U.S. at p. 464.)
By all accounts, Trotter was adamant that he wanted to go to trial until he was threatened by codefendant Mancha. He was extremely reluctant to plead guilty, and was visibly upset and "very emotional," on the morning he entered his guilty plea. One cannot read the transcript of Trotters guilty plea and, indulging every reasonable presumption against waiver of fundamental constitutional rights, conclude that Trotter pled guilty of his own free will, free from intimidation or coercion. The testimony presented at the hearing on the motion to withdraw the plea corroborating both the threats made against Trotter and Trotters state of mind on the day of the plea, supports this conclusion.
I agree with the majority that Trotter must be allowed to withdraw his guilty plea. However, I would reach this holding by applying a de novo standard of review and concluding that Trotters guilty plea was not voluntary.