Opinion
A155243
03-09-2020
THE PEOPLE, Plaintiff and Respondent, v. MARVIN JAKE WARE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC080434)
Defendant Marvin Ware pleaded no contest to murder (Pen. Code, § 187, subd. (a)) and attempted murder (§§ 664, 187, subd. (a)) in exchange for a sentence of 60 years to life in state prison. About two months later Ware filed a motion to withdraw his plea on the ground that he entered it under the mistaken belief that he was eligible for the California Youthful Offender Program (CYOP) under section 3051. The trial court denied the motion after an evidentiary hearing, and the sole issue before us is the denial of the motion to withdraw plea. Because Ware fails to show an abuse of discretion by the trial court, we affirm.
All statutory references are to the Penal Code.
Section 3051, subdivisions (a) and (b), provide for parole hearings to review the suitability for parole for certain prisoners who were 25 years of age or younger at the time of their offense. Ware was 24 years old at the time his offenses were committed.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Facts
Our summary of the facts underlying the attempted murder and murder charges to which Ware pleaded no contest is drawn from the probation report prepared after Ware entered the plea.
As to attempted murder: On September 30, 2012, Ware and two codefendants followed rival gang members and fired shots at their vehicle, striking one victim in the head and the other victim in the shoulder. Investigators concluded that the victim shot in the shoulder had been the target of the shooting. Later that evening, defendant and his codefendants were "seen on social media photos celebrating the shooting of the victim."
As to the murder: On January 26, 2013, Lamont Coleman, a confidential informant, was shot and killed. He had provided information to the police about the location where Ware kept a gun in his residence. Subsequent investigation, including jail calls and text messages between Ware (who was "conspiring the murder of victim Coleman from inside of the jail") and other gang members established they had conspired to murder Coleman. B. Indictment and Initial Plea
On April 8, 2014, Ware and 10 others were charged in a 43-count amended indictment. Fifteen of the counts were alleged against Ware, including murder (count 43) and attempted murder (count 6).
Additional allegations were attached to each count. As relevant here, the murder (count 43) was alleged to have been committed with special circumstances of lying in wait and for the purpose of furthering the activities of a criminal street gang in which Ware was an active member. (§ 190.2, subd. (a)(15) & (22).) The indictment also alleged that the murder was for the benefit of a criminal street gang (§ 186.22, subd. (b)); that for the benefit of a criminal street gang, Ware or another principal personally or intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (d), (e)); that Ware had a prior strike (§ 1170.12, subd. (c)(1)); that he had been convicted of a prior serious felony (§ 667, subd. (a)), and that he had served a prior prison term (§ 667.5, subd. (b)).
The attempted murder (count 6), was alleged to have been committed with premeditation and deliberation (§ 189), and was alleged with attendant gang and firearm allegations (§§ 186.22, subd. (b); 12022.53, subds. (d), (e).)
On December 8, 2014, Ware entered a plea of not guilty to all counts. C. February 2018 Change of Plea Hearing
The first day of Ware's trial was February 5, 2018. Two days later, on February 7, before the trial court had reviewed and heard all the motions in limine and before jury selection began, Ware pleaded no contest to first degree murder and attempted murder (counts 43 and 6, respectively); admitted he acted in furtherance of a criminal street gang; and admitted a prior strike. In exchange, the remaining charges and allegations were dismissed, and Ware was to be sentenced to 60 years to life in state prison (25 years to life on the murder conviction, doubled to 50 years on account of the prior strike; and the low term of 5 years on the attempted murder charge, doubled to 10 years for the prior strike).
Before the hearing, Ware had completed a plea form in which he stated that he recognized that by making his plea, he would give up his right to a jury trial and other constitutional rights. At the hearing, the court advised Ware of his rights. Ware answered "no" to the court's question whether anyone had made any "promise in order to get [him] to give up these rights."
Then this colloquy occurred regarding section 3051:
"THE COURT: Sir, do you understand that by the language set forth in Penal Code section 3051, the youth parole statute, that in the court's opinion you are excluded from consideration of early parole under that statute? And that should not be a component or deemed to be any promise made or indication in order to get you to enter this plea. Do you understand that?
"THE DEFENDANT: Can you repeat that?
"THE COURT: Let me try it in better terms because I didn't say it very clearly.
"3051 of the Penal Code is a recent Penal Code addition that allows the Department of Corrections and Board of Parole to consider early parole for certain defendants who are committed to the Department of Corrections who commit their offense when they are 25 years of age or younger.
"In my review of that statute, you would not qualify. You are excluded from consideration because of two factors. First, the fact that this sentence exceeds any sentence that that statute considers. That statute by its terms applies to defendants that are sentenced to sentences of 25 years to life or less. It does not by its terms include defendants who are sentenced to terms of 25 years or more, and you are going to be sentenced to a term in excess of 25 years.
"In this court's opinion, that is a factor that excludes you from consideration of early consideration for parole as a youthful offender, although you were 25 years - you were under 25 years of age when this offense was committed.
"The second factor that I believe excludes you from consideration of early consideration for parole under that statute is that you are admitting an allegation pursuant to 1170.12 of the Penal Code, and that statute specifically sets forth that defendants who admit an allegation under 1170.12 subsections B through H inclusive are excluded from consideration for early parole as a youthful offender. Do you understand that?
"([Discussion held off the record between [Ware and Jonathan McDougall, Ware's appointed attorney, who had represented him since 2013].)
"THE DEFENDANT: Yes.
"THE COURT: Mr. McDougall do you join in your client's waiver?
"MR. MCDOUGALL: Yes. I do want to join on that issue and not to muddy the waters. I specifically addressed with Mr. Ware that there are no guarantees - that this plea is not conditioned on him waiving any rights to youthful offender should that law change
"THE COURT: That is true.
"MR. MCDOUGALL: - that would allow him to be eligible.
"THE COURT: That is a true statement.
"MR. MCDOUGALL: With that in mind, he has accepted the plea, and I would join in that waiver.
"THE COURT: I find the defendant has made a free, knowing and intelligent waiver of his constitutional rights, order that the [change of plea] form be filed."
Ware then entered his no contest pleas. C. April 2018 Motion to Withdraw Plea
About ten weeks later, in April 2018, Ware was represented by a different attorney in filing a motion to withdraw his plea. The basis for his motion was that when he entered the plea in February, he "did not understand the consequences of doing so due to a series of confusing and misleading communications he had with his attorney" about his eligibility for CYOP. The motion was accompanied by a declaration from Ware.
The district attorney opposed the motion, and argued that Ware's declaration should not be considered unless Ware submitted himself to cross-examination. D. May 2018 Hearing on Motion to Withdraw Plea
In May 2018, the court held a hearing on the motion to withdraw plea, with attorney Christopher Varnell specially representing Ware. Because the district attorney was not willing to give up the right to cross examine Ware, the court said it "has not and will not" consider Ware's declaration in connection with the motion. Ware and attorney McDougall then testified at the hearing and were cross-examined.
1. Ware's Testimony
Ware testified that when he entered the no contest plea on February 7, he believed he was eligible for CYOP, based on what he had been told by Jonathan McDougall, who had been his appointed attorney for about five years, and by a consultant, "Mr. Carbone," and based on documents he had been given by McDougall on the morning of February 7.
Dates are in 2018 unless otherwise stated.
Ware testified that on January 31, he met with Carbone, who told him about CYOP and told him that he was eligible for the program. Carbone told him that if he took the plea deal of 60 years to life, under CYOP he would be eligible for parole in about 20 years from the date of the change of plea, taking into account custody credit.
Ware testified that on February 4, McDougall told him that he was eligible for CYOP, that he should take the plea offer, and that there was no way he would win in trial. Ware questioned McDougall about the 60 years to life offer and why it was so high. McDougall said he would meet with the district attorney and try to have the time reduced, but that was the offer.
Ware testified that on the night of February 5, McDougall met with him and told him it was the district attorney's position that Ware did not qualify for CYOP. McDougall also told Ware that he "hundred percent still qualified."
On February 6, Ware was back in court. According to Ware, after the attorneys spoke with the judge in chambers, McDougall then came to him and told him "that the DA didn't think I qualified and that the judge might not think I qualify but his [McDougall's] opinion still stays the same that I do qualify" for CYOP. Also on February 6 Ware fainted in a holding cell before a court session. He denied telling McDougall that he had faked the fainting spell.
On the morning of February 7, McDougall met with Ware, and brought two separate documents. These exhibits were marked as Exhibits A and B, respectively, and were admitted into evidence. Ware testified that he read Exhibits A and B carefully, and acknowledged that both documents refer to "proposed legislation." Ware denied that at the time he entered his no contest plea he was aware that he would not qualify for CYOP unless the law was changed. He testified that McDougall told him that he qualified for the youth offender program, and the law had been passed and is "getting worked out."
Exhibit B is a letter dated August 31, 2017 that bears the logo of the Legislative Analyst's Office. (See http://lao.ca.gov, last visited on March 9, 2020, describing the office as "The California Legislature's Nonpartisan Fiscal and Policy Advisor.") The first paragraph of the letter reads, "Pursuant to Elections Code 9005, we have reviewed the proposed statutory initiative regarding hearings to determine whether to release certain individuals from prison (A.G. File No.17-0009)." The letter appears to be from "Mac Taylor, Legislative Analyst," and "Michael Cohen, Director of Finance," and is addressed to the attention of "Ashley Johansson, Initiative Coordinator" at the Attorney General's office in Sacramento. When Ware received it from McDougall, portions pertaining to second strikers being eligible for CYOP were highlighted. According to Ware, when McDougall discussed Exhibit B with him, he said "this is the reason that he believed that I qualify for Youth Offender Program, and if there was any problems with me not qualifying, this would be the reason I would qualify in the future."
Exhibit A, the other paper that McDougall handed Ware on the morning of February 7, bears the time stamp "2/7/18 8:20 a.m.," which appears to be when it was printed. Like Exhibit B, it has highlighting that was on the document when Ware received it. Ware said McDougall told him that the significance of the document was that it showed "why I qualify and will qualify in the future if there was any problems with me—my qualification now."
The document appears to be a printout from http://www.lao.ca.gov/BallotAnalysis/Initiative/2017-009.
Ware testified that McDougall left a plea form with him on the morning of February 7, and told him to sign it before McDougall returned. McDougall said if Ware signed the paper, he would show it to the district attorney to demonstrate Ware was willing to "take the deal and to put it—they can put it back on the table" and McDougall would try to "get me a better deal but he can't guarantee anything." Ware testified that he had the change of plea form for two or three hours before he signed it, that he read it and went over it with McDougall, who read it out loud to him. He did not notice any reference in the plea form to promises that he would be eligible for CYOP.
At some point on February 7 Ware was taken back to court and appeared in front of Judge Novak, the same judge who would later hear the motion to withdraw the plea that is at issue on appeal. Ware admitted that at the February 7 hearing he was told by the trial judge that the court's opinion was that he did not qualify for CYOP, and Ware knew that was the district attorney's position as well, but his lawyer gave him "the opposite opinion" and he believed his lawyer. Asked, "when you were told that by the court, did anything happen between you and Mr. McDougall," Ware replied, "I kind of—I looked at Mr. McDougall and kind of asked him what's going on, what should I say or what should I do, and he kind of gave me a thumbs up and like it's all okay, like, you know, this is I guess what's supposed to happen." In response to the follow-up question, "As you were speaking, you were kind of nodding your head. What exactly did Mr. McDougall do?" Ware answered that "he actually he went just like this, like with his hands. And when I looked at him like what's going on, he nodded his head up and down like yes." Based on that interaction, Ware "felt like [McDougall] was in my corner and that he is telling me I apply [sic] for the youth offender."
The trial court announced at the beginning of the evidentiary hearing on the motion to withdraw plea that it had the transcript of the February 7 change of plea hearing.
Ware testified that he began having questions about eligibility for parole after he entered his plea and spoke with his mother.
2. McDougall's Testimony
McDougall, Ware's trial attorney, testified that after reviewing all the evidence, he determined that "the prosecution had a substantial amount of evidence" against Ware. Ware's codefendants had reached plea agreements or cooperation agreements; then, over a period of several months before the scheduled trial date, the prosecution gave McDougall three days of recorded interviews with one of the codefendants, Ware's former girlfriend Nina Cragg, "particularly pinpointing Mr. Ware's involvement, interpretation of jail phone calls as well as his involvement in a number of the charged crimes." In McDougall's view, Cragg's statement "substantially" strengthened the prosecution's case. Until the January 12 pretrial conference, McDougall understood there was no plea offer from the district attorney's office, and that it was the district attorney's position that Ware would have to present an offer before a plea agreement was considered. At some point, there was a discussion with the court in which the prosecution indicated the possibility of something other than a sentence of life without parole, specifically, 60 years to life, after which McDougall had discussions with Ware about the possibility of pleas. McDougall then engaged Carbone to "determine how Mr. Ware would be handled by parole with a 60-to-life sentence."
Until about January 31, McDougall thought that Ware might be eligible for CYOP, and told Ware that he might be eligible "but we had to take a look at his prior strike." McDougall then did further research and came to the opinion that Ware was not eligible for CYOP.
On January 31, Carbone met with Ware, and debriefed McDougall. McDougall spoke with Ware that same day. Ware and McDougall discussed McDougall's opinion that the prior strike made him ineligible for CYOP, and as a result, McDougall approached the district attorney's office asking for a sentence that would not require admission of a prior strike, but the district attorney refused. McDougall then explained to Ware that the prosecution would not accept a plea without the admission of a prior strike, and that the district attorney had researched CYOP and specifically did not want Ware to be eligible for it.
McDougall testified that on the night of February 4, Ware was undecided about taking a deal or going to trial, and wanted more time to decide what to do. McDougall "was hoping and attempting to give him as much time as I could." McDougall discussed the option of a Marsden motion, and the possibility of Ware representing himself in an attempt to delay the proceedings so he would have more time to consider the offer.
On the morning of February 5, the first day of trial, there was a hearing on Ware's Marsden motion, which was denied. McDougall was prepared to try the case, but Ware sought more time to consider the plea deal through February 5 and into February 6. Also on February 5, McDougall became aware of the possibility of a change in the law that in the future might allow Ware to be eligible for CYOP even with his strike. McDougall explained to Ware that he was not eligible for CYOP, and that it would require a change in the law for Ware to become eligible. McDougall testified that from February 5 through the change of plea he made it clear to Ware that Ware did not qualify for CYOP at the time of the plea.
On February 5, after the Marsden motion was denied, McDougall asked to take the rest of the court day off and return the next morning, on account of Ware not feeling well, McDougall's desire to review some of the papers filed by the district attorney, and McDougall's desire to continue discussing the trial with Ware. The court granted the request.
McDougall testified that on February 6, Ware indicated to him that he would take the plea deal but needed a few more minutes. The sheriffs gave Ware some additional time in the holding area, and then as Ware was standing up to walk to the courtroom, he fell. McDougall testified, "It didn't appear to me that it was fake or not genuine. I left and the sheriffs responded and I was told they were going to bring him to the medical ward." After about two hours, Ware returned, and said he was not willing to take the plea, and that was reported in open court.
McDougall testified that during the February 7 proceedings leading up to Ware's change of plea, he did nothing to communicate to Ware that he was eligible for CYOP. He explained, "I never nodded my head. I never did a thumbs up. I would never do a thumbs up in open court to a client." He also testified that none of the courtroom discussions he had with Ware during the plea hearing had anything to do with Ware's eligibility for the youth offender program. And he testified that after the plea was entered, the sheriff allowed Ware and McDougall to sit in the jury box to discuss some issues related to the plea, at which point Ware volunteered that on February 6 "he had faked his passing out because he needed more time."
3. Ruling
The trial court took judicial notice of the transcript of the February 7 change of plea hearing, and after hearing argument from counsel, denied Ware's motion. The court found that at the February 7 hearing "Mr. Ware understood and communicated his understanding of the status of the law and that he doesn't qualify for the relief [under section 3051] as the law stands now," and concluding that Ware made his plea "in an intelligent manner with the solid advice of counsel with all issues related to the California Youth Offender Program addressed and sufficiently explained." The trial court elaborated:
"I think even Mr. Ware's testimony corroborates Mr. McDougall's testimony in this hearing that Mr. McDougall provided him with proposed legislation and . . . it would never rise to the level in my opinion of clear and convincing evidence for someone to say that based upon proposed changes, that that was sufficient evidence to warrant withdrawing a plea.
"After I asked Mr. Ware if he understood that 3051 did not apply to him because of his admission of the strike, I asked Mr. McDougall if he joined in his client's waiver. That immediately followed the explanation of the basis for Mr. Ware's lack of eligibility in which the court quoted portions of 3051 of the Penal Code, and Mr. McDougall stated yes, he joined in his client's waiver.
"So there is no question in my mind that Mr. McDougall adequately apprised Mr. Ware of the present status of the law, and the further discussion that Mr. McDougall memorialized on the record was that by virtue of entering this plea, Mr. Ware did not give up any right to potentially be eligible in the future should the law change."
Ware timely filed a notice of appeal, and a request for a certificate of probable cause, which was granted.
DISCUSSION
A. Applicable Law
Section 1018 states in pertinent part, "On application of the defendant at any time before judgment . . . the court may . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. . . . This section shall be liberally construed to effect these objects and to promote justice."
"To prevail on a motion to withdraw a guilty plea, a defendant must establish good cause by clear and convincing evidence." (People v. Perez (2015) 233 Cal.App.4th 736, 741 (Perez).) " 'Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.]' " (Ibid., quoting People v. Cruz (1974) 12 Cal.3d 562, 566.) "We distinguish 'involuntary' from 'unwilling' acceptance of counsel's advice; it is 'involuntary' if done without choice or against one's will, unwillingly done if through only reluctance." (People v. Knight (1987) 194 Cal.App.3d 337, 344.)
"A decision to deny a motion to withdraw a guilty plea ' "rests in the sound discretion of the trial court" ' and is final unless the defendant can show a clear abuse of that discretion." (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) "Moreover, a reviewing court must adopt the trial court's factual findings if substantial evidence supports them." (Ibid.) "In ruling on a motion to withdraw a plea, the trial court may take into account the defendant's credibility and his or her interest in the outcome of the proceedings. [Citation.] We will defer to a trial court's credibility determinations that are supported by substantial evidence." (People v. Dillard (2017) 8 Cal.App.5th 657, 665 (Dillard).) B. Analysis
The trial court concluded that Ware's no-contest plea was not the result of mistake or confusion about the applicability of section 3051. The only evidence Ware offered to prove that he was mistaken or confused about the applicability of section 3051 is his own testimony, including his statement that in his mind, the documents he received from his attorney, which referred to "proposed" legislation, supported his belief that he was eligible for youthful offender parole. The trial court implicitly found that Ware's testimony on those issues was not credible, and substantial evidence supports that finding (see Dillard, supra, 8 Cal.App.5th at p. 665), including the plea form that Ware signed, the record of the February 7 change of plea hearing, and McDougall's testimony at the plea withdrawal hearing.
To begin, Ware had signed a plea form in which he stated that he was not induced to plead no contest "by any promise or representation of a lesser sentence, probation, reward, immunity or anything else except" a sentence of 60 years to life.
Further, at the February 7 hearing, the court explained to Ware in some detail that he did not qualify for early parole under CYOP. Ware stated that he understood. And Ware answered "no" to the trial court's question whether he had been promised anything other than dismissal of the remaining charges and allegations and a sentence of 60 years to life. Also, McDougall expressly stated that he had explained to Ware that he was not giving up any right to youthful offender parole if the law changed, and the trial court agreed that was correct.
In addition, McDougall's testimony at the plea withdrawal hearing directly contradicted Ware's testimony that McDougall told him he qualified for the youth offender program and that McDougall nodded and gave him a thumbs up during the plea colloquy. (People v. Hunt (1985) 174 Cal.App.3d 95, 104 [where evidence is contradictory or supports conflicting inferences, the trial court may resolve the conflict against appellant; "it is the reviewing court's duty to adopt the [inference] supporting the challenged order"].)
Ware argues for the first time on appeal that apart from his supposed misunderstanding of his eligibility for youth offender parole, he was under "incredible stress" at the time the plea was entered, which overcame the exercise of his free judgment. As evidence of this stress, he cites his testimony that he was "stressed out" when his lawyer recommended that he take the plea deal instead of going to trial, and that he faked his fainting spell to gain more time: "Appellant was so unsure of whether to accept the plea deal that he faked a fainting spell to gain more time."
This argument is unpersuasive. Although it is appellant's burden to show good cause to withdraw his plea by clear and convincing evidence (Perez, supra, 233 Cal.App.4th at p. 741), Ware points to"[n]othing in the record [that] indicates he was any under any more or less pressure than every other defendant faced with serious felony charges and the offer of a plea bargain." (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208 [holding trial court did not err in denying motion to withdraw no contest plea].) Further, the cases he cites to support his argument are inapt: in none of them was stress about whether to accept a plea found to overcome the exercise of appellant's free judgment. Particularly inapt is People v. Urfer (1979) 94 Cal.App.3d 887, which Ware quotes in arguing that "[t]he evidence of the stress under which appellant was operating is a 'factor overreaching [his] free and clear judgment' [citation to Urfer, supra, at p. 892] and thus justified the granting of his motion." In Urfer, the Court of Appeal affirmed the trial court's denial of defendant's motion to withdraw his guilty plea. (Id. at p. 894.) The Court of Appeal observed that even if a defendant is "reluctant or 'unwilling' to change his plea [to guilty], such state of mind is not synonymous with an involuntary act. Lawyers . . . often persuade clients to act upon advice which is unwillingly or reluctantly accepted. And the fact that such advice is unwillingly or reluctantly acted upon is not a '. . . factor overreaching defendant's free and clear judgment' . . . ." (Id. at p. 892, fn. omitted, italics added.) Finally, in conceding that he faked his fainting spell, Ware admits that he testified falsely at the motion hearing, where he stated that he truly lost consciousness, thus casting doubt on his credibility with respect to his stress.
We conclude that Ware has not shown the trial court abused its discretion in denying his motion to withdraw his no contest pleas.
DISPOSITION
The trial court order denying Ware's motion to withdraw his plea is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.