Opinion
C085213
06-26-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES VINCENT DAVIS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F4427)
Defendant James Vincent Davis appeals from the denial of his motion to withdraw his plea. He had pled no contest to four counts of lewd and lascivious acts on a child under 14. After his plea, he was diagnosed with heart failure and ultimately had a stent implanted to increase blood flow. He later moved to withdraw his plea arguing his medical condition had deprived him of the mental and emotional capacity to enter into the plea. The trial court denied the motion, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The parties stipulated to a factual basis in the district attorney's report and the police report. The facts are taken from the probation report's summary of the district attorney's report.
Defendant was friends with the first victim's stepfather and lived with her family. When the victim was six, he took her to a neighbor's house. There, he had her sit between his legs and lean back against him as he touched her hair and rubbed her shoulders.
Another time, while camping, defendant made the victim sit between his legs. The victim, feeling his "private area," jumped up and said she wanted to go swimming. Defendant followed her into the water and kept pulling her toward him while trying to put his legs around her. She could feel he had an erection.
That night, when the victim was sleeping, defendant rubbed her feet and reached up her legs (though not up to her "private area" or under her clothes). As he did, he grinded and humped her feet.
The second victim was 12 years old and lived in the same apartment complex as defendant. While spending the night with defendant's daughter, defendant lifted the victim's shirt and for five minutes rubbed her stomach area and underneath her pants around the belt line.
Another time, while in the pool, defendant lifted the second victim out of the pool by placing his hand palm up between her legs, cupping her. He threw her out of the water and caught her about four times. While doing this, he said, "Do you know what I am doing?"
Defendant pled no contest to four counts of lewd or lascivious acts on a child under 14. In exchange, the remaining counts were dismissed with a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754.
In taking the plea, the trial court asked defendant if he had read the plea form and if he understood everything he had initialed. Defendant said, "Yes, sir" to both. The court asked if defendant understood the charges and defenses available to him. Defendant answered, "Yes." The court then confirmed the terms of the agreement with defendant who responded, "Yes, sir."
The court asked: "And you are thinking clearly about this plea and the consequences of entering it?" Defendant responded, "Yeah." It also asked, "Have you been sick or injured, taken medications, or for any other reason suspect that your judgment could be impaired today?" Defendant said, "No."
Five months later, defendant moved to withdraw his plea, maintaining a medical condition deprived him of the mental and emotional capacity to enter into a voluntary, knowing, and intelligent plea.
A hearing was held, and a treating physician testified that five months before defendant's plea, defendant was found to have an ejection fraction (volume of blood pumped) of only 15 percent (normal being 60 percent or greater), which could lead to oxygenation issues. A month after his plea, defendant was diagnosed with heart failure and chronic respiratory failure with hypoxia, which includes symptoms of fatigue and shortness of breath. The doctor testified it can also affect the brain and thinking process. Asked if it could lead to confusion, the doctor answered, "Theoretically, yes."
On cross, the doctor testified defendant had not appeared confused or shown difficulty understanding what the doctor was saying, nor did defendant appear unable to make decisions. The doctor agreed he had no information regarding defendant's ability to make decisions on the day of his plea.
Defendant testified his medical condition made making decisions about his case difficult. He would forget things and was confused about what was going on. He said the day of his plea he "was not making a clear-headed decision" but at the time, he was not aware of his confusion. He added, "I was talked into something that I didn't want to be talked into because everything was going so fast and I didn't understand what [my attorney] was doing." He also denied reading his plea form or discussing it with his attorney.
His health, however, had improved since getting a stint. He testified he would not have pled but for his condition.
The attorney who represented defendant when he pled provided a declaration that at the time defendant appeared physically less well. Defendant told her he felt troubled, scared, depressed, and confused about how to proceed, which she attributed to the stress of his situation. But after defendant's surgery, defendant appeared more physically fit and engaged. A nurse similarly declared that around the time of the plea, defendant was low energy and "very depressed." Since his surgery, he "appears to be feeling much better" and no longer appears depressed.
The trial court denied the motion. It noted the stress inherent in facing a trial with a potential life sentence. It also noted defendant's former attorney never indicated defendant appeared mentally unable to understand what was required of him to plea. And the doctor did not testify that defendant appeared mentally confused -- only that theoretically his symptoms could lead to confusion.
A Penal Code section 667.61, subdivision (b)(e)(4) enhancement was alleged, which would result in a 15-year-to-life sentence were defendant convicted as to both victims. --------
The trial court also noted its own observations in taking defendant's plea: "defendant answered every question specifically and directly, including if he was thinking clearly or whether he was sick or judgment impaired." The court added: "I discerned nothing from [defendant] at that time . . . which would have indicated to me he was not understanding the plea, the consequences, the plea form or anything else."
The court thereafter imposed a 12-year aggregate term. Defendant obtained a certificate of probable cause.
DISCUSSION
On appeal, defendant challenges the denial of his motion to withdraw his plea. He contends the trial court abused its discretion, arguing he presented uncontested testimony that he lacked mental and emotional capacity to enter into a voluntary, knowing, and intelligent plea due to his medical condition. We disagree.
Any time before judgment, the court may permit the defendant to withdraw a plea for good cause. (Pen. Code, § 1018.) The defendant bears the burden of showing good cause by clear and convincing evidence. (People v. Breslin (2012) 205 Cal.App.4th 1409, 1415-1416.) Good cause exists if the defendant was "operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment," including inadvertence, fraud, or duress. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) He must also show prejudice in that he would not have accepted the plea but for the mistake. (In re Moser (1993) 6 Cal.4th 342, 352.)
On a motion to withdraw, the trial court is the exclusive judge of credibility. (People v. Caruso (1959) 174 Cal.App.2d 624, 636.) It need not "accept and give credence to the affidavits submitted in support of the motion." (Ibid.) Nor must it " 'accept as true the sworn testimony of a witness, even in the absence of evidence contradicting it.' " (Ibid.)
The decision to deny a motion to withdraw is left to the trial court's sound discretion. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) We must adopt the trial court's factual findings if supported by substantial evidence. (Ibid.) And we will not reverse unless defendant demonstrates the trial court exercised its discretion in an "arbitrary, capricious, or patently absurd manner, resulting in a manifest miscarriage of justice." (People v. Shaw (1998) 64 Cal.App.4th 492, 496.)
Here the trial court acted within its discretion in denying the motion. In pleading no contest, defendant represented to the court that he was thinking clearly about the plea and its consequences. He denied being sick or having impaired judgment. And he represented that he had read and understood everything he had initialed in the plea form, had his questions answered, and understood the charges against him.
The doctor testifying in support of defendant's motion could offer only that defendant's condition could cause confusion, depression, and affect his thinking process. The doctor conceded defendant did not appear confused or have difficulty understanding when being seen. And the doctor could offer no information regarding defendant's ability to make decisions the day of the plea.
Similarly, defendant's trial counsel did not indicate defendant appeared unable to understand what was required of him to plea. Further, the trial court, which took defendant's plea, observed defendant had answered specifically and directly to questions regarding whether he was thinking clearly or if his judgment was impaired. The court did not observe anything to indicate impaired judgment.
Against that evidence, defendant's self-serving testimony is insufficient to render the trial court's ruling an abuse of discretion.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, J. We concur: /s/_________
Raye, P. J. /s/_________
Butz, J.