Opinion
D073033
09-18-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHN JAY ROACH, Defendant and Appellant.
Kent D. Young, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Seth Friedman and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD268542) APPEAL from a judgment of the Superior Court of San Diego County, Kenneth K. So, Judge. Affirmed. Kent D. Young, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Seth Friedman and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
John Jay Roach entered into a plea agreement in which he pleaded guilty to one count of burglary of an inhabited dwelling (Pen. Code, §§ 459, 460, subd. (a)). Roach also admitted two serious felony prior convictions (§ 667, subd. (a)(1)) and one strike prior (§ 667, subds. (b)-(i)). The parties stipulated to a 14-year term in prison as part of the plea agreement.
All further statutory references are to the Penal Code unless otherwise specified.
Prior to sentencing Roach moved to withdraw his guilty plea. After trial counsel was removed following a Marsden hearing, new counsel was appointed and a motion to withdraw the plea was heard. Following three hearings on the motion, the court denied it. Thereafter a fourth hearing took place in which Roach represented himself. The court again denied the motion. The court sentenced Roach to a 14-year term as anticipated by the plea agreement.
People v. Marsden (1970) 2 Cal.3d 118.
Roach obtained a certificate of probable cause and now appeals the denial of his motion to withdraw his guilty plea.
On the day prior to Roach's guilty plea, the prosecutor sent defense counsel an e-mail indicating one of the prosecution witnesses had been arrested and would be arraigned on a felony charge. In his motion to withdraw his plea, Roach contended he did not know of the arrest and would not have pleaded guilty if he had known of it before pleading. Defense counsel did not recall if he told Roach of the arrest.
On appeal, Roach contends the trial court abused its discretion in denying his motion, because he pleaded ignorance of an important fact which would have impeached the witness. He also argues defense counsel was ineffective and that the prosecutor violated his right to due process in failing to provide more detail regarding police contact with the victim, although the latter contention was withdrawn by defense counsel in the trial court.
Brady v. Maryland (1963) 373 U.S. 83 (Brady).
After reviewing the record, we are satisfied Roach did not meet his burden of showing good cause to withdraw the plea by clear and convincing evidence. Impliedly the trial court rejected testimony from defense counsel that he did not recall informing Roach of the prosecutor's e-mail.
STATEMENT OF FACTS
Since Roach pleaded guilty prior to the preliminary hearing, we take the facts from the probation officer's report.
Roach and three other men burglarized the apartment where the victim was staying. The four men gathered outside the apartment "stacked up like SWAT team members." When the victim, who was home with her eight-year-old son, answered the door, one of the men (who she recognized as a friend of her roommate's) distracted the victim by asking to charge his phone.
When the victim agreed and turned her back, Roach and the others rushed in and ran to the roommate's bedroom. They eventually left, taking with them a box containing methamphetamine and women's jewelry.
Roach was found by police hiding with one of the other men in a riverbed, lying on top of some stolen property. Roach denied any involvement in the burglary, claiming it was "a case of mistaken identity."
DISCUSSION
The day before the scheduled preliminary hearing, the prosecutor sent an e-mail to defense counsel informing him that the victim and two others, were to be arraigned on felony charges. The e-mail stated in part: "Their arraignment is scheduled today. I have asked the narcotics deputy to request OAC so that there would not be a conflict with any of you. I do not intend to call any of these individuals at the preliminary hearing tomorrow and will be proceeding by Prop 115. I have discussed this information with Dana Griesen and it does not change our offers. [¶] If you need any additional information prior to the preliminary hearing tomorrow please let me know and I will get it to you asap."
The crux of this appeal is that Roach contends he would not have pleaded guilty if he had known of the charges against the victim. Defense counsel could not recall when he learned of the victim's arrest or if he discussed it with Roach prior to his plea. Counsel also testified he kept detailed records of all activities relating to the case, however, he intentionally did not review his notes prior to testifying.
The trial court later found Roach had been properly advised by experienced counsel but had changed his mind prior to sentencing.
A. Motion to Withdraw the Plea
At the first hearing, defense counsel testified that Roach's interest in a guilty plea was motivated by his age (over 60) and his desire not to die in prison. Roach was facing a potential sentence of 37 years to life in prison. Roach had advised counsel that he went to the victim's house that day because the victim's roommate "had ripped off or had some drugs that belonged to someone else in the group."
Counsel could not recall when he learned of the victim's arrest and could not state whether the information would have changed his decisionmaking regarding the offered plea bargain.
Roach testified he did not know of the victim's arrest prior to his plea. He said he wanted to take the case to trial, but defense counsel did not do the investigation Roach thought was needed and that counsel pressured him to plead guilty. Roach did say he wanted the victim and her boyfriend investigated because of their involvement in another home invasion robbery and regarding the victim's "heroin connection."
Counsel also contended at the first hearing that the prosecutor violated Brady by not informing the defense of the arrest of the "eye witness." However, at the second hearing counsel acknowledged the e-mail and indicated he was not pursuing the Brady issue any further.
Given that counsel withdrew the Brady issue in the trial court, we are puzzled as to why the issue is now being pursued on appeal. In any event, we will explain below that we find the claim of due process violation to be without merit. --------
At the second hearing counsel stated that prior counsel did not believe any further investigation was necessary because, in his opinion, the arrest did not change "the likely or potential outcome of the matter." In response, the court stated: "Well, [Roach] essentially knew what happened at the time he entered his plea. So, what changed? What has changed? Why isn't this just remorse of taking a plea?"
Defense counsel's response to the court was that Roach wanted to go to trial and wanted additional investigation of the victim, but that prior counsel would not listen.
The court denied the motion to withdraw the guilty plea.
After the second hearing, Roach was allowed to represent himself. At a third hearing Roach agreed with the court that his claim was that his first counsel had not fully investigated his case. The court continued the matter and ordered transcripts of prior counsel's testimony to further evaluate Roach's claims.
At the final hearing, Roach asked the court to reconsider his motion and to allow him to withdraw his plea. The court denied the motion again finding defense counsel had reasonably exercised his professional judgment.
B. Legal Principles
A defendant may move to set aside a guilty plea prior to sentencing. (§ 1018.) In order to justify relief the defendant must show, by clear and convincing evidence, that there is good cause to grant the motion. Good cause includes a showing of ignorance, fraud, duress or any other factor that overcomes the defendant's exercise of judgment. (People v. Cruz (1974) 12 Cal.3d 562, 566; People v. Breslin (2012) 205 Cal.App.4th 1409, 1416.)
We review a trial court's decision to grant or deny a motion to withdraw a guilty plea under the abuse of discretion standard of review. (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796.) We presume the trial court understood and properly applied the law, absent an affirmative showing to the contrary by the defendant. (People v. Coddington (2000) 23 Cal.4th 529, 644.)
Discovery of evidence which might weaken the prosecution's case does not necessarily render a plea involuntary. (See People v. Grand (1971) 16 Cal.App.3d 27, 32; People v. Breslin, supra, 205 Cal.App.4th at p. 1417.)
In People v. Ramirez (2006) 141 Cal.App.4th 1501 (Ramirez), the defendant moved to withdraw his plea based on the discovery of evidence in the prosecutor's possession, that tended to show the defendant was not involved in the commission of the crime. The court found the evidence, improperly withheld by the prosecution cast the case against the defendant "in an entirely different light." (Id. at pp. 1507-1508.) Here, of course, the prosecutor did not withhold any information and timely notified all counsel prior to the scheduled preliminary hearing. In Ramirez, the withheld evidence was directly exculpatory, but the material here was collateral to the case and held only limited impeachment value.
Roach also relies on People v. Patterson (2017) 2 Cal.5th 885, 894 (Patterson), for the proposition that the trial court here applied the wrong standard in ruling on the motion to withdraw the plea. Patterson did not address the issues raised in this case. Patterson dealt with a motion under section 1016.5 to vacate a plea because the defendant was not aware of the immigration consequences. The court discussed the case law applicable to the statutory provision which allows pleas to be vacated where the defendant was not made aware of the immigration consequences of the guilty plea. The court did not address or change the standards established for motions brought under section 1018. The court's analysis in Patterson does not implicate the trial court's ruling on the motion under section 1018.
C. Analysis
Roach raises three arguments in support of his claim the trial court's decision should be set aside. First, he contends he pleaded guilty while ignorant of essential facts regarding his defense. Second, he contends his original counsel was ineffective because he failed to inform Roach of the impeaching material regarding the eye witness. Finally, he contends the prosecutor failed to comply with the requirements of Brady and thus denied him due process. We will reject each contention.
1. Ignorance of the Impeachment Evidence
Roach argues that it is undisputed that he was unaware of potential impeachment evidence when he entered his guilty plea. We disagree. First, original defense counsel, who was vague about discussions with Roach, testified without reviewing his detailed notes of all actions in the case. The trial court found Roach was properly advised by experienced counsel and was attempting to change his plea because he had changed his mind.
The record shows Roach was aware of possible drug activity by the eye witness and contended he knew her heroin connection. Roach testified he had asked counsel to investigate the victim's drug activities. Indeed, Roach told defense counsel he had entered the apartment that day because the witness's roommate had ripped off drugs belonging to one of the members of the group with which Roach entered the apartment.
Roach had the burden of proving the facts giving rise to good cause to withdraw the plea by clear and convincing evidence. (People v. Cruz, supra, 12 Cal.3d at p. 566.) It is apparent from the trial court's comments that it did not accept the defense counsel's inability to "recall" whether he discussed the new "evidence" with Roach as proof that counsel did not discuss it.
Defense counsel did say that the plea by Roach was not motivated by issues regarding the witness. Roach, in his 60's did not want to die in prison, which could have likely been the case with a 37-year-to-life sentence if he was convicted with his criminal history.
In short, the trial court could well have disbelieved the testimony from Roach and his original defense counsel. Testimony about an inability to "recall" if new evidence was discussed could have been rejected by the trial court where counsel, who had detailed notes available, intentionally did not look at the notes prior to testifying about his conversations with Roach. Roach has not met his burden of proof to show good cause based on the alleged failure of counsel to discuss new impeachment evidence.
2. Ineffective Assistance of Counsel
Roach contends his original defense counsel was ineffective because he failed to advise Roach of the fact of arrest of the witness and that counsel did not undertake an investigation of the witness's arrest. Once again, Roach bears the burden of proof on this issue. Although he continues to argue it is undisputed he was not told of the arrest prior to his plea, we have previously rejected that contention. Regarding an alleged failure to investigate the record it is unclear as to what counsel did with the information and does not provide us with a basis to find counsel acted improperly or that Roach was prejudiced.
When a defendant contends he or she was denied the Sixth Amendment right to effective assistance of counsel, the defendant bears the burden to show counsel's performance was inadequate and that the error caused the defendant prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 688, 692; Lee v. United States (2017) ___ U.S. ___ [137 S.Ct. 1958, 1964]; People v. Vines (2011) 51 Cal.4th 830, 875-876.)
It is difficult to establish ineffective assistance of counsel on direct appeal from a conviction. Trial counsel have substantial discretion in how they defend a criminal case. Where there is an alleged omission the appellate record is often inadequate to explain why the omission occurred and what is the prejudice to the defendant from such omission. (People v. Vines, supra, 51 Cal.4th at pp. 875-876; People v. Seaton (2001) 26 Cal.4th 598, 643.)
The record shows the case was set for a preliminary hearing. The day prior to the hearing, the prosecutor sent all counsel the e-mail we have previously discussed regarding the arraignment of the witness and two other people. On the day of the preliminary hearing, and before evidence was taken, Roach entered into a plea bargain that greatly reduced his potential exposure to custody. The record is unclear as to what happened between Roach and his counsel before that plea. We do know the trial court found trial counsel properly and professionally represented Roach prior to the plea. Implicit in the court's finding is that the court did not accept Roach's testimony that he was not informed of the new event.
Defense counsel did make clear that his client's principal interest was to avoid the draconian sentence he faced based on the charges. Roach had told counsel he and his cohorts entered the apartment to recover drugs. Roach testified he knew the witness had been involved somehow with drugs. Counsel was also aware that there was an independent witness who saw the men lined up like SWAT to enter the apartment. Roach was apprehended by police, with one of the accomplices hiding in a riverbed lying on top of some of the stolen property.
We cannot determine from this record why counsel did not delay the plea and investigate further. Of course, we do not know how the plea agreement came about or whether the prosecutor would have continued the offer. It is unclear whether the arrest and charge for child endangerment, based on heroin found on the floor would give rise to admissible impeachment evidence. Competent counsel could reasonably have concluded the plea deal was very beneficial and that the "impeachment evidence" would not likely produce a better result for the client. Roach has failed to meet his burden of showing ineffective assistance of counsel. His remedy, if any, is by way of a petition for writ of habeas corpus which might further develop the facts. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.)
3. Due Process
Finally, Roach contends the prosecution violated the principles of Brady, supra, 373 U.S. 83, by failing to adequately inform the defense of the details of the arrest of the victim for child endangerment. At the outset we observe that defense counsel specifically abandoned any claim of Brady violation on the second day of hearings. Not surprisingly, there was no further development of this "issue" in the trial court. As a direct consequence of withdrawing the issue, there is utterly nothing in this record to support a claim the prosecution failed to comply with Brady or that Roach was prejudiced.
First, the disclosure was made the day before the scheduled preliminary hearing for all of the defendants. The text of the prosecutor's e-mail indicates she just learned the persons involved were to be arraigned, and that she did not intend to use them at the preliminary hearing. The prosecutor invited counsel to contact her for more information. We have no idea what happened after that, except, for whatever reason, Roach entered into a plea agreement prior to the scheduled preliminary hearing.
This silent record provides no insight as to what, if any, other information was available to the prosecutor, or what was done with any such information. We do know the defense was provided with the case numbers and the nature of the charges involved, after that we have no idea what happened.
The fact that replacement defense counsel specifically withdrew the Brady issue might provide a hint to the reader that the defense did not need any further information and perceived no basis for a claim of due process violation. On appeal, Roach has the burden to prove a Brady violation. In any event, principles of due process, under the Fourteenth Amendment do not require pre-plea disclosure of impeachment evidence. (United States v. Ruiz (2002) 536 U.S. 622, 633.) However, even if such disclosure is required in California, the record before us clearly demonstrates that the impeachment evidence at issue here was brought to the attention of defense counsel before the plea took place. (In re Miranda (2008) 43 Cal.4th 541, 581-582 [indicating the application of Brady to pre-plea disclosure of impeachment evidence is an open question].)
In sum, the abandonment of the Brady issue before the trial court and the failure to present a record, which informs this court of what actually happened, leads us to conclude Roach has failed to meet his burden of proof on the question of any alleged violation of the Brady requirements.
If there are any potential merits to this contention it will have to await development by a petition for writ of habeas corpus in the trial court.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: O'ROURKE, J. IRION, J.