Opinion
C086754
09-26-2019
THE PEOPLE, Plaintiff and Respondent, v. KRISTOPHER URIAH SCOTT, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. NCR93480 & 16CR000389)
In this consolidated appeal, defendant Kristopher Uriah Scott appeals two judgments simultaneously entered after his guilty and no contest pleas, revocation of probation, and sentence to local prison for violations of driving under the influence of alcohol. Defendant complains the trial court erred in refusing his request to withdraw his plea in case No. 16CR000389 (16CR389), premised upon the discovery of new exculpatory evidence, to wit, that another person had been driving the car at the time of the accident. He further seeks a correction of his custody credits in case No. 16CR389, with which the People concur. We will modify the judgment to correct the custody credits awarded and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In case No. NCR93480, defendant pleaded guilty to one count of driving a vehicle with a blood-alcohol content at or above 0.08 percent in violation of Vehicle Code section 23152, subdivision (b) and admitted to two prior convictions within the meaning of sections 23540 and 23546. In exchange, the trial court suspended his sentence and ordered defendant to serve five years of probation. The remaining counts and special allegations were dismissed.
Undesignated statutory references are to the Vehicle Code.
Thereafter, the People petitioned to revoke defendant's probation in case No. NCR93480 based upon defendant's conduct as alleged in case No. 16CR389. The information in case No. 16CR389 alleged that on or about September 10, 2016, defendant committed felony driving of a vehicle under the influence of alcohol (§ 23152, subd. (a)—count one), felony driving of a vehicle with a blood-alcohol content at or above 0.08 percent (§ 23152, subd. (b)—count two), and misdemeanor possession of a device for smoking a controlled substance (Health & Saf. Code, § 11364, subd. (a)—count three). The information also alleged as to counts one and two that defendant had suffered three prior convictions (§ 23550) and had a blood-alcohol content percentage equal to or exceeding 0.15 percent (§ 23578).
On March 24, 2017, defendant pleaded guilty to count two, admitted the special allegation of having suffered three prior convictions, and admitted the probation violation in case No. NCR93480. However, on May 11, 2017, the trial court rejected the proposed disposition that had not included any jail time, and defendant was allowed to withdraw his pleas. On July 7, 2017, and in the midst of confirming defendant's new guilty pleas, his attorney expressed a doubt concerning defendant's competency and proceedings were suspended pursuant to Penal Code section 1368. Proceedings were reinstated after the trial court found defendant competent to stand trial.
Thereafter, on January 11, 2018, defendant pleaded no contest to count one and admitted the special allegation of having suffered three prior convictions, as well as the probation violation in case No. NCR93480 stemming from the same conduct. Defendant faced up to three years in state prison on the new charge, and an additional year based on the old case. The parties stipulated that the factual basis for the plea was Red Bluff Police Department report No. 16-3198. This report was summarized in the presentencing probation report, which indicated that an eyewitness saw defendant drive his car into a center concrete divider. Defendant asked that witness to help with his car given that he was drunk and feared arrest. The witness instead called authorities. Defendant told responding officers that "he was on his way to his mother's house from Taco Bell." The responding officer's preliminary alcohol screening device registered defendant's blood-alcohol content at 0.229 percent. The court accepted the plea and dismissed all remaining counts and allegations.
Thereafter, on March 9, 2018, the trial court denied defendant's motion to withdraw his plea and request for probation and sentenced him in both cases. The court sentenced defendant in case No. 16CR389 to the upper term of three years—18 months to be served in local prison followed by 18 months of mandatory supervision. In case No. NCR93480, the court imposed a one-year county jail term to be served concurrently to the time in case No. 16CR389. Defendant received 45 days of presentence custody credit (23 days actual, 22 days conduct) in case No. NCR93480 and one day of custody credit in case No. 16CR389. He filed timely notices of appeal, and this court granted defendant's request to amend the notices to include a request for a certificate of probable cause, which was granted by the trial court on October 16, 2018.
DISCUSSION
1.0 Defendant's Motion to Withdraw His Plea
Defendant contends the trial court abused its discretion in denying his motion to withdraw his plea supported by a declaration from a third party who claimed to have been driving the car instead of defendant. Defendant argues because he was unaware of this exculpatory evidence at the time he entered the plea, it was not knowing, free, or voluntary. We disagree.
1.1 The Trial Court's Ruling
The trial court denied defendant's motion to withdraw his plea finding defendant had not presented clear and convincing evidence justifying that relief. In fact, the court noted, "there [wasn't] any evidence that [defendant] was not exercising his free judgment when he entered his plea." Defendant had been represented by counsel, was highly intelligent, and had previously entered a guilty plea in the case. The court further determined the declaration from the would-be driver (Dave Carroll) "completely lacks credibility." The case had been pending for over 18 months, and there was no explanation for Carroll appearing at that late time. If defendant had been with Carroll at the casino as he stated in the declaration, defendant would have so indicated. Instead, defendant told authorities he was at the casino with his mother. The court also noted inconsistencies with Carroll's description and the probation report, as well as defendant's inculpatory statements to an eyewitness who saw defendant driving the car. The court refused to allow defendant to offer testimony on the issue and denied the motion.
We note the trial court was mistaken when it chided Carroll for inaccurately describing the incident as the car hitting a center divider. The street lamp incident referenced by the trial court was actually the drunk driving accident that had resulted in defendant's probation in case No. NCR93480, which was also described in the probation report.
1.2 The Applicable Law
"A guilty plea may be withdrawn any time before judgment for good cause shown. (Pen. Code, § 1018; [citation].)" (People v. Hunt (1985) 174 Cal.App.3d 95, 102, accord, People v. Cruz (1974) 12 Cal.3d 562, 565.) "Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.] But good cause must be shown by clear and convincing evidence." (Cruz, at p. 566; Hunt, at p. 103.) "Grant or denial of a motion [to withdraw] lies within the trial court's sound discretion after consideration of all factors necessary to effectuate a just result; a reviewing court will not disturb its decision unless abuse is clearly demonstrated." (Hunt, at p. 103.) "Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged." (Ibid.) "[A] reviewing court must adopt the trial court's factual findings if substantial evidence supports them." (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
1.3 Application
With these guidelines in mind, we find the trial court did not abuse its discretion in denying defendant's request to withdraw his pleas. It was defendant's burden to demonstrate by clear and convincing evidence that his motion to withdraw resulted from "mistake, ignorance, or any other factor overcoming the exercise of his or her free judgment, including inadvertence, fraud, or duress." (People v. Breslin (2012) 205 Cal.App.4th 1409, 1416 (Breslin).) He failed to do that. Substantial evidence instead supports the trial court's finding that the Carroll declaration was not credible and thus did not amount to clear and convincing evidence justifying the withdrawal of defendant's pleas.
We find Breslin, supra, 205 Cal.App.4th 1409 instructive. There, the defendant sought to withdraw her guilty plea following the victim's recantation. (Id. at pp. 1414-1415.) The Breslin defendant did not know of the victim's recantation at the time of the guilty plea, and in fact, the victim did not recant to authorities until after that plea was accepted. (Id. at p. 1414.) However, the trial court determined the timing of the recantation was suspect, and the appellate court affirmed the trial court's decision to view the recantation with skepticism. (Id. at pp. 1417-1418.) While the court recognized that the result could be different "if there were actually persuasive, independent evidence the victim had committed perjury or if the prosecution had withheld critical evidence," it "emphasize[d] that there [was] good reason to believe the victim's new account was the product of latent misgivings about [the defendant] facing criminal punishment." (Id. at p. 1418.) Thus, the court was within it's discretion in determining the defendant had not provided "clear and convincing evidence to show that she entered her guilty plea under mistake, ignorance, or any other factor overcoming her exercise of free judgment." (Ibid.)
Here, we share the trial court's skepticism concerning Carroll's declaration that he, and not defendant, had been driving the car on the night in question. First, the timing of the declaration is suspect, coming nearly a year and a half into defendant's legal proceedings and following no less than three attempts by defendant to plead guilty to the underlying charges. Nor did Carroll appear to give testimony at the hearing on the motion to set aside the plea or explain in his declaration his delay in coming forward. Further, Carroll's declaration was contradicted by an eyewitness who established defendant was driving the car. Assuming, arguendo, defendant was telling the truth when he argued he was unable to identify Carroll prior to his plea because he was an "unknown third party witness who had not come forward" and that defendant did not recall the events of September 16, 2016, this does not explain why defendant failed to mention another driver at the scene that night in his inculpatory statements to an eyewitness or to the responding officer. While we acknowledge the trial court's factual error in stating that Carroll's description of a collision with the center divider was inaccurate, on the whole, we do not find this inaccuracy dispositive.
We further note that defendant failed to attest to these facts in a supporting declaration, simply arguing them in the points and authorities of his motion without actually providing supporting evidence thereof.
As in Breslin, it might be a different matter if there were actually persuasive, independent evidence that a third party committed the crimes at issue. However, here, we find no such evidence. We are not persuaded that People v. Ramirez (2006) 141 Cal.App.4th 1501 requires a different result given the aforementioned issues with the exculpatory evidence, which was not known to and thus not withheld by the prosecution.
We further find the trial court did not abuse its discretion in denying defendant's request to testify at the hearing. Given defendant's claimed amnesia and inculpatory statements at the scene, there is nothing he could have said that would have eliminated the problems with Carroll's declaration. --------
2.0 The Custody Credits
As noted, the court awarded 45 days of presentence credit in case No. NCR93480 and one day of presentence custody credit in case No. 16CR389. Defendant argues he is entitled to dual custody credit for his time following his remand to custody by the trial court on Friday, February 16, 2018, until he was sentenced in both case Nos. NCR93480 and 16CR389 on March 8, 2018. He was remanded because, while he claimed he had reported to probation to initiate the presentencing report process for the previously mentioned cases, probation had not received a referral for a report as of his sentencing hearing. Defendant argues that because the revocation of his probation in case No. NCR93480 was premised solely upon the unlawful conduct alleged in case No. 16CR389, he is entitled to dual credit. The People agree defendant is entitled to 41 days presentence custody credit in both cases: 21 days of custody credit and 20 days of conduct credit.
We concur that dual credits should have been awarded because defendant's illicit driving on a single day compromises the only basis for his conviction in both matters for which he received concurrent sentences. (See People v. Bruner (1995) 9 Cal.4th 1178, 1192, 1193-1194 [recognizing a defendant is entitled to dual presentence custody credit where the conduct underlining the term to be credited was the " 'but for' " cause of the earlier restraint in the revocation of probation or parole for which that defendant had already received credit]; People v. Johnson (2007) 150 Cal.App.4th 1467, 1485 [awarding dual presentence credit where defendant's only probation violation was the same conduct at issue in that case].)
DISPOSITION
The judgment is modified to add 41 days of presentence custody credit for case No. 16CR389 for a total of 42 days of presentence custody credit in that matter. The judgment is otherwise affirmed.
/s/_________
Butz, J. We concur: /s/_________
Raye, P.J. /s/_________
Hull, J.