Opinion
D040571.
11-21-2003
THE PEOPLE, Plaintiff and Respondent, v. De SHAUN WEST, Defendant and Appellant.
De Shaun West pled guilty to residential burglary and admitted a prior serious felony conviction and prior strike conviction. He argues he should be allowed to withdraw his plea because (1) the prosecution failed to disclose that a witness essential to establish the case against him had failed to appear at a required court appearance and was still a fugitive; and (2) his counsel was incompetent for failing to discover the witnesss nonappearance. He also asserts he was deprived of due process and effective representation because the trial court did not appoint substitute counsel to represent him at the plea withdrawal hearing. We reject his arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On November 21, 2001, Angela Kail attempted to cash a stolen, forged check at a check cashing store. Police investigation revealed that the check had been stolen from Diane Chens residence during a burglary. Kail told police that West had stolen and forged the check and brought her to the store to cash it. On December 12, 2001, the police arrested West and found a digital video camera stolen from the Chen residence in his vehicle.
West was charged with residential burglary, burglary, forgery, and receiving stolen property, with allegations of prior prison terms, prior serious felony convictions, and prior strike convictions. On March 6, 2002, he pled guilty to one count of residential burglary and admitted one prior serious felony conviction and one prior strike conviction. (Pen. Code, §§ 459, 460, subd. (a), 667, subd. (a)(1), 667, subds. (b)-(i).) The terms of the plea bargain were that the balance of the charges would be dismissed and that he would receive a nine-year sentence (based on the lower term of two years for the burglary, doubled to four years for the prior strike, plus five years for the prior serious felony enhancement). West was advised that the maximum sentence he could have received under his plea was 17 years (based on the upper term of six years for the burglary, doubled to 12 years for the prior strike, plus five years for the prior serious felony). The trial court accepted the plea under People v. West based on Wests representation he was pleading guilty to avoid the more serious consequences of the original charges and allegations.
The information lists six separate prior residential burglary convictions giving rise to the allegations, although the convictions all arose from a single case. The circumstances of the previous burglaries are not set forth in the appellate record, although it appears that they were committed on more than one date.
People v. West (1970) 3 Cal.3d 595.
On May 24, 2002, West moved to withdraw his guilty plea. West had discovered that on March 5, 2002, the day before he entered his guilty plea, Kail (who was charged with burglary and forgery) had failed to appear in court. A bench warrant had been issued for her arrest and she was still a fugitive. West asserted the prosecution should have disclosed during the plea negotiations that its key witness was a fugitive. He submitted a declaration stating he did not commit the burglary and would not have entered the guilty plea had he known Kail was not available to testify. Wests counsel explained to the trial court that he had advised West to take the deal because he could get a life sentence, but this advice was based on Kails anticipated testimony.
The prosecution argued that there was no certainty Kail would not show up or be found and that her nonappearance was not exculpatory evidence that had to be disclosed.
The prosecutor did not claim he was unaware of Kails nonappearance at the time of the plea bargain.
The trial court denied the motion to withdraw the plea, ruling that the witnesss failure to appear was not exculpatory evidence required to be disclosed by the prosecution. The court also noted that West faced a life sentence under the Three Strikes law and with the plea bargain he succeeded in obtaining a nine-year sentence.
DISCUSSION
I. Guilty Plea
West argues that because he entered his guilty plea without knowing that Kail had failed to appear at her court date, he should be allowed to withdraw his plea. He contends that because Kail was the only witness who could prove the burglary charge, he could not make an intelligent choice to plead guilty without the knowledge that Kail had failed to appear. He asserts that (1) the prosecution had a duty under Brady to disclose Kails nonappearance; and (2) defense counsel was incompetent for failing to check whether Kail showed up for her court date the day before West pled guilty.
Brady v. Maryland (1963) 373 U.S. 83.
A.Prosecutions Duty to Disclose
The People assert the issue of the prosecutions duty to disclose is waived on appeal because it was not raised before the trial court. The record does not support this contention.
A trial court may permit a defendant to withdraw a guilty plea before judgment upon a showing of good cause by clear and convincing evidence. (Pen. Code, § 1018; People v. Hunt (1985) 174 Cal.App.3d 95, 102-103.) Good cause may be shown by mistake, ignorance, or some other factor that overcame the defendants exercise of free judgment. (People v. Hunt, supra, 174 Cal.App.3d at p. 103.) We will not disturb a trial courts exercise of discretion to grant or deny a motion to withdraw a guilty plea absent a clear showing of abuse. (Ibid.)
Because a defendant who pleads guilty waives important constitutional rights, the plea must be voluntary and made "knowingly, intelligently, [and] with sufficient awareness of the relevant circumstances and likely consequences." (United States v. Ruiz (2002) 536 U.S. 622, 629, bracketed material in Ruiz.) Accordingly, a defendant must be advised of and waive the no self-incrimination, confrontation, and jury trial rights and must be advised of the direct consequences of the plea. (People v. Lytle (1992) 10 Cal.App.4th 1, 4.) Moreover, under Brady the prosecution is required to disclose exculpatory evidence to all criminal defendants. (United States v. Ruiz, supra, 536 U.S. at p. 628.)
In evaluating the voluntariness of a guilty plea, the United States Supreme Court in Ruiz recognized that "the more information the defendant has, the more aware he is of the likely consequences of a plea, waiver, or decision, and the wiser that decision will likely be." (United States v. Ruiz, supra, 536 U.S. at p. 629.) However, the court also recognized that "the Constitution does not require the prosecutor to share all useful information with the defendant" and in particular does not entitle the defendant to "knowledge of the prosecutions potential case . . . ." (Id. at pp. 629, 630.) The Constitution "does not require [a defendants] complete knowledge of the relevant circumstances, but permits a court to accept a guilty plea . . . despite various forms of misapprehension under which a defendant might labor." (Id. at p. 630.)
The Ruiz court held that prior to a plea bargain, the prosecution need not disclose evidence that might impeach prosecution witnesses, even though such evidence had to be disclosed prior to trial. (United States v. Ruiz, supra, 536 U.S. at pp. 626, 632-633.) The court noted that the exculpatory impact of impeachment evidence operated in a random fashion and an evaluation of the degree to which it might help a defendant depended upon the "defendants own independent knowledge of the prosecutions potential case—a matter the Constitution does not require prosecutors to disclose." (Id. at p. 630.) The court concluded that although disclosure of impeachment evidence was necessary to ensure a fair trial, it was not necessary to ensure a voluntary plea. (Id. at p. 629.)
We reach a similar conclusion here. The fact that a prosecution witness fails to show up for a required court appearance does not necessarily mean the witness will be unavailable at the time of a defendants trial. The witness could be found by the authorities or voluntarily reappear at any point in time, in which case knowledge of the failure to appear is no longer useful to the defendant. The prosecution has no duty to disclose its potential case to the defendant. (See People v. Burgener (2003) 29 Cal.4th 833, 875.) Similarly, the prosecutions duty to disclose exculpatory evidence does not extend to disclosure of difficulties that may arise in the securing of witnesses to present its case.
Contrary to Wests argument, the facts of this case are not comparable to those in People v. Dena (1972) 25 Cal.App.3d 1001, 1009 [withdrawal of plea allowed because prosecution failed to disclose evidence pertinent to intoxication defense] or United States v. Villalobos (9th Cir. 2003) 333 F.3d 1070, 1073-1074 [withdrawal of plea allowed because defendant not given legally required advisement regarding prosecutions burden of proof].) We conclude the trial court properly ruled that the prosecutors failure to inform West about Kails nonappearance did not provide good cause for withdrawal of the plea.
B.Ineffective Assistance of Counsel
This incompetency of counsel issue is raised for the first time on appeal.
Turning to Wests claim his counsel was ineffective for failing to discover Kails nonappearance, he has the burden of showing that counsel failed to act in a manner expected of a reasonably competent attorney and resulting prejudice. (People v. Hunt, supra, 174 Cal.App.3d at pp. 104-105.)
A defendant who is entering a plea is entitled to rely on his counsel to "make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered." (In re Williams (1969) 1 Cal.3d 168, 175; People v. Hunt, supra, 174 Cal.App.3d at p. 105.) The courts recognize that a decision to plead guilty before trial involves difficult judgments and unavoidable uncertainty, and accordingly counsels misjudgment of the strength of the prosecutions case does not, without more, support a claim of ineffective assistance of counsel. (Brady v. United States (1970) 397 U.S. 742, 756-757; In re Alvernaz (1992) 2 Cal.4th 924, 937.)
As already noted, the fact that a prosecution witness fails to appear at a proceeding involves a matter of witness unavailability which can change from one moment to the next. If defense counsel had acquired the information that Kail had failed to appear and based on this information advised West not to accept the otherwise advantageous plea bargain, West ran the risk that Kail would nevertheless be available at his trial and a much harsher penalty imposed after trial. Given its unpredictable nature, the usefulness of the failure to appear information in deciding whether to accept the guilty plea was questionable at best. Defense counsels failure to obtain marginally useful information cannot be deemed to have fallen below a level of reasonable performance. Additionally, Kails testimony was not necessary for the receiving stolen property and forgery charges, leaving West at substantial risk for these felony convictions and the imposition of a sentence of 25 years to life due to his prior strike convictions. Accordingly, we reject Wests argument his counsel provided ineffective assistance.
Moreover, even if, arguendo, competent counsel should have monitored whether Kail appeared at her court date, West has not carried his burden of showing prejudice. To prove prejudice, West must show a reasonable probability that, but for counsels incompetence, he would not have plead guilty. (In re Resendiz (2001) 25 Cal.4th 230, 253.) As we stated, Kail could have appeared at any time, and thus the failure to advise West of her nonappearance did not deprive him of critical information pertinent to his guilty plea because there were no assurances she would be unavailable at the time of his trial. Although West declared that he would not have plead guilty if he knew West had failed to appear, this self-serving statement need not be credited if it is not corroborated independently by objective evidence. (Ibid.) One of the factors to consider in evaluating such a statement is the "disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial . . . ." (Ibid.) Given that West was facing a potential life sentence under the Three Strikes law and achieved a bargain for a nine-year sentence and there were no guarantees Kail would be unavailable, the record does not reasonably support his claim that he would have declined the plea bargain if he knew about Kails failure to appear.
Nor are we persuaded by Wests argument that prejudice is shown because had his counsel known about the failure to appear, counsel might have been able to negotiate a better deal with the prosecution. Particularly given the vagaries of witness availability, this contention is too speculative to establish a reasonable probability of a more favorable outcome. (See People v. Hunt, supra, 174 Cal.App.3d at p. 105.) Indeed, it is possible the prosecution made the offer of a nine-year sentence because of its awareness of the difficulties with securing Kails attendance. Had defense counsel insisted on a better deal, the prosecution could have withdrawn the offer and made a concerted effort to locate Kail with a view to going to trial. Again, both scenarios are pure speculation and we cannot find prejudice by delving into these matters.
II.Representation at the Plea Withdrawal Hearing
Finally, we reject Wests assertion that he was denied due process and effective representation at the plea withdrawal proceeding. West argues it was clear that counsels incompetency should have been included in the grounds to support the motion, but that his counsel, faced with a conflict between his own interests and loyalty to his client, chose to remain silent. West contends it should have been obvious to the trial court that counsels competency was at issue because the prosecution argued at the hearing that defense counsel could have easily examined the court records to discover Kails nonappearance. West asserts the trial court should have recognized the conflict and appointed substitute counsel.
In People v. Smith (1993) 6 Cal.4th 684, the defendant moved to withdraw his guilty plea and filed a Marsden motion to replace the appointed counsel who had represented him during the plea bargain. (People v. Smith, supra, at p. 688.) The trial court denied the motion to substitute counsel and defendant was represented by the same appointed counsel at the motion to withdraw the plea. (Id . at p. 689.) The Supreme Court held that a trial courts determination of whether to appoint substitute counsel to argue a motion to withdraw a guilty plea based on the first appointed counsels incompetency should be governed by the same standard used in all Marsden proceedings—i.e., whether the attorney is providing ineffective representation or whether the defendant and attorney are embroiled in an irreconcilable conflict likely to result in ineffective representation. (People v. Smith, supra, at pp. 694, 696; accord People v. Barnett (1998) 17 Cal.4th 1044, 1112.)
People v. Marsden (1970) 2 Cal.3d 118.
The Supreme Court recognized the obvious potential for conflict which exists when defense attorneys must argue their clients are entitled to relief such as a new trial or withdrawal of a guilty plea because of counsels own incompetence. (People v. Smith, supra, 6 Cal.4th at pp. 690, 694.) However, the court considered the undesirable effect on the administration of justice if each time there is a potential for conflict a new attorney is appointed to review the previous attorneys competence without an adequate showing that such a substitution is necessary. (Id. at pp. 694-696.) The Smith court emphasized that although substitute counsel should be appointed at any stage of the proceedings when necessary to ensure effective representation, this substitution should only occur upon a proper Marsden showing, because "[a] series of attorneys presenting groundless claims of incompetence at public expense, often causing delays to allow substitute counsel to become acquainted with the case, benefits no one." (People v. Smith, supra, at pp. 695-696.)
Here, the record on appeal includes a letter written by West, and considered by the trial court, in conjunction with his request to withdraw his guilty plea. Although in the letter West expresses his dissatisfaction with his attorney for a variety of reasons and states he would like to "let [his counsel] go and take back [his] plea," there is nothing in the letter which suggests West thought counsel was ineffective because counsel did not tell him about Kails nonappearance. The record does not show that a Marsden hearing was held in response to the letter. There is no claim on appeal that the trial court should have conducted a Marsden inquiry or that the letter supports a claim for substitute counsel. We presume any Marsden request for new counsel that may be reflected in the letter was abandoned by the defendant by the time of the plea withdrawal hearing.
Wests letter complains about his counsels failure to allow him (West) to explain a variety of matters to the district attorney, but makes no mention of the issue of Kails nonappearance.
Even though West apparently did not ask the trial court to appoint substitute counsel, West argues that his counsels inadequate representation, and the ensuing need for substitute counsel, was evinced by his counsels failure to raise the issue of his ineffectiveness in the motion to withdraw the plea. His argument suggests that in any case where there is an indication of a possible incompetency issue, and counsel fails to raise the issue, the trial court should appoint substitute counsel because counsels failure to raise the issue shows he or she is not providing adequate representation. However, a trial court is not generally required to initiate a Marsden inquiry on it own motion. (See People v. Lara (2001) 86 Cal.App.4th 139, 150-151.) To impose a duty on the trial court to scrutinize plea withdrawal motions for potential incompetency claims, and then to require the court to assume counsels representation is inadequate because counsel did not raise the issue, creates a scenario inconsistent with the Supreme Courts directives in Smith to avoid a succession of incompetency evaluations absent a proper showing under Marsden. We conclude a trial court need not consider appointment of substitute counsel for a plea withdrawal motion unless the defendant makes such a request. Because no such request was pursued here, Wests argument that he was not adequately represented at the plea withdrawal hearing is unavailing.
DISPOSITION
The judgment is affirmed.
WE CONCUR: OROURKE, J. and McCONNELL, P. J.