PEOPLE v. FRANK

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Robert L. FRANK, Defendant and Appellant.

Cr. 13490.

Decided: February 11, 1982

Quin A. Denvir, State Public Defender, and Jean R. Sternberg, Deputy State Public Defender, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., W. Eric Collins and Dane R. Gillette, Deputy Attys. Gen., for plaintiff and respondent.

Appellant Robert L. Frank raises two contentions on appeal:  the trial court erred in refusing to permit him to withdraw his guilty plea because he was not aware and was not advised of restricted appellate rights, and a plea bargain made in exchange for leniency for a third party is unconstitutional and contrary to public policy.   Frank was originally charged in a six-count information.   He pleaded guilty to three counts of selling amphetamines (Health & Saf.Code, § 11379).   He admitted a factual basis for each count to which he entered a plea.   The remaining counts, soliciting the commission of arson, grand theft, selling a substance in lieu of a controlled substance and possessing a firearm by an ex-felon, were dismissed.   Pursuant to the plea bargain it was agreed Frank could be sentenced no more than three years in state prison.   As part of what was termed a “package deal,” codefendant Rosemarie Starchild was to receive no more than a 90-day sentence.   After a lengthy hearing on circumstances in mitigation, Frank was sentenced to prison for a three-year term.   He obtained a certificate of probable cause and appeals the judgment.

FACTS

Before disposition of the matter by way of plea, the court granted Frank's retained counsel's motion to withdraw and denied Frank's motion to act as co-counsel with his newly appointed counsel.   Thereafter Frank withdrew his plea of not guilty and pleaded guilty to the three violations of Health and Safety Code section 11379.   Before sentencing, Frank substituted new counsel, then requested an evidentiary hearing in order to present mitigating circumstances.   A series of written motions then followed wherein Frank sought to withdraw his guilty plea.

Frank's reasons for his motion to withdraw the guilty plea were:  he was upset at the withdrawal of counsel, he was in pain as the result of a recent arm amputation, he could not think rationally due to medication for the pain, he thought he had a valid entrapment defense, and he entered the plea to avoid the possibility of a long prison term for his codefendant and to avoid losing custody of his children.   The trial court was not persuaded and Frank abandons these arguments on appeal.   The court found he was an active participant in the proceedings and did not appear to be under the influence of drugs at the time.   The court further found Frank had initiated the plea negotiations and any fears he had about Starchild's situation were “self-induced.”   The judge concluded that the plea was free and voluntary and there was overwhelming evidence of Frank's guilt in the preliminary hearing transcript.

The following factual picture is relevant to consideration of the two issues argued in this appeal.

A large portion of Frank's testimony in support of his motion to withdraw the guilty plea related to his relationship to Starchild.   Frank testified he was told unless he pleaded guilty, he had a guaranty that he would do the “max” and never see his children.  (Frank has two children from a prior marriage;  Starchild has one child.)   Further, he was told Starchild would go to prison for four years;  on the other hand, if he would plead guilty, she would only get 90 days in jail and not lose custody of the children.   Thus Frank claimed the only reason he pled guilty was to keep Starchild out of prison and because the children would be taken away if he went to prison for more than three years.

Frank, however, admitted on cross-examination he was not specifically told Starchild would go to prison for four years, rather he was informed by his attorney, Mr. Sandler, that in his opinion Starchild would “likely” be convicted and would “probably” get four years.   The “essence of his understanding” from Sandler was that the kids would not be “messed around with” if he only did three years in prison.

Attorney Sandler testified he had initiated discussions with the prosecutor to explore what alternatives were available with respect to a guilty plea and he had raised Frank's concern about Starchild and the children.   However, there were no threats to take the children nor was there any discussion about what would happen to Starchild should Frank decide to go to trial.   The prosecutor initially felt Starchild should serve one year but he finally agreed to the 90-day recommendation.   Her attorney participated in the final discussions on her plea.

It should be further noted:  Frank (through his counsel) asserted the attorney-client privilege to preclude Sandler from revealing any discussions they had about the plea bargain and its consequences.   Starchild refused to testify without her attorney present.   Frank, by claiming the privilege, precluded examination into the most critical and revealing source for resolution of his contention.   A further witness, probation officer Barbara Miller, testified she prepared the report on Frank.   She was contacted by the prosecutor and advised that a package deal had been worked out with Frank and Starchild.   Nothing was said to her about the children;  she was unaware of any effort to take them from Frank.

At the commencement of mitigation hearing (Apr. 18, 1980), Frank's attorney moved to withdraw and to allow Frank to represent himself.   This motion was granted.   Frank again asked the judge to consider his motion to withdraw the guilty plea.   He claimed it was made “under extreme duress and threats” and again complained at length about the withdrawal of the first retained attorney.   He then stated for the first time he had not been aware, when he entered his guilty plea, it would limit his right to appeal.   Had he known, he would not have pleaded guilty.   The court noted there had been discussions concerning preserving the Penal Code section 1538.5 issues during the guilty plea proceedings but that Frank had not mentioned his desire to appeal on any ground.   The trial court concluded that Frank had not mentioned his desire to appeal on any other ground.   In this fact context, the trial court denied the motion, finding the appeal rights were not a factor in the plea;  again the plea was found to be freely and voluntarily entered.

DISCUSSION

Penal Code section 1018 provides in pertinent part:

“On application of the defendant at any time before judgment the court may, and in the case of a defendant who appeared without counsel at the time of the plea the court must, for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.”

 This section is to be liberally construed to effect these objects and to promote justice.   The granting or denial of the application to withdraw a plea of guilty is within the sound discretion of the trial court after consideration of all of the factors necessary to bring about a just result and the decision of the trial judge will not be disturbed on appeal unless an abuse of discretion is clearly demonstrated.  (In re Brown, 9 Cal.3d 679, 685, 108 Cal.Rptr. 801, 511 P.2d 1153;  People v. Superior Court (Giron), 11 Cal.3d 793, 798, 114 Cal.Rptr. 596, 523 P.2d 636.)   While mistake, ignorance and other factors overcoming the exercise of free judgment are good cause for withdrawal of a guilty plea, the factual base of good cause must be shown by clear and convincing evidence.  (People v. Superior Court (Giron), supra, at p. 797, 114 Cal.Rptr. 596, 523 P.2d 636;  People v. Cruz, 12 Cal.3d 562, 566, 567, 116 Cal.Rptr. 242, 526 P.2d 250.)   In light of these rules, we now examine the various grounds which Frank contends show an abuse of discretion upon the part of the trial court in denying his motions to withdraw his guilty plea.

I

The evidence is clear that Frank was an active participant in the guilty plea proceedings.   In his succeeding motions to withdraw the plea, the various factors upon which he has relied have been of an evolving and enlarging character.   For example, in the first motion, he did not make any contention that he did not understand his appellate rights or that he did not understand the distinction between a general or an unrestricted right to appeal.   Only after he had discharged his lawyer and after he had moved to represent himself and sought reconsideration of the motion did he then complain for the first time that he was unaware of the limits on his ability to appeal and that he wanted to seek review of orders allowing his first-retained attorney to withdraw and denying his motion to act as co-counsel.   While there was some discussion of surviving search issues, in the plea proceedings no mention was made by Frank or his attorney that there were other rulings or motions which he wanted to appeal.   The trial judge after an evidentiary hearing denied the motion to reconsider finding that the appeal rights were not a factor in Frank's plea.

Some few cases have considered the specific contention Frank now makes.   In People v. Waters, 52 Cal.App.3d 323, 125 Cal.Rptr. 46, Waters moved to withdraw his guilty plea, arguing he was not aware of the difference between general and limited appeals.   The court found when Waters pleaded guilty he was only concerned with the appeal of a suppression motion.   No condition had been made or attached to the plea, nor had any promises been made.   Therefore there was substantial albeit conflicting evidence to support the trial judge's conclusion that the defendant had not pleaded guilty due to misrepresentation or misunderstanding of his appeal rights requiring appellate court affirmance.  (Id., at pp. 329–330, 125 Cal.Rptr. 46.)   In a more recent case, People v. Watts, 67 Cal.App.3d 173, 136 Cal.Rptr. 496.   Watts sought to withdraw his guilty plea because he claimed the effect of that plea on his appellate rights had not been explained.   The court concluded that the defendant had not changed his plea in contemplation of the appeal.  (Id., at p. 184, 136 Cal.Rptr. 496.)

In the case at bench there was no hint from Frank when he pleaded guilty that it was done in contemplation of a later appeal.   In fact, it was not until after all other grounds for withdrawing his plea had been rejected that Frank complained about lack of knowledge of his appellate rights.   Further, although Frank contends he was not informed nor knowledgeable of appeal limitations after a guilty plea, he deprives the court of the only factual resource to support his claim by refusing to permit his lawyer to testify.

 Finally, Frank's reliance upon People v. Brown, 18 Cal.App.3d 1052, 96 Cal.Rptr. 476;  People v. Coleman, 72 Cal.App.3d 287, 139 Cal.Rptr. 908, and People v. Lee, 100 Cal.App.3d 715, 161 Cal.Rptr. 162, are inapposite.   These cases involve reversed guilty pleas after the defendant had bargained for a certificate of probable cause to appeal specific issues which were not cognizable on appeal from a guilty plea even with a certificate.   When viewed in light of all of the circumstances, there is substantial evidence to support the trial court's decision that Frank's ability to appeal was not a factor motivating the entry of his guilty plea.   He failed to show good cause for withdrawal of his plea and therefore no abuse of discretion is shown upon the part of the trial court.

II

 Frank next contends it was a violation of due process and against public policy to accept his guilty plea because it was entered in exchange for promise of leniency with respect to his codefendant Starchild.   Frank admitted on cross-examination that no one told him there would be dire consequences for Starchild and the children absent a guilty plea.   It was his “understanding” from his attorney, Sandler.   Sandler testified he initiated the plea negotiations and raised with the prosecutor Frank's concern about Starchild's welfare.   Her own attorney was involved in the final negotiations.   Neither Sandler nor the probation officer was aware of any threats concerning the children.   The trial judge, after detailed examination of the evidence, concluded Frank was the moving force behind the package deal involving Starchild, there were no threats by the prosecutor and Frank's fears about what might happen to Starchild were “self-induced.”

Plea bargains are and have been approved and recognized as important components of this country's criminal justice system.  (Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627, 52 L.Ed.2d 136;  People v. West, 3 Cal.3d 595, 613, 91 Cal.Rptr. 385, 477 P.2d 409.)   The standard for determining the validity of a plea is whether it represents a “voluntary and intelligent choice among the alternative courses of action open to the defendant.”  (North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162.)   Moreover, “package deals” as part of a plea bargain have been upheld.   In United States v. Bambulas (10th Cir. 1978) 571 F.2d 525, 526, 527, the appellate court refused to invalidate a guilty plea because the government required all the defendants to plead guilty.   And in People v. Barnett, 113 Cal.App.3d 563, 574, 170 Cal.Rptr. 255, the court held there was no due process violation in the prosecutor's condition that both defendants plead guilty or neither plea would be accepted.

We are not unmindful that a plea bargain package resulting in either adverse or lenient treatment for some person other than the pleading accused might pose a danger of inducing a false guilty plea or skewing an assessment of the risks a defendant must consider.  (Bordenkircher v. Hayes, 434 U.S. 357, 364, fn. 8, 98 S.Ct. 663, 668, fn. 8, 54 L.Ed.2d 604.)   No danger is present in this case.   It was Frank's own attorney and Frank himself who raised the possibility of a package deal involving Starchild.   There was total lack of evidence of any threat by the prosecutor to take punitive action against her if Frank did not plead.

The recent case of People v. Artis, 127 Cal.App.3d 689, 179 Cal.Rptr. 806, considered the arguments raised here in similar factual context.   Defendant Artis moved to withdraw his guilty plea on the grounds that he entered the plea under the influence of drugs and to insure that murder charges against his wife would be reduced to voluntary manslaughter.   The trial court found that the plea was voluntarily made;  the Court of Appeal affirmed.   The analysis in Artis is elucidative:

“[T]he question here is one of voluntariness of the plea.   In such situations there can be no hard and fast rules but, instead, the court must look to the ‘totality of the circumstances.’  [Citations.]  The trial court should determine in the individual case whether there are good reasons for the defendant's pleading guilty independent of the favorable treatment which another person is to receive.   If the court is satisfied that defendant is pleading guilty voluntarily, that he has not been subjected to unreasonable pressures in order to induce him to plead guilty, and that the interests of justice would be served by a plea of guilty because there is good reason to believe the defendant is guilty, then he should be allowed to plead guilty even if he is making a sacrifice for another person.  [Citation.]”  (Id., at p. 696, 179 Cal.Rptr. 806.)

 A plea bargain package benefiting a third party is not contrary to public policy.  (Hoines v. Barney's Club., Inc., 28 Cal.3d 603, 170 Cal.Rptr. 42, 620 P.2d 628.)   Whether we accept the majority view in Hoines holding there was no violation of public policy for prosecutors in misdemeanor cases to dismiss charges in exchange for release of civil liability where the prosecutor acted “in the interest of justice,” (id., at pp. 613–614, 170 Cal.Rptr. 42, 620 P.2d 628) or if we side with the minority view of Justice Tobriner, the result is the same here.  Hoines involved an understanding or agreement effecting the rights of third parties in the civil area.   Such is not the case here.   Rather, we have codefendants charged in a proceeding where both the prosecution and the defense concede there are differing degrees of responsibility.   It is within the authority of the prosecutor to enter into a “package” plea bargain when one codefendant insists, as part of the bargain for his own guilty plea, that another codefendant receive a lesser sanction.  (See People v. Artis, supra, 127 Cal.App.3d 689, 179 Cal.Rptr. 806.)   We perceive no impropriety in a prosecutor agreeing to different penalties assessed to different codefendants.

The Hoines dissent carefully points out:

“The essential defect in such agreements, apart from their coercive nature, is that they do not achieve any legitimate function of the criminal process.   That defect distinguishes the dismissal release transaction from plea bargaining, in which the state benefits by saving expense of trial and expediting the disposition of the criminal case.  (See People v. West (1970) 3 Cal.3d 595, 604, 91 Cal.Rptr. 385, 477 P.2d 409 ․”  (Id., at p. 617, 91 Cal.Rptr. 385, 477 P.2d 409.)

The agreement, in this case, did achieve a legitimate function in the criminal process.   The People of the State of California did benefit by saving the expense of trial and expediting the disposition of the criminal case.   The purpose of plea bargaining is not to trap desperate people into “contracts” for sentences but simply to expedite sentencing when the defendant admits his guilt and is capable of making a voluntary and rational decision to serve a predictable amount of time.   No violation of any public policy, no species of improper plea bargaining was here involved.

Judgment affirmed.

STANIFORTH, Associate Justice.

GERALD BROWN, P. J., and COLOGNE, J., concur.