PEOPLE v. HARRIS (1990)

OPINION

The People charged defendant with five sexual abuse crimes against his stepdaughter, including two counts of forcible rape, two counts of oral copulation and one count of child endangerment.   Pursuant to a plea bargain, defendant pled guilty to one count of a lesser included offense, sexual battery (Pen.Code, § 243.4).   The trial court withheld pronouncement of judgment and placed defendant on five years supervised probation on the condition that he serve one year in county jail.

The trial court originally permitted defendant to serve his jail time in four-day increments.   After several modifications of probation his probation was revoked and the court reinstated him on probation on the condition that he serve the rest of his jail time as “straight time.”

Less than one month after the trial court reinstated defendant's probation (and some two years, seven months after entry of defendant's guilty plea), it received a letter from defendant's stepdaughter stating that she had lied on the stand at the preliminary hearing and that defendant had not in fact committed any sexual abuse crimes against her.   The letter was printed, though the signature was in script;  it bore the seal of a notary public.   The trial court forwarded copies of the letter to the parties.   Defendant later filed a motion to withdraw his guilty plea on the ground that the victim-witness had recanted her testimony.   The trial court denied the motion.¹

Defendant contends on appeal that the trial court abused its discretion in denying the motion.²

FACTS

Because defendant pled guilty, the facts set out herein are taken from the preliminary hearing transcript and the probation report.

The victim's natural father reported to police in July of 1984 that defendant had molested his 16–year–old daughter, who had been living with her mother and stepfather (the defendant) at the time.   The victim told police that defendant had molested her a number of times.

At the preliminary hearing, the victim testified about five specific instances of abuse.   She stated that defendant first approached her in a bedroom of their house in July of 1983, insisted that she take off her pants, and orally copulated her.   He then warned her that if she told anyone he would kill her.   In the early part of August of the same year defendant again found her in the bedroom and this time forced her to orally copulate him.   Later in August defendant accosted the victim in the bathroom and forced her, by pulling on her hair, to kneel and orally copulate him.   At the beginning of September, defendant raped the victim on a table in the barn, causing her to bleed.   Late in September, defendant once again raped the victim, after hitting the victim's mother in the back of the head with a flashlight.

When the police asked the victim why she had waited so long to report the crimes, she said that she was afraid of her stepfather, thought that he might attempt to kill her, and that “ ‘Paul is a crazy person and he even attacked and raped his own daughter Debbie.’ ”   When police interviewed Debbie, she stated that her father had molested her continually for four years beginning when she was 12 years of age.   Debbie described the sexual abuse she had suffered in detail, stated her father had warned her that if she told anyone she would not be believed, and stressed that her father “ ‘just mentally and physically tortured me.’ ”

Police also conducted interviews with other persons who told them of defendant's sexual misconduct.   In particular, defendant's stepson Bill Griffin told police of an incident in which defendant walked into the bathroom while a girl was taking a shower, ripped open the shower curtain and stood laughing in front of the shower.

After the preliminary hearing, as detailed above, defendant changed his plea to “guilty” and received probation.

Some years later the victim sent a letter of the trial judge indicating to him that she had lied about the sexual abuse.   The judge sent copies of the letter to the parties and defendant based a motion to withdraw his guilty plea on the contents of the letter.

The victim-witness did not appear to testify at the hearing on the motion to withdraw the guilty plea.   There was no indication that defendant had ever subpoenaed her or that she was in any way unavailable as a witness and defendant offered no explanation for her failure to testify.   Defendant did not offer any affidavit or declaration by the victim-witness into evidence.   Defendant never offered the victim-witness's recanting letter into evidence, though the record of the hearing shows that the judge considered the letter to be part of the case file and had read and considered the letter.   Defense counsel made an offer of proof that defendant had always steadfastly maintained his innocence, which the court accepted.   No other evidence was adduced at the hearing, though both defense counsel and the prosecutor made informal comments about conversations with the victim-witness as part of their arguments.

Before hearing counsels' arguments, the judge made the following statement:  “My basic, fundamental thought is that it's not fair to put innocent people in jail.   I think that's a fundamental thought.   On the other hand, I am also aware of People vs. West, and I think if there is a genuine question about his guilt or innocence that probably I would not permit the withdrawal of the plea, but if he is innocent, that's a really different situation.   I don't think the Court should ever be putting innocent people in jail.”

After counsel made their arguments, The judge denied the motion, stating:  “I have really wrestled with my conscience, and from everything that I recall about the case, primarily things from way back, I really am convinced that he committed these offenses.  [¶ ] As I say, I have to wrestle with my own conscience, and I am really convinced that he committed the offenses.   I know a lot of other people who seem to feel he didn't, but based on everything I heard, I certainly feel he did.   So I will deny the motion to withdraw the plea.”

DISCUSSION

Defendant contends that the trial court abused its discretion by deciding the motion to withdraw the plea based on its own subjective belief in defendant's guilt rather than the appropriate test for evaluating such a motion.   As we explain below, we agree.

Penal Code section 1018, which authorizes motions for withdrawal of guilty pleas, provides that the trial court may grant such a motion “for a good cause shown.”  “As a general rule, a plea of guilty may be withdrawn ‘for mistake, ignorance or inadvertence or any other factor overreaching defendant's free and clear judgment.’ ”  (People v. Superior Court (Giron) supra, 11 Cal.3d at p. 797, 114 Cal.Rptr. 596, 523 P.2d 636, quoting People v. Butler (1945) 70 Cal.App.2d 553, 561, 161 P.2d 401.)   In exercising its discretion under section 1018, the trial court may take into consideration “material matters with which an accused was confronted and as to which he made erroneous assumptions when he entered a guilty plea.”  (Giron, supra, 11 Cal.3d at p. 797, 114 Cal.Rptr. 596, 523 P.2d 636.)   Defendant has the burden of proving grounds for withdrawal of a guilty plea by clear and convincing evidence.  (People v. Harvey (1984) 151 Cal.App.3d 660, 667, 198 Cal.Rptr. 858.)   Motions to withdraw a guilty plea are usually supported by court records, affidavits or oral testimony.  (People v. Goldman (1966) 245 Cal.App.2d 376, 380, 53 Cal.Rptr. 810;  overruled on other grounds in In re Smiley (1967) 66 Cal.2d 606, 626, fn. 14, 58 Cal.Rptr. 579, 427 P.2d 179.)  “A defendant's failure to produce any support except unsworn statements is a factor in finding no abuse of discretion in rejection of the motion.”  (Ibid.)

In the trial court and on appeal defendant argued (argues) that he made a mistake when deciding to enter a guilty plea because he assumed that based on his stepdaughter's testimony he would be convicted of a number of serious crimes and would serve a long prison term.   He claims that his ignorance that his stepdaughter would recant caused him to change his plea, though he maintained throughout the proceedings that he was innocent, and that the concern about a long prison term overrode his free judgment.

In cases involving a victim's recantation, our appellate courts have cautioned repeatedly that a witness's offer to retract sworn testimony should be viewed with suspicion and given little credence.  (People v. Langlois (1963) 220 Cal.App.2d 831, 834, 34 Cal.Rptr. 116;  People v. McGaughran (1961) 197 Cal.App.2d 6, 17, 17 Cal.Rptr. 121.)   In the instant case, the victim's letter was never introduced into evidence and it consisted of an unsworn statement;  the victim-witness submitted no affidavit to the court;  defendant, who had the burden of proof, did not produce his stepdaughter as a witness or show that she was unavailable as a witness—there is no showing that he attempted to secure her presence at the hearing by subpoena or any other means;  defendant did not testify as to his reasoning process at the time he entered his guilty plea or present any other documentation to show that he did not exercise free will in entering his plea.

Nevertheless, the trial court did not apply the “free and clear judgment” test set out in Giron to determine whether defendant's free judgment was overridden by the circumstances of his plea.  (People v. Superior Court (Giron), supra, 11 Cal.3d at p. 797, 114 Cal.Rptr. 596, 523 P.2d 636.)   Instead, it relied on its own opinion that defendant was guilty as the basis for its decision to deny the ruling.   Because of this failure to apply the proper standard in evaluating the motion, this court finds itself compelled to reverse the trial court's ruling.

DISPOSITION

The order is reversed and the case is remanded to the trial court to conduct a new hearing applying the proper standard for determining the merits of the motion for withdrawal of plea pursuant to People v. Superior Court (Giron), supra, 11 Cal.3d at p. 797, 114 Cal.Rptr. 596, 523 P.2d 636.

FOOTNOTES

FOOTNOTE.  

1.   We note that under Penal Code section 1018 and People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 114 Cal.Rptr. 596, 523 P.2d 636, appellant has filed a timely motion to withdraw because the trial court has not imposed a judgment and sentence.   It appears to this court that section 1018 facially or in its application is constitutionally infirm under the equal protection of law clauses of both the United States and California Constitutions because it creates two separate classes of persons who may move to withdraw their pleas of guilty, one of which has a much longer period of time to make such a motion.   Any sentenced person or probationer who has sentence pronounced, stayed and is then placed on probation must make his/her motion before judgment.   A probationer whose sentence and judgment is suspended, and who is placed on probation, may make her/his motion at any time before judgment, if any, is imposed.   This apparent inequity and anomaly may be cured by appropriate legislation such as amending section 1018 to provide that a defendant may move to withdraw a guilty plea at any time before judgment or before an order of probation is made (irrespective of whether the order is after a suspension of the imposition of judgment or after the imposition of judgment and a stay thereof.)

2.   The People contend that this appeal is not properly before the court because defendant did not submit a written statement made under penalty of perjury pursuant to Penal Code section 1237.5.   As the People point out, such statements are required in order to guard against a defendant's raising issues on appeal which have not first been presented to the trial court.  (People v. Pinon (1979) 96 Cal.App.3d 904, 909, 158 Cal.Rptr. 425.)   Defendant did submit a written statement of the issues to be raised on appeal, but he did not swear to the statement.   On June 6, 1990, we notified defendant that he had failed to sign his written statement under penalty of perjury, and informed him we would dismiss his appeal unless he submitted a new statement signed under penalty of perjury within 15 days of the notification.   On June 20, 1990 defendant filed a properly sworn statement with this court.

THE COURT.* FN* Before Hollenhorst, Acting P.J., Dabney, J., and Timlin, J.