P. v. Apostolas
Filed 11/5/13 P. v. Apostolas CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
STEVEN J. APOSTOLAS,
Defendant and Appellant.
D063476
(Super. Ct.
No. SCD241724)
APPEAL from
a judgment of the Superior Court
of
Dwayne Moring, Judge. Affirmed.
Patrick
Morgan Ford for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Sean M.
Rodriquez, Deputy Attorneys General, for Plaintiff and Respondent.
Steven Apostolas was charged in an amended complaint with
numerous counts and appended enhancements, and with 10 prior serious felony convictions
and 10 prior strike convictions. He faced
life sentences if convicted. Instead, he
entered into a plea agreement to plead guilty to numerous counts and appended
enhancements, and to admit to a prior serious felony conviction and prior strike
conviction in return for a stipulated determinate prison term of 30 years. On appeal, he asserts the trial court abused
its discretion when it denied his motion
to withdraw his guilty plea, because his plea was not knowing and voluntary
and he was denied effective assistance of counsel.
FACTUAL
AND PROCEDURAL BACKGORUND
A. Facts
The facts,
drawn from the probation report, are that Apostolas was previously convicted of
10 counts of lewd acts on the children of his then-girlfriend. On June
22, 2012, Apostolas drove a car to a local park, where he was seen
in the company of the victim, an eight-year-old homeless male. Police were concerned when the car Apostolas
was driving was shown to be owned by a registered sex offender, and they
investigated but could not find Apostolas or the victim. They returned the following day, and located
and interviewed the victim. When they
asked the victim if Apostolas had made him uncomfortable, he said, "Yea,
he told me people come here to have sex."
When police asked if Apostolas had touched his private parts, the victim
looked away, crossed his legs, crossed his hands over his stomach, and said, "No"
in a low voice. However, the victim told
police Apostolas had coerced him into removing his clothes and going into a
small body of water with him.
Two days
later, police took the victim to the Polinsky
Center. During a June 27 interview by a social worker
at the center, the victim stated Apostolas had touched the victim's private
parts under his clothing on more than one occasion.
B. The Guilty Plea
The amended
complaint charged Apostolas with three counts of lewd and lascivious touching
and one count of attempted sexual abuse with restraint, and also alleged
numerous enhancements and prior serious felony and prior strike convictions. He faced life sentences, with a minimum 30-year
term, on each count for which he was convicted.
In exchange for a stipulated determinate sentence of 30 years, he
pleaded guilty and admitted the underlying factual allegations, the enhancements,
and the prior serious felony convictions and prior strike convictions. He acknowledged his guilty plea was entered
freely and voluntarily, his judgment was not impaired, and he understood the
guilty plea surrendered his rights to confront and cross-examine witnesses
against him and to present evidence. At
the August 2, 2012, court
hearing at which the plea was accepted, he verbally reiterated these admissions;
the court found Apostolas acted knowingly and voluntarily, and that there was a
sufficient factual basis for the plea.
C. The Motion to Withdraw the Plea
Five weeks
later, Apostolas filed a Marsden
alleging his counsel (Mr. Aragon) did not investigate the case or
communicate with Apostolas, coerced him into agreeing to plead guilty without giving
him the opportunity to consult with others or to review the discovery, and
allowed him to plead guilty even though he was in "no mental state"
to do so. The following week, Apostolas
filed an in propria persona motion seeking to withdraw his guilty plea that reiterated
these allegations. On October 31, 2012,
new counsel for Apostolas filed a more detailed motion seeking to withdraw his
plea, alleging Aragon had refused to provide an investigator for the case, and alleged
Aragon told Apostolas his case was a "lost cause" and to stop wasting
the court's and Aragon's time. Apostolas
claimed he did not understand the consequences of his plea agreement, had only
been given 15 minutes to review the charges in the amended complaint and, had he
known the terms to which he ostensibly agreed, he would not have pled guilty.
Aragon
filed a declaration stating he had extensively discussed the evidence with
Apostolas, along with possible defenses and his potential sentencing
exposure. At no time did Aragon
say it was a lost cause or to stop wasting anyone's time, and he did not decline
a request by Apostolas for an investigator.
Aragon
averred he had met with Apostolas in advance of the plea hearing to discuss the
new charges with him, reviewed the change of plea form with him at the plea
hearing and described the consequences of pleading guilty, and that Apostolas
understood the impact of his plea and wanted to plead guilty.
Apostolas
called no witnesses at the hearing on his motion
to withdraw his plea. The People
called Aragon, who testified he reviewed the discovery, including twice
watching a video of one of the interviews of the victim, and also went to the
park at which the molestations occurred.
He met with Apostolas and thoroughly reviewed the materials with him,
and offered to give him all of the materials but Apostolas declined. Aragon
discussed the inconsistencies in the victim's statements with Apostolas and
asked for his opinion as to the minor's credibility, and also advised him of Aragon's
concerns that Apostolas's prior misconduct with children would be potential
Evidence Code section 1101, subdivision (b), evidence at trial. Aragon was "perfectly willing" to
take the case to trial, and considered consulting with an expert about
suggestive questioning to undermine the minor's testimony, but Apostolas stated
the victim was credible and he wanted to avoid a longer sentence, which
obviated the need to consult with an expert.
Aragon
negotiated the plea agreement and discussed whether to take the plea or to go
to trial and attack the victim's credibility, and Apostolas instructed him to
accept the offer. Aragon
also met with Apostolas one or two days before the plea agreement hearing to
discuss the new charges, and Apostolas affirmed his desire to take the plea
deal. On the day of the plea hearing, he
appeared to understand what was going on, and Aragon
again reviewed the plea agreement with him.
Apostolas, after having an additional "couple of hours" to consider
it, still wanted to accept the agreement.
The court
found Aragon's
testimony credible, and that Apostolas's declaration containing contrary
allegations was not. The court found
there was no evidence Aragon
coerced him into accepting the agreement, and found Apostolas did understand
the nature of the plea and its consequences.
The court also found Aragon
"did a thorough job" in investigating the case, in explaining to
Apostolas the "pros and cons" of the case, and in negotiating the
plea agreement.
ANALYSIS
A. Legal
Standards
Penal Code section 1018 provides, in
part: "On application of the defendant at any time before judgment . . . ,
the court may, . . . for a good cause shown, permit the
a plea of
not guilty
substituted. . . . This section shall be liberally construed to
effect these objects and to promote justice." In general, "[m]istake, ignorance or any
other factor overcoming the exercise of free judgment is good cause for
a guilty
v. Cruz (1974) 12 Cal.3d 562, 566.) However,
"[a] plea may not be withdrawn
simply because the defendant has changed his mind." (People
v. Nance (1991) 1 Cal.App.4th 1453, 1456.)
The defendant has the burden to show, by clear and convincing evidence,
there is good cause for withdrawal of his or her guilty plea. (Id. at p. 1457.)
The decision to grant or deny a
to the sound discretion of the trial court. (People
v. Fairbank (1997) 16 Cal.4th 1223, 1254; People v. Nance, supra, 1
Cal.App.4th at p. 1457.) "A denial
of the motion
will not be disturbed on appeal absent a showing the court has abused its
discretion." (Nance, at
p. 1456; see also Fairbank, at p. 1254 ["A decision to deny a
is final unless the defendant can show a clear abuse of [the trial court's]
discretion."].) "Moreover, a
reviewing court must adopt the trial court's factual findings if substantial
evidence supports them." (Fairbank,
at p. 1254.) Our role in determining whether Apostolas
satisfied his burden of producing clear and convincing evidence in the trial
court in support of his motion to withdraw a guilty plea is a limited one,
because " '[a]ll questions of the weight and sufficiency of the evidence
are addressed, in the first instance, to the trier of fact, in this case, the
trial judge. We cannot reverse his order
if there is substantial evidence or a reasonable inference to be drawn from it
which supports the order. Where two conflicting inferences may be drawn from
the evidence it is our duty to adopt the one supporting the challenged order.' " (People
v. Harvey (1984) 151 Cal.App.3d 660, 667.)
B. Analysis
Apostolas
contended his plea was not a voluntary plea because Aragon coerced him into
pleading guilty by telling him his case was a "lost cause" and to
stop wasting the court's and Aragon's time, and by refusing to provide an
investigator. Apostolas also contended
his plea was not a knowing plea because Aragon did not adequately explain to him
the potential exposures or the potential avenues of defense for the case. The trial court rejected these claims because
it credited Aragon's testimony that he did not coerce Apostolas into accepting
the agreement, that he "did a thorough job" in investigating the case
and explained to Apostolas the "pros and cons" of the case, and that he
did discuss the charges with Apostolas, who appeared to understand the nature
of the plea and its consequences.
Because there was substantial evidence supporting these findings, the
trial court did not abuse its discretion in concluding Apostolas's plea was
entered knowingly and voluntarily. (
Apostolas's
alternative claim is that he was denied effective assistance of counsel because
Aragon did not hire an investigator or otherwise fully investigate the case,
but instead merely reviewed the materials turned over by the prosecution. A defendant who has been denied the effective
assistance of counsel in entering a plea of guilty is entitled to reversal and
an opportunity to withdraw his plea if he or she so wishes, because a valid
guilty plea must be based upon a defendant's full awareness of the relevant
circumstances and the likely consequences of his or her action. (People
v. McCary (1985) 166 Cal.App.3d 1, 7-9.)
adequacy of counsel. First, Apostolas
must show trial counsel did not act in a manner expected of reasonably
competent attorneys acting as diligent advocates. Second, he must establish that counsel's acts
or omissions resulted in withdrawal
meritorious defense. (
Cal.App.3d at pp. 104-105.)
In the
context of a claim that a guilty plea should be vacated based on ineffective
assistance of counsel, when a defendant expresses a desire to plead guilty,
counsel acts in a manner expected of reasonably competent attorneys acting as
diligent advocates when he or she has investigated carefully all factual and
legal defenses available to the defendant and advised the defendant of all options. (Hunt,
supra, 174 Cal.App.3d at p. 105.)
Here, the court found Aragon "did a thorough job" in
investigating the case, in evaluating Apostolas's options, and in explaining to
him the "pros and cons" of the case, and Aragon's testimony provides
substantial evidentiary support for that finding. The trial court's rejection of Apostolas's claim
of ineffective assistance of counsel as the predicate to his motion to withdraw
his plea was not an abuse of discretion because there was substantial
evidentiary support for the conclusion he was not denied effective assistance
of counsel.
DISPOSITION
The
judgment is affirmed.
McDONALD,
J.
WE CONCUR:
BENKE,
Acting P. J.
HUFFMAN, J.
name="_ftn1" title="">[1] People v. Marsden (1970)
2 Cal.3d 118.
