P. v. Kobayashi
Filed 1/29/13
P. v. Kobayashi CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JESUS HUMBERTO
KOBAYASHI, JR.,
Defendant and Appellant.
F064361
(Super. Ct. No. BF134831A)
O P I N I O N
THE COURT
APPEAL from
a judgment of the Superior Court of
Law Offices
of John F. Schuck and John F. Schuck, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Leanne LeMon, Deputy Attorney
General, for Plaintiff and Respondent.
-ooOoo-
Appellant Jesus Humberto Kobayashi,
Jr. was charged with one count of committing a lewd or lascivious act on a
child under the age of 14 (Pen. Code, § 288, subd. (a)/count 1)
lascivious acts on a child under the age of 14 (§ 288, subd. (b)(1)/counts
2, 3 & 4). The information also
alleged two convictions in 1999 for violations of section 288, subdivision (b)
within the meaning of section 667.61, subdivision (d)(1), two prior strike
convictions (§ 667 subds. (c)-(j)), and two prior serious felony convictions (§
667, subd. (a)). Under the charges,
appellant faced a prison term of 25 years to life. On the day set for trial, appellant pled no
contest to two counts and admitted one prior strike conviction for a stipulated
prison term of 20 years. The remaining
allegations were dismissed. Appellant
subsequently hired new counsel and moved to withdraw his plea. The court denied his motion and imposed the
20-year term. Appellant appeals,
contending the trial court erred and abused its discretion by denying his
motion. We affirm.
FACTS
The preliminary hearing revealed
that between August and September 2010, appellant molested his 11-year-old
niece, S.M., four times. In mid-August,
he squeezed her buttocks over her clothing and threatened to kill her if she
told anyone. On a Monday in September,
appellant visited the apartment where S.M. lived with her mother, appellant’s
sister. Appellant entered S.M.’s
bedroom, shut the door, put his hand inside her pants and penetrated her vagina
for a few seconds. S.M. did not report
the incident because appellant threatened her and she was afraid. Later that month, S.M. was in the living room
holding her aunt’s baby, while her aunt cooked in another room. Appellant sat beside S.M. and grabbed her
breast over her clothing. In the fourth
incident on September 22, 2010, appellant spent the night at S.M.’s
apartment. S.M. and her mother were asleep
in the living room. S.M. awoke to
appellant touching her vagina skin-to-skin.
S.M. described it as, ‘“pulling on her from the area where she
urinates.â€â€™ She did not report the
incident then because appellant threatened to use a taser on her, which
frightened her.
Appellant admitted to the police
that he had inappropriately touched S.M.
At the readiness hearing, the court
granted a defense motion to evaluate appellant pursuant to section 1368. After reviewing the report by the
psychologist, the court found appellant competent to stand trial.
On the day set for trial, counsel
stipulated to continue the matter for a week, for a possible disposition. When the parties returned to court a week
later, appellant agreed to enter a plea of no contest to counts 1 and 2, and to
admit one prior strike conviction for a stipulated 20-year prison term. The remaining charges and enhancements would
be dismissed. Appellant completed a
“Felony Advisement of Rights, Waiver and Plea Form,†in which he acknowledged
and waived the pertinent constitutional rights and acknowledged the
consequences of his plea. In open court,
appellant affirmed that his attorney had gone over the form and explained his
rights to him, he had initialed and signed the form, he had no questions before
the court took his plea, and he understood and gave up his rights. He acknowledged he would be sentenced to 20
years in prison and would have two strikes on his record. He then entered his plea, which the court
found to be knowingly, freely and intelligently entered.
Before sentencing, appellant
substituted retained counsel for the public defender and moved to withdraw the
plea. The motion was made on two
grounds: (1) appellant was not properly
informed of his right to, nor given the opportunity to, subpoena witnesses on
his behalf, and (2) he was not given an opportunity to evaluate and investigate
newly-acquired evidence that was disclosed to him a few days before he entered
his plea. According to appellant,
shortly before trial counsel told him, “We can’t go to trial because we have no
witnesses.†Appellant asserted that he
had given counsel a list of witnesses he wanted called on his behalf and
counsel had failed to subpoena a single witness for trial. Under the circumstances, appellant felt he
had no choice but to enter the no contest pleas. Regarding the new evidence, during the trial
continuance, defense counsel had shown appellant a recent district attorney
investigation case report, which contained summaries of an interview with the
victim, the victim in the prior case, and appellant’s sister (the victim’s
mother). Appellant asserted that counsel
did not investigate the statements or request a continuance to do so. Rather, he told appellant, “Your family said
to take the deal.†Appellant concluded
by asserting that he was innocent of the charges and wished to withdraw his
plea.
The People opposed the motion. They noted that appellant was properly
advised of his right to subpoena witnesses on his behalf, and the investigator’s
report was not new evidence. Rather, the
report contained the same damaging statements by the witnesses against
appellant that had been disclosed to the defense earlier.
At the evidentiary hearing on the
motion, appellant testified that he had asked counsel to call five witnesses¾four
family members and his brother’s friend.
Before he entered his plea, counsel visited him at Lerdo jail and told
him things looked bad; he had no witnesses.
From this, appellant concluded that counsel “wasn’t doing his job,â€
because he had provided names of witnesses to call on his behalf, including his
mother and his sister, who would testify that the victim tried to seduce others
and lied about things. He testified he
had a learning disability, read at a third-grade level, and was unaware of the
charges to which he was admitting. On
cross-examination, he conceded he had made admissions to the police when they
interviewed him, but said he was nervous and could not think right. On the stand, he acknowledged that, in the
videotaped police interview, he admitted he had molested another niece and
three others while he was a juvenile and “did time for that.†He had entered pleas in that case in juvenile
court. In addition, he entered a plea to
a possession of marijuana charge in 2006, a plea to giving false information to
a police officer in 2007, and a plea to spousal battery in 2008. He testified he had not read the police
report or watched the videotape of his police interview for his current
case. And, although defense counsel had
discussed his rights with him throughout the year he had represented him,
counsel did not review his constitutional rights with him the day he entered
his plea. Counsel had just told him,
“sign here, sign here.†Appellant
conceded that when he gave his list of witnesses to counsel, he was aware of
his right to subpoena witnesses.
Defense counsel Benjamin Nkwonta
testified he had been with the Kern County Public Defender’s Office for 18
years. He had handled hundreds of child
molestation cases and had worked on appellant’s defense for about a year. He had visited appellant at Lerdo jail at
least six times and had several additional video-conferences. He was very aware of appellant’s learning
disability and had requested a competency exam to be certain of appellant’s
abilities. He had met with all of
appellant’s family members multiple times.
He had reviewed all of the reports with appellant, and he and appellant
had watched the videotape of appellant’s police interview on counsel’s laptop
at the jail. Nkwonta acknowledged that
appellant confessed to touching his niece inappropriately during the interview
with the police.
Nkwonta met with all of appellant’s
witnesses personally and had his investigator speak with them, including appellant’s
mother, his sister (whose daughter he molested), and his niece who was the
victim of the previous molestation.
Counsel did not tell appellant he had no witnesses. Those witnesses had been subpoenaed by the
prosecution and ordered by the court to appear for trial. In addition, they were family members who
were cooperating with the defense. He
had discussed possible defenses with appellant several times. He had reviewed the evidence and discussed
appellant’s chances at trial and what would happen if they lost. He never told a client they were going to
lose at trial because “you don’t know what will happen in trial.†Nkwonta told appellant the prosecution had
strong evidence based on appellant’s statements to the police and the
statements of witnesses that appellant wanted called at trial. Before appellant agreed to the plea, counsel
discussed the case and the pros and cons of accepting the prosecution’s
offer. Counsel asked for a one-week
continuance because appellant wanted additional time to consider the offer,
which the court granted. Ultimately,
appellant accepted the plea deal.
Nkwonta testified he discussed
appellant’s rights the day he entered his plea and “lots of times†prior to
that. He shared the district attorney
report of October 3, 2011, with appellant.
He had already interviewed those witnesses and saw nothing new to
investigate.
The court denied the motion. There was no evidence in the record as to
what appellant’s witnesses would have testified to. Appellant’s belief that his mother and others
would testify that the victim seduced him or other men, “certainly doesn’t help
him out,†nor would calling the niece that he admitted he had molested in the
past. Further, defense counsel had
spoken with appellant “many, many times†and gone through the evidence with
him. The court concluded that appellant
“hasn’t even come close†to meeting his burden of showing good cause to
withdraw his plea.
The court imposed the agreed-upon
term: the upper term doubled to 16 years
on count 1 and four years (one-third the middle term) on count 2 for a total
prison term of 20 years.
DISCUSSION
Appellant contends the trial court
erred and violated his constitutional
rights in denying his motion to withdraw his plea. The People disagree.
Motion to
Withdraw Plea
A
defendant will be permitted to withdraw his guilty plea for good cause. (§ 1018.) “Good cause†includes mistake, ignorance,
fraud, duress or any other factor that overcomes the exercise of free
judgment. It must be shown by clear and
convincing evidence. (
914, 917-918.) On appeal, we accept all
factual findings of the trial court that are supported by substantial evidence
and review the denial of a motion to withdraw a guilty plea for abuse of
discretion. (Id. at p. 918.) Here,
there is substantial evidence to support the trial court’s determination that
appellant’s plea was voluntarily and intelligently entered. Therefore, the trial court did not abuse its
discretion in finding no good cause and denying appellant’s motion to withdraw
his plea.
Appellant
argues the trial court erred because he “was pressured into taking the deal,â€
and the trial court did not address this aspect of his motion. The pressure was due to the fact that counsel
had failed to subpoena the three witnesses the prosecution had subpoenaed, and
had failed to subpoena appellant’s brother and the brother’s friend, whom
appellant wanted called for his defense.
From this, appellant argues that defense counsel failed to properly
investigate the case and, thus, was unable to properly advise appellant
regarding the entry of a plea.
The record does not support
appellant’s claims. While appellant
testified to the same version of events he argues on appeal, there was ample
evidence to the contrary. Defense
counsel’s testimony indicated he had thoroughly investigated and prepared the
case, and had adequately advised appellant in relation to the plea
agreement. In addition, counsel had
ascertained that appellant was competent for the proceedings and had secured a
one-week trial continuance so appellant had ample time to consider the plea
offer in light of his learning disability.
Moreover, the trial court was not required to expressly reject
appellant’s claim that he was pressured into taking the deal in finding he had
failed to meet his burden of showing good cause to withdraw his plea.
Appellant next argues, based on his
own testimony, that he was not aware of his constitutional right to subpoena
witnesses when he entered his plea.
Again, there was ample evidence in the record for the court to reject
appellant’s testimony and find to the contrary.
Appellant was no stranger to the criminal justice system. He testified that he had entered four
previous pleas to criminal charges and conceded he had waived his rights in
those cases. (Parke v. Raley (1992) 506 U.S. 20, 37 [defendant’s prior experience
with the criminal justice system is relevant to whether he knowingly waived
constitutional rights].) Further, the
plea form advised appellant explicitly of each of his constitutional rights,
including the right to subpoena witnesses, and required that appellant
acknowledge and waive each right by initialing the adjacent line. Appellant initialed each right and he answered
affirmatively to the court’s queries whether he had had enough time to discuss
his rights with counsel and whether he understood and gave up his rights. A validly executed plea form is sufficient to
satisfy the dictates of Boykin v. Alabama
(1969) 395 U.S. 238 and In re Tahl (1969)
1 Cal.3d 122. (In re Ibarra (1983) 34 Cal.3d 277, 285-286.) Finally, Nkwonta testified he had discussed
appellant’s constitutional rights¾including the right to subpoena witnesses¾with
him throughout the proceedings “lots of times†and when appellant signed the
plea waiver form. And appellant conceded
he was aware of his right to subpoena witnesses when he gave his list of
witnesses to Nkwonta. As such, the
record does not support appellant’s claim that he entered his plea unaware of
the rights he was waiving.
Appellant has not shown that the
trial court abused its discretion in denying his motion to withdraw his guilty
plea because his plea was involuntary or uninformed.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before Wiseman, Acting P.J., Gomes,
J., and Kane, J.
name="_ftn2" title="">1 Further
statutory references are to the Penal Code.
