P. v. Vaccaro
Filed 7/26/13 P. v. Vaccaro CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY
CHRISTIAN VACCARO,
Defendant and Appellant.
A137059
(Sonoma County
Super. Ct. No. SCR-596487)
This
is an appeal from a decision by the trial court to deny defendant’s motion to
withdraw his no contest plea to two felonies, violations of Health & Safety
Code sections 11359 (possession for sale of marijuana) and 11366.5, subdivision
(a) (management of a location for the unlawful manufacture and storage of
controlled substances). The trial court
conducted a hearing on the issue during which time original trial counsel for
defendant testified, addressing issues raised by defendant in his motion. At the end of the hearing, the trial court
denied the motion to set aside the no contest plea pursuant to Penal Code
section 1018. We find no error in this
determination and affirm the trial court.
STATEMENT OF THE
CASE
As a result of
executing several search warrants and
an ongoing police investigation, seven suspects including defendant were
charged in a 15-count complaint with crimes dealing with possession for sale,
cultivation, and maintaining a place for the distribution of marijuana. The prosecution’s initial complaint included
early resolution offers for each defendant.
Defendant, represented by attorney Walter Rubenstein, pleaded not guilty
on March 17, 2011.
On
March 18, 2011, two of the charged codefendants entered pleas to the offer
proposed by the district attorney.
Codefendant Mills entered a plea to Health & Safety Code section
11358 (cultivation) and codefendant Olson pled to Health & Safety Code
section 11366.5, subdivision (a), a misdemeanor. The proposed package deal for the remaining
codefendants required defendant to plead to a violation of Health & Safety
Code section 11359 for a sentence of probation, a custody sentence of 120 days
in jail, destruction of equipment found in the properties, forfeiture of moneys
seized under the search warrants, and no possession of marijuana during probation. On April 5, 2011, the prosecutor withdrew the
package offer to the remaining codefendants.
Defendant
entered a time waiver and the parties continued the
resolution. By January 2012, the case
had not been resolved, and was assigned to a trial attorney in the district
attorney’s office. Additionally, on
January 24, 2012, the prosecutor presented another package offer to remaining
codefendants. The new proposal obligated
defendant to plead to two felony charges, violations of Health & Safety
Code sections 11359 and 11366.5, subdivision (a), with formal probation along
with 180 days in county jail, and other conditions of probation. Other codefendants (Charbonneau and
Timmonslee) objected to felony pleas.
After meeting with the trial judge, the district attorney solicited
counter-offers from defense counsel.
These offers were to be presented before the scheduled preliminary
hearing date of February 7, 2012.
On
February 3, 2012, all defendants accepted plea offers before Judge
Thistlethwaite. The prosecutor
acknowledged considerable time was invested in the dispositions. Codefendants Charbonneau and Lee accepted
conditional felony sentences. Timmonslee
and Solakian pled to misdemeanor crimes.
Defendant pled no contest to Health & Safety Code sections 11359
(Count Two) and 11366.5, subdivision (a) (Count Six) for probation, with 90
days in custody or jail alternatives, and was allowed to possess with valid medical
documentation, 15 marijuana plants at any one time. All remaining charges were dismissed.
On
May 10, 2012, defendant substituted counsel.
He was now represented by the lawyer who currently is handling this
appeal. On May 31, 2012, defendant made a
motion to set aside his plea. He is the
only defendant in this case who made such a motion. The district attorney opposed the
motion. The hearing before Judge
Thistlethwaite took place on July 24, and on September 4, 2012. The only witness who testified at the
proceedings was defendant’s trial attorney Walter Rubenstein. He was a witness for the prosecution. After argument, the trial court denied
defendant’s motion.
Defendant
was given a three-year formal probation sentence with all conditions of
probation detailed in the plea form imposed.
This appeal followed with a certificate
of probable cause by the sentencing court.
STATEMENT OF
FACTS
This
court has reviewed the presentence report which includes some of the facts that
underlie this prosecution. On January
26, 2011, sheriff’s deputies executed search warrants at four separate
properties owned by defendant. During
the course of these events, law enforcement officers seized more than 900
marijuana plants, 20 pounds of processed marijuana buds, $10,000 in cash, 60
high-density lights, various items of cultivation equipment, scales, packaging
materials, and calendars indicating cultivation dating back six years. Defendant told police he grew 240 pounds of
marijuana per year. He affirmed he gave
seven pounds of marijuana yearly to five to seven patients whose names he could
not recall. He smoked an ounce a day
himself, and sold the remainder of his product at $3,000 per pound to
“dispensaries.†He had a yearly profit
of $699,000. Ms. Charbonneau,
defendant’s girlfriend, and his 15-year-old son were paid $15 per hour to
assist in cultivation efforts.
In
a letter to probation dated March 22, 2012, defendant indicated he was an
“herbalist and horticulturist†who had 15 years’ experience in medicinal herbs
of several varieties. With the passage
of Proposition 215, defendant “began growing, breeding, and creating new
genetic strains of cannabis for [his] own medicine.†Over time, defendant obtained several
properties where he was able to become “a [steward] of the land†and continue
his “passion,†i.e., cannabis cultivation.
Defendant also stated he had retained accountants to assist in his
federal and state tax obligations “as well as lawyers to help [advise] me on
the current cannabis laws. I truly feel
that I acted in a manner consistent with these laws, yet somewhere I
overstepped the boundaries. This was
never my intention.â€
In
his motion to withdraw the plea, defendant argued he was given inadequate
advice on defenses available in his case.
His declaration alleges a number of omissions committed by his trial
counsel, Rubenstein. Many
successful filing of post-preliminary hearing motions under Penal Code section
995. However, defendant entered his no
contest plea before the preliminary
hearing took place, waiving the hearing and motions afterwards. Defendant personally waived his right to a
preliminary hearing during the Boykin-Tahl
court at the time of the plea. This
included his right to present evidence and examine witnesses. Additionally, in the plea form submitted to
the court, defendant personally indicated he had adequate time to discuss the
case with his attorney and was fully informed of the defenses available to him.
Attached
to his motion to set aside his plea, defendant included exhibit Nos. B and
C. Exhibit No. B is a multi-page printed
form from “Reseda Discount Caregivers Collective Corp.†It has several places for personal
information but the exhibit included in the motion has no information filled
in. There is no indication the document
involves defendant and no item references him in any way. Exhibit No. C is a document called “Delivery
Services for Homebound Patients.†The
several pages identify Christine Reels of Santa Rosa, certificate No.
70650. The item relates to her seller
permit. A page in exhibit No. C is dated
November 24, 2009, dealing with a payment voucher involving Ms. Reels and
defendant’s name is listed as “consigner.â€
That particular page has no date with the space for dating blank. There is no way to determine what connection
the page has with the remainder of the exhibit, save the fact defense counsel
included it in exhibit No. C.
Clearly
missing from the motion to withdraw his plea is a declaration from defendant
providing a factual basis for the importance of the defenses he believes his
trial counsel failed to provide.
Defendant’s position fails to provide a nexus between the lack of advice
and facts suggesting these omissions were prejudicial to his particular
case.
The
prosecution opposed the motion to withdraw the no contest plea. It submitted the declaration of Rubenstein,
defendant’s trial counsel. In it,
Rubenstein indicated he advised defendant of the defenses available under case
law and reviewed documents provided by defendant pertaining to his financial
success in cultivation. The prosecution
also called Rubenstein as a witness at the hearing before the trial court. He related he discussed features of defending
an accused in a marijuana cultivation case.
He was aware of the law regarding defenses in these cases. Rubenstein discussed legal issues associated
with the issues in Colvin,
decision in that case had not taken place.
The lawyer found defendant was “very educated in regard to these [legal]
matters.†Defendant offered “several
suggestions†on handling his case, all of which were freely discussed. Rubenstein did tell defendant he could be
viewed as a qualified patient under current laws, but the two also discussed
the “excessive profits†defendant had in relationship to his defense and the
fact he hired people to be involved in his production system. The tax records could present issues to
defendant. Additionally, Rubenstein
indicated he would not present all defense evidence during the preliminary
hearing but rather reserve it for the trial of the matter. Finally, defendant told Rubenstein he had
certain guidelines for a plea negotiation he wanted his lawyer to consider and
defendant was “concerned†about protecting “other people involved as
well.†Rubenstein determined the
decision to enter a plea was the personal choice of defendant.
Defendant
did not testify at the hearing; nor did he present additional evidence
challenging the testimony of Rubenstein.
The
trial court addressed the issues raised in the hearing from the bench. He indicated there is “no doubt in my
mind—I’m not finding for one moment that Mr. Rubenstein was ineffective but I
don’t believe that there . . . hasn’t been an argument that he was
ineffective.†“[W]hat I have to make a
finding is by clear and convincing evidence . . . that [defendant]
would not have entered into this plea had he been advised of certain defenses,
and I also have to—and it requires a showing of good cause by clear and
convincing evidence for the granting of a motion to withdraw a guilty plea,
. . . that due process of law is furthered by the withdrawal of the
plea, and I have to consider all the factors necessary to bring about a just
result.
“One
of the factors I said from the very beginning was the fact that this was a
package deal, and one of the first things that Mr. Rubenstein said was that Mr.
Vaccaro considered as well any person, would be the co-defendants that were
involved in this case, that that was a consideration . . . he
made.
“Mr.
Rubenstein made it very clear that [defendant] was very active in his defense
and that he brought many things to . . . the table, he brought them
to Mr. Rubenstein’s attention, he brought his medical marijuana card, he
brought his doctor’s letter of recommendation, . . . he discussed tax
documents that were given and they discussed also the evidence of excessive
profits or the possibility that even though all of these other things may have
been found to be true, that, in fact, he could aggregate the amounts of
marijuana [he] had, . . . based on the number of people that were in
the collective.
“[Court
points out that Colvin involved a
collective of 5,000 people and this case involved 15.] That is a lot of marijuana.
[¶]
. . . [¶]
“So
all of these things are—they’re evolving, and I cannot make a finding by clear
and convincing evidence that you would not have entered your plea, and I’m
denying your motion, that I do not believe it is in the interest of justice, I
do not believe that you were denied due process, and you haven’t made your case
by clear and convincing evidence so I’m denying the motion.â€
DISCUSSION
Defendant’s
motion to withdraw his no contest plea was correctly denied under Penal Code
section 1018. Our review will find abuse
of discretion here only if the decision of the trial judge is outside the
bounds of reason. (People v. Benavides (2005) 35 Cal.4th 69, 88.) We cannot make that finding here.
A
defendant will not be permitted to withdraw his plea because he has changed his
mind. We naturally defer to the sound
discretion of the trial court in the first instance here. Only if defendant establishes an abuse of
discretion will the ruling be disturbed.
(People v. Breslin (2012) 205
Cal.App.4th 1409, 1416.) The showing
defendant makes here must be by clear and convincing evidence he was operating
under mistake, ignorance, or any other factor establishing he did not exercise
his free will. But for the mistake, he
would not have pled no contest here. (
We
note at the outset this is not a case alleging ineffective assistance of
counsel. The trial court did not find
Rubenstein ineffective in his performance.
Defendant does not allege the claim, only that he was not aware through
ignorance and mistake of relevant defenses he could assert.
It
is important to appreciate the record in this prosecution. This was an early plea bargain
situation. Prosecution wanted to dispose
of the entire case in prompt fashion as opposed to preparing a multiple
defendant case. It is difficult to fully
develop a challenge to trial counsel’s performance in the early stages of a
case, especially before the preliminary hearing occurs. There is no way to assess defense challenge
to prosecution evidence in the early stages of the case. (Premo
v. Moore (2011) 562 U.S.___, [178 L.Ed.2d 649, 660–664, 131 S.Ct. 733,
741–744].)
On
the notion of mistake or ignorance, we observe defendant only seeks to have his
plea set aside. While the disposition of
the case was presented as a package for all codefendants, not just defendant
herein, he makes no argument that merits vacating the package resolution
reached here. An order vacating a plea
by defendant is appropriate if the prosecution offered a package deal
conditioned on acceptance by all defendants, and the other defendants withdrew
the plea. (Liang v. Superior Court (2002) 100 Cal.App.4th 1047,
1054–1055.) One of the conditions of a
package plea is voided if all are not pleading guilty or no contest. If one defendant backs out, the deal is off
for all. (United States v. Caro (9th Cir. 1993) 997 F.2d 657, 658.)
It
is also true the plea must be voluntarily, knowingly and intelligently
done. Yet this important element is
satisfied even if the defendant does not know the specific detailed
consequences of pleading to a charge. (
622, 629.) A person pleading to a charge
may often operate with certain misapprehension about the circumstances of the
case. He may not appreciate the strength
of the government’s evidence. (
742, 757.) Additionally, the accused may
incorrectly, or fail entirely to, appreciate a change in the law dealing with
his prosecution or sentencing. (
759, 770.) We cannot expect defense
counsel to envision all possible options a case may experience, especially when
the pressure is presented by the government to resolve the case expeditiously
and the defendant agrees to early resolution as is the situation in this
matter.
Particularly
relevant on the issue of ignorance or mistake is the decision of
563. There, counsel’s failure to review
with his client the notion of double jeopardy did not invalidate the guilty
plea based on ignorance or mistake. The
court noted its decisions in this area had not obligated trial counsel to
engage in a check list of defenses and other issues with the client before a
guilty plea can be proposed. “Waiver in
that sense is not required.†(
contest or guilty given up his right to have a hearing on an affirmative
defense or evidentiary issue; he has opted for early resolution and its
benefits by entry of the voluntary plea.
The import of a particular defense or legal argument is now off the
table by choice. (Id. at pp. 573–574.)
Affirmative defenses are subject to forfeiture by the accused. (Cowan
v. Superior Court (1996) 14 Cal.4th 367, 390.) It is a clear principle of plea bargaining
that the plea of no contest is the admission by the accused of all essential
elements needed to sustain a conviction.
(People v. DeVaughn (1977) 18
Cal.3d 889, 895; see In re Troy Z. (1992)
3 Cal.4th 1170, 1179–1182.)
At
best, a review of defendant’s claim on appeal is evidence of buyer’s
remorse. Based on the evidence presented
at the hearing before the trial court, defendant was aware of his defenses and
considered the importance of the package disposition for him, his girlfriend,
and other codefendants whom he had compensated from the profits of his
“business.†These factors presumably
were considered by defendant when he changed his plea. “The rule that a plea must be intelligently
made to be valid does not require that a plea be vulnerable to later attack if
the defendant did not correctly assess every relevant factor entering into his
decision.†(Brady v. United States, supra, 397 U.S. 742, 757.) At the time of his plea, defendant affirmed
“I have had enough time to discuss with my attorney my
have to the charges and the consequences of this/these pleas.â€
At
the end of the day, we find the trial court did not abuse its discretion. It
concluded after a hearing in which only attorney Rubenstein was cross-examined,
that defendant had not satisfied his burden by clear and convincing evidence
that he made his plea under a misunderstanding of defenses under current
marijuana laws. (People v. Breslin, supra, 205 Cal.App.4th 1409, 1416–1417.) Indeed, “All decisions to plead guilty are
heavily influenced by difficult questions as to the strength of the
prosecution’s case and the likelihood of securing leniency.†(Id.
at p. 1417.) The trial court did not
exercise its discretion in an arbitrary or capricious manner, nor did the
ruling evidence a manifest miscarriage of justice. (People
v. Jordan (1986) 42 Cal.3d 308, 316.)
The
judgment is affirmed.
__________________________________
Dondero,
J.
We
concur:
__________________________________
Margulies,
Acting P. J.
__________________________________
Sepulveda,
J.*
*
Retired Associate Justice of the Court of Appeal, First Appellate District,
Division Four, assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
name="_ftn1" title="">[1] Boykin v.
Alabama (1969) 395 U.S. 238; In re
Tahl (1969) 1 Cal.3d 122.
name="_ftn2" title="">[2] We underscore the statement by defendant he had
retained lawyers to advise him regarding the law pertaining to the cultivation
and distribution of medical cannabis over the years he had been in the business
of distributing the product.
