P. v. Eisenberg
Filed 4/17/13 P. v. Eisenberg CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff
and Respondent,
v.
STARLING EISENBERG,
Defendant
and Appellant.
B237867
(Los
Angeles County
Super. Ct.
No. GA082891)
APPEAL from a judgment (order
granting probation) of the Superior Court
of
County, Patrick Hegarty, Judge. Affirmed.
Elana Goldstein, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Linda C. Johnson and Blythe J. Leszkay, Deputy Attorneys
General, for Plaintiff and Respondent.
_________________________
Appellant
Starling Eisenberg appeals from the judgment (order granting probation) entered
following her plea of no contest to possessing
a controlled substance for sale (Health & Saf. Code, § 11351). The court suspended imposition of sentence
and placed her on formal probation for three years. We affirm the judgment.
The record reflects that during the early hours of March 30, 2011,
police went to a Burbank
apartment after they received a “shots fired†call involving possible domestic
violence. After police arrived,
appellant told police that she was okay and that her boyfriend, Melvin Cruz,
was in the bedroom. Cruz was lying in
bed in the bedroom.
Police searched the apartment and recovered a box
with several pill bottles, one of which contained baggies of suspected
cocaine. Police saw a revolver on the kitchen floor, a bag containing
ammunition, and a paper bag containing several spent casings. Police
recovered from the apartment $11,343 dollars, five bags of suspected cocaine,
and a marijuana pipe. Police asked appellant if it was her apartment and
if everything in it belonged to her, and she replied, “ ‘yeah, this is my
place.’ â€
Appellant claims that when the trial court denied her
the trial court abused its discretion because the trial court was unaware of
the scope of its discretion under Penal Code section 1018.
The
Trial Court Properly Denied Appellant’s Motion to Withdraw Her Plea.
1. Pertinent
Facts.
a.
Count 4 of the felony complaint filed in April 2011 in this case alleged
that on or about March 30, 2011, appellant possessed for
sale a controlled substance (cocaine) in violation of Health and Safety Code
section 11351. The complaint also
alleged that on or about March 30, 2011, Cruz
discharge of a firearm with gross negligence (Pen. Code, § 246.3, subd. (a);
counts 1 & 2), possession of a controlled substance (cocaine) with a
firearm (Health & Saf. Code, § 11370.1, subd. (a); count 3) and possession
of a controlled substance (cocaine) for sale (Health & Saf. Code,
§ 11351; count 4). Count 4 joined
appellant and Cruz as codefendants.
b.
The
record contains a copy of a purported letter signed by appellant, dated June 26, 2011. The unsworn
letter is written “To whom it may concern.â€
(Appellant apparently wrote the letter to Deputy Public Defender John
Montoya (discussed post), who
represented appellant in this case on June 20,
2011.) The letter reflects the following. Appellant was aware illegal drugs were found
in the apartment. The drugs were not hers. Appellant stated, “I
have, unfortunately and irresponsibly, given free rein, and allowed too many
people unsupervised access in my apartment, (which I will anticipate the drugs
came from), for I do not buy drugs, and did not, or have ever had intent to sell drugs.â€
(Sic.) Appellant understood that because it was her
apartment, she had certain responsibilities, and “[i]f that [made her] liable
for possession of such, so be it.†Much
of her letter addressed dispositional or sentencing issues.
c.
On July 15, 2011, the scheduled date for appellant’s preliminary hearing,
the court indicated in the presence of appellant and her counsel, Erin Muse,
that the court had told Muse that if appellant pled no contest to count 4, the
court would, inter alia, place appellant on probation for three years and order
her to complete 30 days in the Probation Adult Alternative Work Service
(PAAWS) program. Appellant indicated she wanted to do
this.
The court told appellant the prosecutor would ask her questions about her
constitutional rights and advise her of the consequences of her plea. The court stated, “I want you to listen to
those questions carefully. Answer how
you feel is appropriate. If you have any
questions, let me know. I’ll stop the
proceedings and allow you to speak to your attorney.†Appellant indicated she understood.
The prosecutor advised appellant of the consequences of her plea and she
waived her constitutional rights.
Appellant denied anyone had made promises to her to get her to plead
(other than what the court had told her on July 15, 2011), denied anyone had
threatened her to get her to plead, and stated she was pleading freely and
voluntarily.
Appellant later pled no contest to
the present charge (count 4), indicated she understood the plea was equivalent
to a guilty plea, and indicated she still desired to plead no contest. The following then occurred: “[The Prosecutor]: Counsel, stipulate to the plea based on the
police report and -- [¶] [Muse]: Pursuant to People v. West.â€
name="_ftnref2" title="">[2] Muse concurred in the waiver of rights and
the plea.
The court found appellant expressly, knowingly, intelligently, and
understandingly waived her constitutional rights, and found she entered her
plea freely, voluntarily, and with a full understanding of the nature and
consequences of that plea. The court
found a factual basis for the plea existed and the court accepted the
plea. The court suspended imposition of
sentence and placed appellant on formal probation for three years on the
condition, inter alia, that she complete 30 days in the PAAWS program. Appellant stated she understood and accepted
the terms of her probation.
d. Appellant’s
July 27, 2011 Letter.
The
record contains a copy of a purported letter from appellant dated July 27,
2011. The letter is unsworn and
unsigned. Page 4 of the letter indicates
it was written “To whom it may concern.â€
allegations.
Appellant
was afraid of Cruz. Police records
confirmed this, and it was documented that Cruz had told appellant several
times “throughout the incident†to keep quiet. When police arrested appellant, an officer
told her that the officer recognized gang tattoos on Cruz. Appellant had been unaware of them.
At a court hearing on June
20, 2011, Cruz sent to appellant a person whom Cruz referred to as Cruz’s
bodyguard. Cruz knew appellant would
recognize the person as “potentially threatening on [Cruz’s] behalf[].†The person tried to contact appellant several
times throughout the day, following her in the courthouse and into the courtroom. The person boldly sat next to appellant in
the courtroom.
After a hearing adjourned on
July 8, 2011, appellant was walking in a hall to leave. Cruz’s counsel, Michael Zimbert, was “lying
in wait†for appellant. Zimbert said
Cruz had instructed Zimbert to deliver a message to appellant. The message was, “ ‘Mel says, “Greetings
and Salutations.†’ †The July
27, 2011 letter stated, “However his statement was meant to be interpreted, it
infuriated, concerned, and intimidated both my father and [me] how with all the
steps taken, and with him being in custody, he was still able to get to me from
within the courthouse walls.â€
On
July 15, 2011, the date of appellant’s no contest plea, Muse was asked for
guidance concerning this case, and “[Muse] stated that if she was faced with
the same type of situation that I was in, that she would ‘take the bird in the
hand, and take the deal.’ â€
(Italics omitted.) Muse never
mentioned to appellant “before [appellant] decid[ed] to take the plea offerâ€
that the trial court would require appellant to register as a narcotics
offender.
Montoya
suggested that appellant write him a letter.
Appellant did and that letter was dated June 26, 2011. The June 26, 2011 letter “show[ed] my mindset
regarding the intent charge, . . . still standing by my innocence, only to
change my position during my time with [Muse].â€
Appellant wanted to withdraw her no contest plea and did not want to
“stamp [herself] guilty of a crime that [she had] never committed.â€
e. Appellant’s
August 2, 2011 Motion to Withdraw Her Plea, and the People’s Opposition.
On August 2, 2011, appellant
filed her motion to withdraw her no contest plea (motion). The motion was supported by Montoya’s
declaration, which declared the following on information and belief. Zimbert represented Cruz. At the close of Cruz’s July 15, 2011
preliminary hearing, the magistrate held Cruz to answer on counts 1 and 2, but
dismissed counts 3 and 4 pursuant to Penal Code section 1385.
cocaine with intent to sell. Appellant
told Montoya that appellant believes she made a terrible mistake by pleading no
contest to a violation of Health and Safety Code section 11351 and she wanted
to withdraw her plea. Appellant was
prepared to plead guilty to possessing cocaine in violation of Health and
Safety Code section 11350, subdivision (a) and to receive deferred entry of
judgment.
f. The
October 13, 2011 Hearing on the Motion.
At the October 13, 2011 hearing on
appellant’s motion, Montoya represented that he had provided to the court and
prosecutor materials that appellant had mailed to Montoya on July 27,
2011. Montoya stated that “in addition
to the written motion and those materials,†appellant wanted to address the
court personally.
The court stated (and we italicize its comments that we discuss later),
“Well, before she does, let me just indicate that I understand the basis for the motion.
But it’s a motion to withdraw a plea, which is very specific on the
legal grounds that I can use to validate and grant any of that motion. [¶]
And in this particular case, it’s pretty clear from the record that this
was a knowing waiver, that the defendant was advised of her constitutional
rights and the consequences. And it was
basically a plea entered because it was felt it would be in the best interests
based on everything that was going on at the time of the plea. And because of that, I don’t have any legal
basis to permit the withdrawal of the plea.
[¶] I know there are equitable
issues involved, and that’s why I suggested that the parties meet and confer
and see if they could arrive at some equitable disposition, short of my
withdrawing this plea based on this motion.
Because based on the motion, I have no legal grounds [on] which to base
a granting of the motion.†(Italics
added.)
The court then stated, “I know that it would appear from the way the
evidence came out at the preliminary hearing that it may not be a
possession-for-sale case, but that is after the fact. I can only deal in this motion with the date
the plea was entered, the advisements given, and the responses of the
defendant. [¶] So I don’t mind if she says something. But, [appellant], there’s not much I can do
legally to withdraw the plea. That’s why
I suggested the District Attorney’s office and the Public Defender’s office get
together to see if they could work something out. It looks like they haven’t. So if you want to say something, you may.â€
Appellant, personally addressing the court, said, “I made a lot of
mistakes this year. And accepting a plea
for a crime that I never committed . . . in my life. I’ve never sold, dealt drugs – it was just
the way it went down that day. It was
bad circumstances. [¶] I never had any intention to accept the plea
from day one. Mr. Stanford was my Public
Defender. He made me aware of the plea
that you had offered me. And I said, no,
I was not going to accept a plea for a crime I did not commit. [¶] It
was only my time with Ms. Muse, the Public Defender, that I decided to accept
it. [Sic.] And it was because she told me to. She told me if she were in my place, she
would take the bird in the hand and take the deal.â€
Appellant indicated Cruz sent his bodyguard to appellant to try to talk
with her, the bodyguard had the audacity to sit next to appellant in the
courthouse, and the bodyguard was “calling [appellant’s] name outside.†Appellant stated, “I find it wasn’t
intelligently or without at least some coercion as far as intimidation, and to
say the least, fragmented time with counsel.â€
(Sic.)
The court later said, “I understand that.
And I understand the dynamics of the situation because I then heard the
preliminary hearing of [Cruz]. And I
could see where, in the big picture, you could argue a different result than
what happened. [¶] But this is a motion to withdraw a plea. And the only requirements on the entry of the
plea are that you are advised of your constitutional rights, you know what they
are, you waive them, you are advised of the consequences of your plea, and you
know what they are. And those things
were done. [¶] Defendants can negotiate pleas that they feel
are in their best interests, and that seems to be what happened at this
point. So I have to, based on the law,
deny the motion to withdraw plea.â€
Appellant later indicated she was “willing to serve jail time for
possession.†The court replied, “I just
don’t have a basis for doing it. I can’t
grant motions on which there is no legal basis, as much as I want to. [¶] I
believe a better disposition in this for you may have been a possession case. But we’re past that. We’re past the negotiation of what the charge
should be and what you should plead to because a plea has been entered. [¶]
Now all I can deal with is the day the plea was entered, what took place
at the time of the plea, because I’m ruling on the motion to withdraw that
plea. That’s all I can rule on. [¶]
happened at the preliminary hearing or what you’re telling me now. I can only base it on what happened at the
time of the plea. So I don’t have
any legal basis to allow you to withdraw your plea; so I can’t. And I’m going to deny that motion.â€
2. Analysis.
Appellant claims that “[b]y failing to understand the scope of
its discretion [under Penal Code section 1018], the court abused its
discretion†when denying appellant’s motion.
Appellant’s claim actually implicates two discrete issues, i.e.,
(1) whether the trial court was unaware of the scope of its discretion
under Penal Code section 1018 with the result the trial court erroneously
failed to exercise its informed discretion when denying the motion (see
335, 348, fn. 8; People v. Bruce G.
(2002) 97 Cal.App.4th 1233, 1247-1248)
and (2) whether the trial court abused its discretion by denying the motion.
a. Applicable
Law.
A plea of guilty “is the
most serious step a defendant can take in a criminal prosecution.†(People
v. Chadd (1981) 28 Cal.3d 739, 748.)
The plea is deemed to constitute a judicial admission of every element
of the offense charged, serves as a stipulation the People need introduce no
proof whatever to support the accusation, supplies both evidence and verdict,
and is itself a conviction. (
The same is true of a no contest plea.
Penal Code section 1018
provides that on application of a defendant at any time before judgment or
within six months after an order granting probation is made if entry of
judgment is suspended, the court may, for good cause shown, permit a plea of
guilty to be withdrawn. The burden of
proof is clear and convincing evidence of good cause. The plea may be withdrawn for mistake,
ignorance, inadvertence, or any other factor overreaching a defendant’s free
and clear judgment. (
1 Cal.App.4th 1453, 1456; People v.
Waters (1975) 52 Cal.App.3d 323, 328.)
The requirement
that a defendant make a convincing showing of good cause has been said to
“codify the rule that leave to withdraw a guilty plea with its resulting
inconvenience and expense should not be lightly granted. [Citation.]†(Waters,
at p. 331.)
“Although the section is to
be liberally construed, ‘the
withdrawal of such a plea rests in the sound discretion of the trial court and
a denial may not be disturbed unless the trial court has abused its discretion.’ [Citation.]â€
(In re Brown (1973) 9 Cal.3d
679, 685.)
b. Application
of the Law to This Case.
(1) The
Trial Court Did Not Fail to Exercise Its Informed Discretion When Denying
Appellant’s Motion.
As to the first issue, whether the court was
aware of its discretion under Penal Code section 1018, appellant argues,
“Here, the court seemed to think that it could grant the motion only if the
plea itself was invalid: ‘I can’t decide that motion based on what happened at
the preliminary hearing or what you are telling me now. I can only base it on what happened at the
time of the plea.†We reject the
argument.
There is no dispute that prior to appellant’s no
contest plea, she was advised of the nature and consequences of her plea,
waived her constitutional rights, stated no one had threatened her to get her
to plead, and stated she was pleading freely and voluntarily. There is thus no dispute that based on the
record of the taking of the plea, appellant’s no contest plea was valid.
Although a Penal Code section 1018 motion is made
after such a plea, the motion raises the issue of whether a factor(s) (e.g.,
mistake, ignorance, etc.) overreached the defendant’s free and clear judgment
Appellant construes the trial court’s statement “I
can only base it on what happened at the time of the plea†as meaning “I can
only base it on whether the plea was valid.â€
Appellant in turn suggests the trial court erroneously believed it could
decide appellant’s motion based only on such factors as whether appellant
waived her constitutional rights prior to her no contest plea, and not on
whether, under Penal Code section 1018, a factor(s) overreached her free and
clear judgment at the time of the plea.
However, first, the trial court is presumed to have
known and applied the correct statutory and case law. (People
v. Mack (1986) 178 Cal.App.3d
1026, 1032; Evid. Code, § 664.) The
trial court is therefore presumed to have known and applied Penal Code section
1018 and its related case law indicating the pertinent inquiry was whether a
factor(s) overreached appellant’s free and clear judgment.
Second, during the trial court’s initial comments at the October 13, 2011 hearing, the court
stated, “. . . I understand the basis
for the motion. But it’s a motion to withdraw a plea, which is very specific on the legal grounds that I can use to validate and
Fairly construed in light of the above mentioned
presumption, the trial court’s statement distinguished the basis on which
appellant was asking the court to
grant the motion from the specific legal grounds—i.e., those set forth in Penal Code section 1018 and case law interpreting it—which
the court could use to grant such a
motion. The record thus adequately
demonstrates the trial court’s awareness of Penal Code section 1018 and case
law describing the legal grounds on the basis of which the trial court was
authorized to exercise its discretion and grant a motion made pursuant to that
section.
Third, it was only later that the court stated, “I
can only base it [i.e., the court’s decision on appellant’s motion] on what
happened at the time of the plea.â€
However, that statement was consistent with the court deciding, pursuant
to Penal Code section 1018, whether appellant exercised free and clear judgment at the time of the plea.
Fourth, although
the trial court stated, “I can’t decide that motion based on what happened at
the preliminary hearing,†that statement must be viewed in light of the trial
court’s additional comment to the effect the evidence at Cruz’s preliminary
hearing suggested “it may not be a possession-for-sale case.†That is, the trial court’s first statement,
reasonably understood, properly indicated the trial court could not consider
any deficiency in the evidence at Cruz’s preliminary hearing as a factor
impacting appellant’s earlier no contest plea which constituted a conclusive
judicial admission of guilt.
Fifth, before the
court stated, “I can’t decide that motion based on . . . what you’re telling me
now,†the only things appellant personally had told the court were, in essence,
she had made mistakes, she was factually innocent, she decided to plead no
contest based on Muse’s advice, Cruz’s bodyguard intimidated appellant, and
appellant spent insufficient time with Muse.
However, the fact appellant had made mistakes and her profession of
innocence were irrelevant given her conclusive no contest plea. The fact appellant, with knowledge of the
facts, pled no contest on advice of counsel supported
the denial of appellant’s motion. (Cf.
v. Hightower (1990)
224 Cal.App.3d 923, 928.)
As for the
remaining factors (alleged intimidation and insufficient time with Muse) the
trial court’s statement reasonably may be construed as indicating that they did
not justify granting appellant’s motion in light of the evidence that, with
knowledge of any such factors, she pled no contest pursuant to “
Notwithstanding
appellant’s assertions to the contrary, the record fails to demonstrate the
trial court was unwilling to explore or consider any factor that might have
impacted appellant’s free judgment at the time of the plea. We note in this regard the court ordered
appellant to file her motion in writing, asked Montoya on October 13, 2011, if
he wanted to be heard concerning the motion, and, after hearing from Montoya,
permitted appellant personally to address the court. The trial court was willing to consider (and
did consider) arguments at the hearing on appellant’s motion, and the trial
court’s comments, reasonably construed, indicate that it was unwilling to
consider such arguments as relevant
unless they pertained to the issue of whether a factor(s) overreached
appellant’s free and clear judgment at the time of the plea. The court effectively concluded appellant
pled no contest because it was in her “best interests based on everything that
was going on at the time of the plea†and appellant had failed to show the
requisite good cause.
Appellant has
failed to demonstrate that when the
trial court denied her motion, the trial court erroneously failed to exercise
its discretion because it was unaware of the scope of its discretion under
Penal Code section 1018. Instead, the
trial court understood and exercised its discretion under that section, denying
appellant’s motion.
(2) The
Trial Court Did Not Abuse Its Discretion by Denying
Appellant’s Motion.
As to the second issue,
whether the trial court abused its discretion by denying appellant’s motion, we
note the following. Appellant wrote a
letter to Montoya dated June 26, 2011.
The letter indicated the drugs in her apartment were not hers and she
never intended to sell drugs. However,
the letter never mentioned Cruz or any efforts by him to intimidate appellant.
The record of the
July 15, 2011 proceedings leading to appellant’s no contest plea on that date
reflects she freely and voluntarily pled no contest because it was beneficial
for her to do so. That record gives no
hint of any ground for a contrary conclusion or any hint of the issues she
later raised in her motion or in her letters.
Appellant’s July
27, 2011 letter indicated Cruz intimidated appellant and, “throughout the
incident,†Cruz told her to keep quiet.
However, appellant made no mention of these alleged facts in the June
26, 2011 letter, or on July 15, 2011 when she pled no contest after explicitly
telling the court she was pleading freely and voluntarily. The trial court reasonably could have
concluded there was insufficient evidence of intimidation. Moreover, appellant fails to explain how
Cruz’s alleged intimidating efforts to have her keep quiet induced her to do
exactly the opposite—plead no contest.
The July 27, 2011 letter reflects that on July 15, 2011, appellant
“decid[ed] to take the plea offer†and, despite the fact she previously had
maintained her innocence, appellant “changed [her] position†when Muse
represented appellant.
Appellant indicated in the July 27, 2011
letter that she would not “stamp [herself] guilty of a crime that [she had]
never committed.†However, her
credibility on that issue was weakened by the facts she claimed in the June 26,
2011 letter that the drugs were not hers but subsequently reiterated her
willingness to plead guilty to possession of cocaine (although appellant
suggested she thought she was liable for that crime simply because the drugs
were in her apartment).
Montoya filed
appellant’s motion on August 2, 2011, and the motion was not supported by a
declaration from appellant. Neither the
June 26, 2011 letter nor the July 27, 2011 letter was sworn. Montoya was aware of those letters and any
other materials she allegedly mailed to him.
However, Montoya, acting as appellant’s counsel, apparently elected not
to refer expressly in the motion to any of the above letters or materials and
apparently did not attach them as exhibits.
Instead, the
written motion asserted only three grounds for withdrawal of appellant’s no
contest plea: (1) the preliminary
hearing disposition of the charges against Cruz, (2) appellant’s profession of
innocence as to the present charge, and (3) her claim she made a terrible
mistake by pleading no contest to that charge.
However, simply put, neither these grounds, information presented to the
trial court in connection with appellant’s motion, nor appellant’s apparent
buyer’s remorse after learning the magistrate dismissed certain counts against
Cruz, constituted good cause for granting appellant’s motion. The trial court did not abuse its discretion
by denying appellant’s motion to withdraw her plea of no contest to possessing
a controlled substance for sale.
The judgment (order granting probation) is affirmed.
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
KITCHING,
J.
We concur:
KLEIN, P. J. ALDRICH, J.
name="_ftn1" title="">[1]
Cruz is not a party to this
appeal.
name="_ftn2" title="">[2]
This was apparently a reference
to People v. West (1970) 3 Cal.3d 595 (West).
