Filed 3/9/16 P. v. Lawless CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069596
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF144935A)
                   v.

KRISTOPHER WILLIAM LAWLESS,                                                              OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Gary T.
Friedman, Judge.
         Linda J. Zachritz, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Gomes, J. and Franson, J.
                       FACTS AND PROCEDURAL HISTORY1
       On October 29, 2012, Kristopher William Lawless (defendant) began accusing his
girlfriend, who had lived with him for about three months, of stealing money and pills
from him.2 When she denied taking his property, he struck her on the head with a glass
vase filled with glass marbles, then punched her until she lost consciousness. When she
woke, she was tied up in a tent in the spare bedroom. Defendant continued to accuse her
of stealing, and stated he would kill her if she did not return his money and drugs.
Defendant threatened to slit her throat, then stabbed her in the neck and lower lip. Over
the next two days, defendant bit her, burned her with a gas torch he used to smoke
methamphetamine, and repeatedly choked her with a rope almost to the point of
unconsciousness. She was finally able to escape on the evening of October 31, 2012,
when defendant untied her because it was her birthday. Defendant was arrested; he then
made several phone calls from jail to various people — including his mother —
threatening to harm them if they did not help him stop the victim from talking.
       At defendant’s first trial, a jury convicted him of possession of methamphetamine
(Health & Saf. Code, § 11377, subd. (a); count 7), possession of drug paraphernalia (id.,
former § 11364.1; count 8), and leaving the scene of an accident where property was
damaged (Veh. Code, § 20002, subd. (a); count 10). Jurors acquitted him of, or were
unable to reach a verdict on, multiple charges related to his conduct toward the victim.
       In anticipation of a retrial, which began March 4, 2014, the People filed an
amended information, charging defendant with torture (Pen. Code,3 § 206; count 1),
willful infliction of corporal injury on a cohabitant with the personal infliction of great


1      The facts of the underlying offenses are taken from the probation officer’s report.
2     According to the victim, defendant used and sold pills and methamphetamine, and
had marijuana growing in his spare bedroom.
3      Further statutory references are to the Penal Code unless otherwise stated.


                                              2.
bodily injury under circumstances involving domestic violence (§§ 273.5, subd. (a),
12022.7, subd. (e); count 2), and battery on a cohabitant (§ 243, subd. (e)(1); count 3).
Although each party initially rejected the other’s plea offers, on March 10, 2014, a plea
agreement was reached whereby defendant agreed to plead no contest to willful infliction
of corporal injury on a cohabitant in violation of section 273.5, subdivision (a); and a new
count, witness dissuasion in violation of section 136.1, subdivision (b)(2), a strike
offense.4 In return, defendant was to receive a sentence of four years eight months in
prison, to be served concurrently with his prior conviction, and a 10-year stay-away order
would be imposed with respect to the victim.
       Under questioning by the trial court, defendant confirmed he initialed and signed
the “Felony Advisement of Rights, Waiver and Plea Form,” which defense counsel also
signed. Defendant further confirmed he was “feeling all right,” had no medical condition
of which the court should be aware, had not taken any type of medication that deprived
him of his faculties, and understood what was going on. The court and defense counsel
advised defendant, on the record, of the consequences of pleading no contest to a strike
offense, including what could happen if he was not a citizen (§ 1016.5), and defendant
confirmed he was entering the plea freely and voluntarily, understood the nature of the
charges and possible pleas and defenses, and had had enough time to discuss his case and
the plea with defense counsel. Defendant then waived his constitutional rights pursuant
to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. The court
found defendant voluntarily and intelligently waived his rights, and fully understood the
nature of the offenses to which he was about to enter his plea and the consequences
flowing from that plea. The parties stipulated there was a factual basis for the plea based


4     Although the offense was a serious felony under section 1192.7,
subdivision (c)(37), it was not a violent felony as defined in section 667.5,
subdivision (c). Accordingly, defendant was eligible to earn credit at the rate of 50
percent (see §§ 2933, 2933.1, subd. (a)), and defendant was so informed.


                                             3.
on the offense reports, preliminary hearing transcript, defendant’s prior record, and the
proceedings and evidence from the first trial. Defendant then pled no contest as provided
by the plea agreement, and the remaining charges were dismissed on condition the plea
remain in full force and effect. The court found the plea was freely, knowingly, and
voluntarily made.
       Sentencing was set for April 8, 2014. On that date, defense counsel (Paul
Cadman) declared a conflict and asked to withdraw as defendant’s attorney. In addition,
defendant moved to withdraw his plea. The court granted Cadman’s request, appointed
new counsel (Fred Gagliardini) for defendant, and continued the matter. On April 11,
2014, Gagliardini declared a doubt as to defendant’s competence (§ 1368), a doctor was
appointed to examine defendant, and criminal proceedings were suspended. On May 9,
2014, defendant was found competent, criminal proceedings were reinstated, and
sentencing was set for May 29, 2014.
       On May 14, 2014, defendant filed a written motion to withdraw his plea.
Defendant asserted he was receiving psychotropic medications during his first trial,
which, for some unknown reason, were withdrawn prior to his second trial and remained
withdrawn when he changed his plea. Defendant claimed he was confronted with the
plea offer at a time when he was unable to cope with the complexity of a second trial
involving new witnesses and an offer he previously had rejected, and that Cadman had
been unaware of these circumstances.5 The People opposed the motion.
       At the hearing on the motion, defendant stated he wished to address the court. The
court advised him of his rights and had him consult with his attorney, but, against
Gagliardini’s advice, defendant insisted on being sworn and taking the stand. Defendant
then proceeded to cite the court to the Declaration of Independence, and asserted a

5      The clerk’s transcript contains a redacted version of the motion to withdraw the
plea. The original unredacted motion was sealed upon order of the trial court. We have
reviewed it.


                                             4.
number of his constitutional rights, including those under the Fourth, Fifth, Eighth, and
Fourteenth Amendments, had been violated. Defendant also claimed Cadman had
extorted him by saying if defendant did not take the offer, he would get a life sentence,
and that if he filed a motion for a new attorney, it would be “suicide.”6
       With respect to the day he changed his plea, defendant testified, under cross-
examination by the prosecutor, that he had no trouble getting up, getting ready for court,
or following deputies’ directions. When he spoke to Cadman about a plea deal, Cadman
told him the court was going to try to slander him. Defendant acknowledged Cadman
made him aware that certain evidentiary issues, such as defendant’s prior incident
involving prostitution, might become relevant in the second trial. Defendant recalled the
prosecutor saying she was not going to use the pictures from that incident. Defendant
denied reading the paperwork for the plea, but simply initialed where Cadman told him.
He admitted knowing, however, that he was signing his name and taking a plea deal, and
he recalled the court advising him of the rights he was giving up.
       Defendant further testified he had been taking his medications for a year and a
half, then, sometime in February, the jail stopped giving them to him for no apparent
reason. The psychiatrist told him it was in his best interests not to take them anymore.
As a result of being denied his own prescription, defendant took someone else’s
medication. The medication was an antidepressant. Defendant admitted that on the day
of the plea and the day after, when he was again in court on this case, he never advised
anyone of the problem with his medications.
       At the conclusion of defendant’s testimony, the trial court found there had been a
limited waiver of the attorney-client privilege, and permitted circumscribed questioning
of Cadman. Cadman testified he advised defendant he (defendant) was facing a life term,
but he denied threatening defendant. Cadman did not tell defendant it would be “suicide”

6      Defendant acknowledged the torture charge carried a life sentence. (§ 206.1.)


                                             5.
to get another attorney, although he made it clear he thought he was the attorney most
qualified to handle the retrial because he was intimately familiar with the case, having
handled the first trial, and he opined the next attorney would not be as qualified.
       Cadman testified that on the day of the plea, defendant was agitated, but not
incompetent. Cadman went over the waiver of rights with defendant. Cadman never said
defendant was going to get life if he did not accept the plea, although he made sure
defendant was aware the risk in the retrial was greater than in the first trial because of a
change in witnesses. In Cadman’s opinion, although defendant was reluctant to accept
the negotiated plea, defendant understood it. Cadman never got the indication something
“wasn’t right.” Cadman did not recall defendant saying anything about not being
provided medication at the jail. Had defendant done so, it would have been “a red flag,”
and Cadman would have made a note of the conversation.
       After argument and reviewing the court file, the trial court found no actions by the
prosecutor or Cadman to force any plea upon defendant. The court noted the questions it
had asked defendant, at the outset of the change of plea proceeding, about his health and
whether he was able to understand what was going on, and found no evidence
demonstrating defendant’s alleged mental health issues in any way affected his ability to
enter the plea freely and voluntarily. The court further found defendant did not bring to
the court’s or Cadman’s attention that he was having any issues, and there was no
credible evidence to show defendant lacked independent and clear judgment in entering
the plea. Accordingly, the court denied the motion to withdraw the plea.
       The court then proceeded to sentence defendant. It found no circumstances in
mitigation and multiple aggravating factors, and sentenced defendant to a total fixed term
of four years eight months in prison, in accord with the plea agreement. It ordered
defendant to pay restitution to the victim and to the restitution fund in an amount to be
determined by the probation department, at the direction of the court (§ 1202.4, subd. (f));
restrained defendant from all contact with the victim for 10 years (§ 273.5, subd. (i)); and

                                              6.
imposed a $280 restitution fine (§ 1202.4, subd. (b)), a $280 restitution fine that was
suspended subject to parole or postrelease supervision revocation proceedings
(§ 1202.45), an aggregate $80 court security fee (§ 1465.8), and an aggregate $60 court
facilities funding assessment (Gov. Code, § 70373). The court awarded defendant 1,149
days of credit (575 actual days plus 574 days of conduct credit).
         Defendant filed a timely notice of appeal and obtained a certificate of probable
cause.
                             APPELLATE COURT REVIEW
         Defendant’s appointed appellate counsel has filed an opening brief that
summarizes the pertinent facts, raises no issues, and requests this court to review the
record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also
includes the declaration of appellate counsel, stating defendant was advised he could file
his own brief with this court. By letter dated April 8, 2015, we invited defendant to
submit additional briefing. To date, he has not done so.
         After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.
                                       DISPOSITION
         The judgment is affirmed.




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