Filed 3/16/16 P. v. Apodaca 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069886
         Plaintiff and Respondent,
                                                                            (Super. Ct. No. PCF296802A)
                   v.

MICHAEL JOSEPH APODACA,                                                                  OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T.
Montejano, Judge.
         Shannon Chase, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Gregory
B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Kane, Acting P.J., Franson, J. and Smith, J.
      Defendant Michael Joseph Apodaca was convicted by guilty plea of first degree
residential burglary. His codefendant and wife, Virginia, pled no contest to conspiracy to
commit burglary. On appeal, defendant contends the trial court’s denial of his motion to
withdraw the plea violated his due process rights because his plea was involuntary as part
of a coercive package-deal plea bargain. We affirm.
                     FACTS AND PROCEDURAL SUMMARY
      The probation officer’s report included the following factual summary of
defendant’s and Virginia’s offenses:

             “Reports of the Porterville Police Department indicate on March 17,
      2014, at approximately 7:32 p.m., officers were dispatched to Morton
      Avenue and Conley Street in regards to a cold report of a residential
      burglary. Upon arrival, officers contacted victims N.P. and R.P., who
      reported on March 16, 2014, at approximately 4:00 p.m., the suspects, who
      were later identified as the defendant, Michael Apodaca, and co-defendant,
      Virginia Apodaca, were digging through the victims’ trash cans at the
      residence they were in the process of moving out from. N.P. indicated she
      was throwing things away, when the defendants began asking her questions
      about her moving from the residence.

             “N.P. indicated she left the residence at approximately 11:00 p.m.,
      and returned the next day at approximately 7:45 a.m., and noticed her
      jewelry was stolen and her back door was open. N.P. advised the jewelry
      that was stolen was a gold necklace with a cross pend[a]nt worth $500, a
      gold wedding ring with a diamond in the center worth $500, a gold bracelet
      worth $1,000, and a gold two finger ring worth $400. N.P. indicated
      nothing else was stolen and she did not report the incident right away
      because she did not want to be late for work.

              “N.P. advised she returned to the residence to clean, when her son
      arrived and told her he saw the defendants walking around the area again.
      N.P. and her son followed the defendants to Conley Street; however, they
      lost sight of them and that is when she called the Porterville Police
      Department. While N.P. and R.P. were waiting for an officer to arrive, they
      observed the defendants again. [N.P. and R.P.] approached the defendants
      and asked them to return the jewelry. The defendant reached into his
      pocket and pulled out a wedding band, double finger ring, and the cross
      pendant without the necklace. The defendant attempted to give the jewelry

                                            2
       back; however, [N.P.] said no because some of the jewelry was missing and
       she wanted it all back. The defendant ran through the backyard of a nearby
       residence and [Virginia] walked into the same residence. Officers
       responded to the residence; however, [the defendants] did not answer the
       door.

               “On March 18, 2014, at approximately 5:50 p.m., a photo line-up
       was created with the defendant[s’] pictures and both N.P. and R.P. were
       able to positively identify them. On the same date, at approximately
       6:40 p.m., officers were dispatched to the defendant[s’] residence in regards
       to the defendant threatening to kill Virginia. Upon arrival, Virginia advised
       the defendant had left the residence. Virginia was arrested due to having an
       active warrant and transported to the Porterville Police Department for
       booking. She stated the defendant had the stolen jewelry, and then began to
       change her story in a manner that did not make sense. She denied knowing
       anything about the burglary and stated another man stole the jewelry. She
       continued to cry and not make sense so the interview was terminated. A
       BOL was issued for the defendant.

              “On March 19, 2014, officers located and arrested the defendant.
       The defendant advised he and Virginia did go to N.P.’s residence to look
       through the trash and he located jewelry. The defendant then recanted his
       statement and said he never found jewelry. The defendant continued to
       change his story and the interview was terminated. The defendant was
       transported to the Tulare County Main Jail for booking.”
       On March 20, 2014, the Tulare County District Attorney charged defendant with
three felony counts: first degree residential burglary (Pen. Code, § 459;1 count 1),
conspiracy to commit burglary (§ 182, subd. (a)(1); count 2), and receiving stolen
property (§ 496, subd. (b); count 3). The complaint further alleged as to all three counts
that defendant had suffered three prior strike convictions within the meaning of the Three
Strikes Law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). His maximum exposure for
a single conviction was therefore at least 25 years to life. (§ 667, subd. (e)(2).)
       Virginia was charged in the same complaint with the same three crimes as
defendant (counts 4-6); however, no Three Strikes prior strike convictions were alleged



1      All statutory references are to the Penal Code unless otherwise noted.


                                              3
against her. The prosecutor stated that Virginia’s maximum exposure as charged was
nine years.
       At the preliminary hearing confirmation hearing on March 27, 2014, the
prosecution “extended a package deal offer” and the preliminary hearing date was
vacated, according to the minute order of the clerk’s transcript. The following occurred:

              “THE COURT: Any questions, [Virginia’s counsel]?

             “[VIRGINIA’S COUNSEL]: No, Your Honor. I talked to my client
       and she’s willing to waive time. The District Attorney has made an offer.

              “[PROSECUTOR]: The offer will remain open but just for the
       record, it is a global offer that would have to be accepted by both
       defendants in order for it to be taken.

              “THE COURT: Okay. So it’s a package offer.

              “[PROSECUTOR]: Yes, Your Honor.”
       The court then asked both defendant and Virginia if they were willing to waive
time for their preliminary hearings and trials. Both stated they were.
       At the change of plea hearing on April 24, 2014, the trial court asked defendant
and Virginia if they had any questions. They said they did not. The court asked if they
understood that (1) some of their counts could be used as prior strikes, (2) their pleas
could result in a violation of their probation or parole, (3) their pleas could result in their
deportation, (3) their maximum parole period would be three years if they were sentenced
to prison, (4) they could be sent back to prison for parole violations, (5) they might be
required to pay restitution and fines, and (6) a no contest plea was the same as a guilty
plea for sentencing purposes. They answered yes to each question. The court then asked,
“Other than what I told you regarding the consequences of your plea, has anyone
threatened you or promised you anything to get you to enter into this plea?” They
answered no. The court asked if they had used any medication, alcohol, or drugs that
would affect their ability to understand what they were doing at the plea hearing. They


                                               4
answered no. The court asked if they (1) had sufficient time to discuss their cases with
their attorneys, (2) were satisfied with the service and advice of their attorneys, and
(3) had a chance to discuss all the facts and potential defenses of their cases. They
answered yes to each question. The court asked if they understood and willingly gave up
the right (1) to a preliminary hearing, (2) to a trial by court or jury, (3) to present a
defense and subpoena witnesses, (4) to confront witnesses, and (5) not to incriminate
themselves. They answered yes to each. The parties stipulated to the police report as a
factual basis of the pleas. The attorneys stated they had sufficient time to discuss the case
with their clients and had advised him or her of the nature of the charges, the
consequences of the plea, and any possible defenses. They believed their clients fully
understood these matters.
         Defendant then pled guilty to count 1, residential burglary, and admitted one prior
strike conviction allegation and a newly alleged prior serious felony conviction allegation
(§ 667, subd. (a)) with an indicated sentence of 17 years (six years doubled on count 1,
plus a five-year term for the § 667, subd. (a) enhancement). The district attorney
dismissed counts 2 and 3.
         Virginia pled no contest to count 5, conspiracy to commit burglary, with an
indicated sentence of 120 days in jail.
         The trial court accepted the pleas and admissions, finding that both defendant and
Virginia had knowingly and intelligently waived their rights in order to enter into the
pleas.
         On July 14, 2014, defendant filed a motion to withdraw his plea. (By this time,
Virginia was apparently out of custody.) In his written motion, defendant explained:

                “The Defendant entered a plea of guilty before the Honorable
         Kathryn Montejano in this case. Defendant maintains he was coerced into
         entering a guilty plea. Specifically, Defendant was informed if he enters a
         guilty plea, his co-defendant/wife [Virginia] would receive an offer of
         probation and be released from custody. Defendant states he was


                                               5
concerned with his wife’s health, and felt she needed to be released from
custody in order to obtain proper medical care. Defendant states he would
not have entered a guilty plea if not for his concern regarding his wife and
the promise of her being released soon after the plea.”
In the attached declaration, defendant stated:

       “1. I am the defendant in this matter.

       “2. Through my attorney, I entered a guilty plea in this case.

       “3. At the time I entered the no contest [sic] plea, I was concerned
           about my wife’s health.

       “4. My attorney informed me that if I were to enter a guilty plea, the
           District Attorney would make an offer to my wife in which she
           would be released soon after the plea.

       “5. My attorney informed me that if I do not enter a guilty or no
           contest plea, the District Attorney would not make my wife an
           offer on this case because the offer was a ‘package deal.’

       “6. I feel the District Attorney was using my wife as leverage
           against me, in order to force me to enter a guilty plea.

       “7. I therefore request leave to withdraw my no contest [sic] plea
           and enter a plea of not guilty, and proceed to trial.”
       At the July 23, 2014 hearing on the motion, the following occurred:

         “[DEFENSE COUNSEL]: Thank you, Your Honor. [¶] Basically,
it’s all outlined there in the Declaration. He feels that because of his wife’s
health that he was pressured into pleading guilty, because it was a package
deal which was going to result in her being released from custody and
being able to seek private medical treatment. And his position is that but
for that, he would not have entered a guilty plea—or a no contest plea.

       “THE COURT: Alright. Any response from the People?

       “[PROSECUTOR]: Yes, Your Honor. In addition to submitting on
the Opposition, which we did file, it’s the People’s position that the
Defendant clearly did waive his rights. It was clearly stated on the record
when the Court asked him if there were—specifically, I’m looking at
Page—lines 8 through 14. It says, ‘Other than what I have told you
regarding the consequences of your plea, has anyone threatened you or
promised you anything to get you to enter into this plea?’ The Defendant

                                       6
clearly stated ‘No.’ There was never talk about having his wife get out for
medical treatment. That kind of issue was never brought up before. He
clearly did waive all of his rights and emphatically so after being
counseled. And on the written opposition, we’ll just submit.

        “THE COURT: Alright. The Court is reflecting on the portion of
the transcript of the plea where the Court specifically asked the Defendant
if there were any promises or other inducements that would negate his
intent in the plea. [¶] Court stated, ‘Other than what I have told you
regarding the consequences of your plea, has anybody threatened you or
promised you anything to get you to enter into this plea?’ And
[defendant’s] response was ‘No.’ So the Court is going to be denying the
motion. [¶] … [¶]

      “(Discussion held off the record between counsel)

       “OUT-OF-CUSTODY [VIRGINIA]: That’s not true, because I
asked to be released. I was lied to.

      “THE DEFENDANT: Your Honor, can I have a word? Do I get a
chance?

      “THE COURT: [Defense counsel], something is going on.

        “OUT-OF-CUSTODY [VIRGINIA]: I talked to her. You need to
tell the truth about what we talked about.

      “(Discussion held off the record between [Virginia’s counsel] and
Out-of-Custody [Virginia])

       “THE COURT: He’s trying to speak to the Court and I’m advising
him to go through you as his attorney.

      “THE DEFENDANT: Virginia, wait.

      “(Discussion held off the record between [Virginia’s counsel] and
Out-of-Custody [Virginia])

      “(Discussion held off the record between [defense counsel] and the
Defendant)

      “THE DEFENDANT: Your Honor?

      “[DEFENSE COUNSEL]: Judge, can he address the Court?

      “THE COURT: [Defense counsel]?

                                     7
        “[DEFENSE COUNSEL]: Judge, he’d like the Court to reconsider
its ruling and he’d like to address the Court.

       “THE COURT: Okay. Go ahead, sir.

        “THE DEFENDANT: Your Honor, I was under a great amount of
duress. I mean, for me to willingly accept a 17-year sentence, I’m 60 years
old in ten days. That’s a death sentence to me, Your Honor. But my wife,
she was limping in court. She’s very unhealthy. She was denied Mental
Health. I mean, really, you know, I just needed her to get out. I mean, I’m
trying to fight a life sentence. 17 years is a death penalty to me. It’s the
same. I haven’t got a chance to even try to fight as long as she was
standing next to me limping and them telling me, well, if you don’t, she’s
going to get nine years. I was under pressure. When you asked me those
questions, I hesitated to answer, you know. But, you know, she’s my wife.
I’ve been with her for 40 years. I couldn’t see her suffering anymore.

       “I mean, all I’m asking for is a chance to defend myself. We never
discussed no kind of defense. I’ve never been shown any kind of evidence.
All he said—I haven’t received a police report. I’m not saying my attorney
didn’t try to do his job. I’m just saying we never were able to even discuss
the offense. And here I am just willingly accepting a 17-year sentence,
Your Honor. I will be paroled in a pine box, you know.

       “So, yes, I was under pressure. Yes, I was under duress. No, I
wasn’t threatened by the Court. I’m not saying that. I’m not trying to
manipulate nobody, Your Honor. I’m not that smart. But I am smart
enough to know that if you don’t reconsider, it’s a death penalty to me. It’s
a death sentence. 17 years, 85 percent, Your Honor, that’s 15 years from
now. I’ll be 75 should I live.

        “So with that said, Your Honor, I’m just asking for a chance to
withdraw my plea and fight this case. That’s all. All I know about the case
is that it’s been filed on me. And my wife, every time we did come to
court, she was dragging her leg. I mean, she wasn’t receiving her
medications or nothing like that. Like I said, she is a Mental Health patient.
She is not physically healthy, you know. I was trying to help my wife.

       “THE COURT: Alright, sir. The ruling that the Court made is
going to be the final ruling. The Court is going to deny the motion.”
On July 28, 2014, the trial court sentenced defendant to the indicated 17 years.




                                      8
                                      DISCUSSION
       Defendant now contends the trial court abused its discretion by failing to inquire
into the coerciveness of the package deal and conduct the mandatory specialized scrutiny
of the possible coercive factors, as required by In re Ibarra (1983) 34 Cal.3d 277
(Ibarra).2 He maintains that his plea was coerced by the package deal to secure a
favorable sentence for his sick wife and the trial court should have granted his motion to
withdraw the plea.
       The People counter that the trial court conducted a proper inquiry, specifically
asking defendant if anyone had threatened him or promised him anything to get him to
enter into the plea. The People further argue that analysis of the Ibarra and other factors
establishes that defendant’s plea was voluntary.
       A motion to withdraw a plea may be granted if there is good cause. (§ 1018.) “To
establish good cause, it must be shown that defendant was operating under mistake,
ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.]
Other factors overcoming defendant’s free judgment include inadvertence, fraud or
duress.” (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) “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 burden is on the defendant to present clear and convincing evidence the ends
of justice would be subserved by permitting a change of plea to not guilty.” (People v.
Shaw (1998) 64 Cal.App.4th 492, 496.) “‘[T]he 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.] An appellate court will not disturb the denial of a



2     Ibarra was disapproved on another ground in People v. Howard (1992) 1 Cal.4th
1132 at pages 1175 through 1178.


                                              9
motion unless the abuse is clearly demonstrated.” (In re Brown (1973) 9 Cal.3d 679,
685.)
        “It has long been established that guilty pleas obtained through ‘coercion, terror,
inducements, subtle or blatant threats’ are involuntary and violative of due process.”
(Ibarra, supra, 34 Cal.3d at p. 287.) “Such coercion is a particular danger in the
package-deal plea bargain context.” (People v. Sandoval (2006) 140 Cal.App.4th 111,
124-125.) A package deal is an all or nothing proposition; it requires that all
codefendants accept the deal. (Ibarra, supra, at p. 286.) With a package deal,
“[e]xtraneous factors not related to the case or the prosecutor’s business may be brought
into play. For example, a defendant may fear that his wife will be prosecuted and
convicted if he does not plead guilty …. Because such considerations do not bear any
direct relation to whether the defendant himself is guilty, special scrutiny must be
employed to ensure a voluntary plea.” (Id. at p. 287.) “[C]ertain factors may appear to
render a plea pursuant to a ‘package-deal’ bargain coercive, or not coercive, upon close
examination. Because we believe that it is possible for such a plea to be entered without
undue force, we choose not to invalidate all ‘package-deal’ bargains as coercive per se.
Rather, the trial court assumes a duty to conduct an inquiry into the totality of the
circumstances to determine whether, in fact, a plea has been unduly coerced, or is instead
freely and voluntarily given.” (Id. at pp. 287-288, fn. omitted.) Under Ibarra, such an
inquiry is required whenever a package-deal plea is accepted. (Id. at p. 288.)
        Ibarra recited factors relevant to this inquiry: (1) whether the inducement for the
plea was proper, including whether the prosecutor had a reasonable and good faith case
against the third party to whom leniency was promised; (2) whether there was a factual
basis for the guilty plea and the bargained-for sentence was proportionate to the
defendant’s culpability; (3) the nature and degree of the coerciveness; (4) whether the
promise of leniency to a third party was a significant consideration in accepting the deal;
and (5) other factors such as the defendant’s age and experience, the party who initiated

                                              10
the plea negotiations, and whether charges had already been brought against the third
party. (Ibarra, supra, 34 Cal.3d at pp. 288-290.)
       Under the third factor, Ibarra explained: “Psychological pressures sufficient to
indicate an involuntary plea might be present if the third party promised leniency is a
close friend or family member whom the defendant feels compelled to help. ‘[T]he
voluntariness of a plea bargain which contemplates special concessions to another—
especially a sibling or a loved one—bears particular scrutiny by a trial or reviewing court
conscious of the psychological pressures upon an accused such a situation creates.’
[Citation.] If the defendant bears no special relationship to the third party promised
leniency, he may nevertheless feel compelled to plead guilty due to physical threat. For
example, if the third party had made a specific threat against defendant if he refused to
plead guilty, the plea is likely to be involuntary.” (Ibarra, supra, 34 Cal.3d at p. 289.)
       When a trial court fails to inquire into the totality of the circumstances
surrounding a package deal, the defendant’s plea is not invalid per se. (Ibarra, supra,
34 Cal.3d at p. 290.) The plea may not be set aside unless the defendant shows prejudice.
He “must allege and prove that his plea of guilty was involuntary under the standards set
down in [Ibarra] and should not have been accepted by the trial court.” (Ibid.)
       Here, the trial court found that defendant made a knowing and intelligent waiver
of his rights to enter into the plea, but the court did not conduct an adequate inquiry into
the totality of the circumstances by asking about coercive factors. Attempting now to
show prejudice, defendant points to Ibarra’s third and fourth factors. Under the third, he
argues that the package deal was inherently suspect because it secured the release of his
wife of 40 years, who was otherwise facing a nine-year sentence, while allowing the
prosecutor to avoid proving a complex case against defendant that included allegations of
decades-old prior convictions. Under the fourth factor, he argues that his wife’s
imminent release was the main and, arguably, the only factor he considered before
entering the plea. He contends the totality of the circumstances showed by clear and

                                             11
convincing evidence that he felt compelled to secure his wife’s release and entered a
guilty plea for that reason alone, out of duress rather than free will.
       We turn to an examination of the Ibarra factors and any others that appear
relevant to coercion. First, the inducement for the plea was proper. The prosecutor did
not misrepresent the facts and had a reasonable and good faith case against Virginia, to
whom leniency was promised. Virginia was digging through the victims’ trash with
defendant when they contacted the victim and sought information from her; Virginia was
with defendant the next day when he was carrying the victim’s recently stolen jewelry
near the scene of the crime; Virginia admitted to the police that defendant possessed the
stolen jewelry; and then Virginia denied knowing anything about the burglary, claiming
another man had stolen the jewelry. Second, the police report provided an ample factual
basis to which the parties stipulated, thereby establishing a basis for the pleas. The case
against defendant was particularly strong in that he was carrying some of the stolen
jewelry on his person shortly after the burglary and near the victims’ burgled residence.
He produced some of the jewelry for the victim when she confronted him, but he ran
away when she said she wanted all of her jewelry. He first told the police he found the
jewelry in the victims’ trash, then he recanted and said he never found the jewelry. The
plea’s 17-year term was proportionate to defendant’s culpability for a serious felony
because he had a criminal past that included three prior strike convictions, which
mandated a 25-year-to-life Three Strikes sentence if he had proceeded to trial and been
convicted on even one count. Defendant’s age and experience with the criminal justice
system provided him the insight to recognize the benefit of the bargained-for sentence,
which constituted less of a “death sentence” for the 60 year old than the Three Strikes
sentence he would have received if convicted at trial. Third, defendant explained in his
moving papers and in his statement before the trial court that his plea was coerced. He
stated he had accepted the deal only because it provided for his sick wife’s release, and
he would not otherwise have accepted the lengthy 17-year term because it amounted to a

                                              12
“death sentence” for someone his age. As we have explained, however, other factors
strongly suggest that someone in defendant’s position would have considered the 17-year
sentence preferable to the mandatory 25-year-to-life sentence that would have resulted
from a very probable conviction at trial. Thus, although defendant probably did want to
secure his wife’s release, the package deal that provided that benefit to her also secured
for him a more favorable sentence than he would have received if convicted at trial, a
likely outcome considering the strong case against him. Defendant’s claim that
allegations of his prior convictions would be difficult to prove is entirely speculative and
finds no support in the record.
       Based on our review of the relevant factors, we conclude the trial court did not
abuse its discretion in denying defendant’s motion to withdraw his guilty plea. Although
the court could have concluded defendant was motivated to obtain his wife’s release, the
court was also justified in concluding defendant voluntarily agreed to a deal that also
greatly benefitted him.
                                      DISPOSITION
       The judgment is affirmed.




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