Filed 7/13/15 P. v. Carby CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065679

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD250665)

DEVON CARBY,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Charles R.

Gill, Howard H. Shore, and Timothy Walsh, Judges. Affirmed.

         Jeanine G. Strong, by appointment of the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney

General, Eric A. Swenson, Supervising Deputy Attorney General, Lynne G. McGinnis

and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.


         After pleading guilty to robbery and attempted robbery, Devon Carby filed a

motion to withdraw his guilty plea based on his claim that he was under the influence of
drugs when he pled guilty. He argues the trial court should have permitted him to

withdraw his plea because at the change of plea hearing the court failed to inquire about

his drug use and impairment, and the record shows he was impaired when he entered the

guilty plea.

       We hold the court did not err in denying the plea withdrawal motion, and affirm

the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND

                                 Change of Plea Hearing

       In September 2013 defendant was charged with eight offenses arising from

allegations that on March 11, 2013, he committed attempted robbery, and that on March

12, 13, and 16, 2013, he (along with four codefendants) engaged in two incidents

involving a conspiracy, attempted robbery, grand theft, burglary, and robbery.1 On

December 13, 2013, defendant agreed to plead guilty to one count of attempted robbery

and one count of robbery, with an agreement that the remaining charges would be

dismissed and he would receive a sentence of two years eight months. Defendant's four

codefendants also reached plea agreements.

       On his guilty plea form, defendant initialed the box for the statement providing, "I

am entering my plea freely and voluntarily, without fear or threat to me or anyone closely

related to me." (Italics added.) However, he did not initial the box for the statement




1     For purposes of resolving defendant's challenge to the denial of his plea
withdrawal motion, we need not detail the facts underlying these charges.
                                             2
providing, "I am sober and my judgment is not impaired. I have not consumed any drug,

alcohol or narcotic within the past 24 hours." (Italics added.)

       At the change of plea hearing, the court (Judge Howard Shore) queried defendant

and the four codefendants about their plea agreements. The court asked each of them if

they had signed and initialed the guilty plea form; if they wished to give up the various

constitutional rights; if they understood the maximum possible punishment and the

consequences of the plea; and if they understood the charges to which they were pleading

and the sentencing agreement. Defendant answered affirmatively to each of the

questions. When the court asked each of them if they had any questions about the

maximum punishment or the consequences of the plea, defendant answered "No." The

trial court also asked, "Are each of you pleading guilty freely and voluntarily? [¶] Mr.

Carby?" (Italics added.) Defendant answered, "Yes." The court asked each of the other

four defendants to respond to this question, and they each answered yes. The court then

asked the defense attorneys if they had enough time to review the forms with their clients

and were satisfied the client understood the nature of the charges and consequences of the

plea and the constitutional rights being waived. Defendant's counsel, as well as the other

four counsel, answered affirmatively.

       When reviewing the factual bases for the pleas, the court set forth the facts

pertaining to defendant's offenses, and then asked defendant, "Are those the facts on

which your guilty plea is based, Mr. Carby?" Defendant responded, "I'm not sure. I

guess." The court stated he needed to "be sure"; asked if he wanted to "think about it";

and reiterated that he was pleading guilty to attempted robbery and to robbery which

                                             3
meant "an attempt to take property by force or fear" and "taking of property from

someone's immediate presence by force or fear." Defendant again said, "I guess so," and

the court told him the question required a "yes" or a "no" answer. Defendant then said,

"Yes."

         After completing this process with the four codefendants, the court then turned to

the specific charges to which the defendants were pleading. The court asked defendant

whether he pled guilty or not guilty to the attempted robbery charge, and defendant

responded, "Not guilty." The court queried, "You sure?" and defendant answered, "Yes."

The court then reminded defendant that he was "being given a deal for two years, eight

months" whereas he was facing 16 years eight months if he was convicted of the charges,

and stated "I want to make sure you understand that. I personally don't care. I don't work

on commission. If I'm not doing this case, I'll be doing something else. You're the one

who has to decide between two years and 16 years." Defendant then responded, "Guilty."

Then court then asked defendant if he was pleading guilty or not guilty to the robbery

charge, and defendant said, "Guilty." The court questioned the remaining four defendants

about the particular charges to which they were pleading. At the conclusion of the court's

questioning, the prosecutor requested that the court ask each defendant if they were

knowingly, intelligently, and voluntarily entering their plea. The court responded that its

questions were for the purpose of making that determination; this statement is included

on the guilty plea form; and it found the defendants' waivers were knowing, intelligent

and voluntary.



                                              4
                           Motion To Withdraw the Guilty Plea

       On January 13, 2014, the date set for sentencing, defendant informed the court he

wanted to withdraw his guilty plea. The court ordered the appointment of new counsel,

and set the matter for hearing. In his plea withdrawal motion filed on February 26, 2014,

defendant claimed that on the day of his plea a jail inmate gave him a "morphine pill"; he

took the pill to "calm [himself] down"; he was "under the influence of that medicine in

court that morning"; and he did not "fully understand the proceedings or enter his plea

knowingly."

       With defendant's agreement, the plea withdrawal motion was heard by a different

judge (Judge Charles Gill) than the judge who presided over the change of plea hearing

(due to the latter's unavailability). At the hearing on March 12, 2014, the court reviewed

the change of plea form and the transcript of the change of plea hearing, and heard

testimony from defendant and from the attorney (Dennis Lainez) who represented

defendant when he entered his plea.

Attorney Lainez's Testimony

       Attorney Lainez testified that on the morning defendant changed his plea, the case

was set for a preliminary hearing before Judge Timothy Walsh at about 8:15 a.m. That

morning the other four defendants had indicated they wanted to plead guilty. While in

Judge Walsh's department, for about 30 minutes Attorney Lainez moved back and forth

between defendant, the prosecutor, and defendant's family discussing a new plea offer the

prosecution had made that morning. When on the record, Judge Walsh advised defendant

of the maximum penalty he would face if he declined the prosecution's offer.

                                             5
       At about 9:45 or 10:00 a.m., defendant decided he wanted a preliminary hearing

and the case was moved to Judge Shore's department. Attorney Lainez again spoke with

defendant in Judge Shore's department, and at this point defendant was "waffling back

and forth" on whether to take the plea offer or proceed with the preliminary hearing.

Lainez explained that defendant was "frustrated by the way things were turning out"

because he felt he was being treated unfairly compared to the other defendants in that the

others were getting more lenient dispositions. While they were in Judge Shore's

department, the deputy district attorney met with defendant and Lainez, discussed the

maximum penalties, and asked defendant to consider his family in making his decision

about what he wanted to do.

       Once defendant decided to accept the plea offer, Attorney Lainez reviewed the

change of plea form with him and asked him to initial the boxes. Defendant appeared to

understand and follow along with what he was saying, and defendant signed the plea

form. Attorney Lainez testified it was his custom to have his clients initial each relevant

box, and he acknowledged he should have paid attention to the box on defendant's form

that addressed drug consumption and impairment. Defendant entered his guilty plea at

about 11:19 a.m., which was about three hours after his court proceedings had

commenced that morning.

       Attorney Lainez testified that while they were in Judge Shore's department,

defendant told him that he had taken some medication. When Attorney Lainez queried

him further about this, defendant said he had taken one "dilantin" pill. Lainez ascertained

the medication was not given to him by the jail and thus there would be no

                                             6
documentation to confirm this. Lainez might have informed the deputy district attorney

about defendant's claim that he had taken the medication, and he may also have told the

court clerk, although he was not sure.

       Attorney Lainez testified he pays attention to whether his clients are under the

influence when considering a change of plea, and he observes whether there are any

differences or "real drastic change[s]" from other interactions. Defendant's demeanor on

the morning that he changed his plea seemed consistent with his demeanor on other

occasions. Lainez stated "there was nothing about [defendant] on that particular day that

made [Lainez] concerned about his competency," and it did not appear that defendant

was under the influence of any medication. Lainez elaborated that if he had felt

defendant did not understand "what was going on" or if he thought "there was anything

other than just a delaying tactic," he would have either asked for a continuance or

declared defendant's incompetency, and it was not his "practice to make people plead

guilty when they are under the influence."

       Lainez did not recall defendant telling Judge Shore that he took a morphine pill or

that he was under the influence, and he did not observe any interactions between Judge

Shore and defendant that caused him concern that defendant was possibly under the

influence to the point that he did not know what he was doing. He recalled defendant

talking about how unfair he thought the plea offer was and he did not want to go forward

with it, and Judge Shore told him, " 'You don't have to take it,' " and then ultimately

defendant accepted the plea offer.



                                              7
         Attorney Lainez acknowledged that on the morning of his guilty plea, defendant

seemed "nervous and anxious." Lainez explained that defendant could not understand

why the other defendants were being treated more leniently, and Lainez's explanations to

him about his "level of involvement" and "previous convictions" did not seem to make a

difference. Lainez testified that although defendant may have been confused about the

way he was being treated as compared to the other defendants, he did not seem confused

about the proceedings or "what was going on."

Defendant's Testimony

         At the plea withdrawal hearing, defendant was questioned at some length about his

recollections of the proceedings on the morning he entered his guilty plea. Defendant

recalled being in the two courtrooms that morning, first with Judge Walsh and then with

Judge Shore. He remembered Judge Walsh talking to him about whether he wanted to go

forward with the preliminary hearing or plead guilty, and discussing his maximum

exposure if he did not plead guilty. Defendant testified that Judge Walsh told him he

could talk to his attorney again for a few minutes, and his attorney "just told me I better

sign."

         Defendant remembered that when they were in the second courtroom, the deputy

district attorney sat down with him and his attorney and told him what his maximum

penalty would be. According to defendant, the deputy district attorney stated, "she didn't

want to give me max because my family was there and I should . . . sign the plea."

Defendant testified his attorney told him to sign the guilty plea form; he initialed boxes



                                              8
on the form; and he had no recollection concerning his failure to initial the box

concerning drug use and impairment.

       Defendant recalled that in the second courtroom Judge Shore asked him questions

when reviewing the change of plea form. When asked if he recalled Judge Shore reading

about the various constitutional rights he was giving up, defendant responded,

"Everything was going so fast, I don't remember all of those words."

       When queried about his drug use that morning, defendant stated he took the

morphine pill about one hour before he went to court; he took it to "calm [his] nerves";

and the pill made him feel "more high than anything." He testified he told Attorney

Lainez that he took a pill and that he "was not in the right state of mind at the time," and

Lainez responded that he "was lying" and he needed "to go forward with this." Attorney

Lainez also talked to defendant's family, and Lainez then relayed a message to him that

his family said he "should take the plea bargain." Defendant testified he was "more under

duress than anything"; he was under the influence of morphine; and he was not certain

that day whether or not he wanted to plead guilty.

       Defendant claimed he also told the deputy district attorney that he had taken a

morphine pill, but acknowledged he did not say anything to either Judge Walsh or Judge

Shore about this.

Trial Court's Denial of Plea Withdrawal Motion

       Defense counsel argued that under the totality of circumstances the court should

grant the plea withdrawal motion. Counsel stated it was likely defendant ingested

narcotics; the box on the guilty plea form addressing drug use and impairment was not

                                              9
initialed; defendant told his attorney about his drug ingestion and his attorney may have

alerted the prosecutor; this concern was not brought forward and acknowledged at the

time of his guilty plea; and particularly in a multi-defendant situation a defendant can be

pressured and confused and not have the volition to enter a guilty plea.

        In opposition, the prosecutor argued defendant's statements and behavior during

the proceedings on the morning he entered his plea, including his initial decision to reject

the plea offer and have a preliminary hearing, indicated he was aware of the

consequences he faced and was exercising judgment. Further, when he changed his mind

and decided to take the plea offer, he again exercised his judgment; he did not tell the

judge he was under the influence; he answered the judge's questions; the judge discussed

the plea form with him; and the judge found he knowingly and voluntarily entered his

plea.

        The trial court ruled defendant had not shown he was incapacitated to the extent

that he could not make a knowing, intelligent, and voluntary waiver of his constitutional

rights and plead guilty. The court stated that it could "appreciate and understand" that the

box concerning drug use and impairment was not initialed, and that there was no direct

questioning during the change of plea hearing regarding the ingestion of drugs.

However, the court found defendant's testimony during the current plea withdrawal

hearing lacked credibility and Attorney Lainez's testimony was credible.

        The court stated the mere fact defendant may have ingested the medication did not

show good cause for plea withdrawal; rather, the question was whether he was so

impaired that he could not make a knowing and voluntary waiver of his rights. The court

                                             10
found that even if he took the medication, the evidence did not show he did not make a

knowing, intelligent, and voluntary waiver.

                                      DISCUSSION

       Defendant argues the trial court abused its discretion in denying his plea

withdrawal motion because the evidence showed that at the time he pled guilty he was

under the influence of the morphine, and at his change of plea hearing the trial court

failed to make an adequate inquiry concerning this matter.

                                      Governing Law

       "When a criminal defendant enters a guilty plea, the trial court is required to

ensure that the plea is knowing and voluntary." (People v. Cross (2015) 61 Cal.4th 164,

170.) The trial court should "cause an inquiry to be made of the defendant to satisfy itself

that the plea is freely and voluntarily made . . . ." (Pen. Code, § 1192.5; People v. Palmer

(2013) 58 Cal.4th 110, 112.) "The purpose of the 'knowing and voluntary' inquiry . . . is

to determine whether the defendant actually does understand the significance and

consequences of a particular decision and whether the decision is uncoerced." (Godinez

v. Moran (1993) 509 U.S. 389, 401, fn. 12, italics omitted.)

       A defendant seeking to withdraw a guilty plea must show there were

circumstances overcoming his or her exercise of free judgment. (People v. Ravaux

(2006) 142 Cal.App.4th 914, 917; Pen. Code, § 1018.) A defendant's ingestion of drugs

does not alone show a plea is involuntary; rather, "there must be some evidence that the

medication [has] affected his rationality." (Carey v. United States (1st Cir. 1995) 50 F.3d

1097, 1099; Oliver v. State (Utah 2006) 147 P.3d 410, 412.) When evaluating the

                                              11
voluntariness of a plea, a trial court is not required in every case to inquire about drug or

alcohol use. (Carey, supra, 50 F.3d at p. 1099 [court not required to make inquiry

regarding drug use where there was no suggestion "defendant was not in complete

command of his faculties"].) However, when a trial court is informed the defendant has

recently ingested a substance capable of impairing the ability to make knowing and

voluntary decisions, the trial court should question the defendant " 'with a view to

assessing the impact of the ingested substances on the defendant's capacity to understand

the change-of-plea process and intelligently determine a proper course of action.' "

(Ibid.)

          Deficiencies in the trial court's inquiries at the time the plea was entered do not

mandate plea withdrawal if the record affirmatively shows a knowing and voluntary plea.

(See People v. Cross, supra, 61 Cal.4th at pp. 171, 179.) A trial court may properly

decline a plea withdrawal motion based on a claim of drug ingestion if the evidence

shows the defendant "was not impaired to the point that his independent judgment was

overcome at the time he entered the guilty plea." (People v. Ravaux, supra, 142

Cal.App.4th at p. 918.) On the other hand, a defendant is entitled to withdraw his plea if

" 'he proved that his mental faculties were so impaired by drugs when he pleaded that he

was incapable of full understanding and appreciation of the charges against him, of

comprehending his constitutional rights and of realizing the consequences of his plea.' "

(Oliver v. State, supra, 147 P.3d at p. 413.)

          On appeal from the denial of a plea withdrawal motion, we defer to the trial court's

credibility resolutions and factual findings if supported by substantial evidence. (People

                                                12
v. Fairbank (1997) 16 Cal.4th 1223, 1254; People v. Ravaux, supra, 142 Cal.App.4th at

pp. 917-918.) The relevant inquiry is "whether the defendant's [guilty plea] was

intelligent and voluntary in light of the totality of the circumstances." (People v. Mosby

(2004) 33 Cal.4th 353, 361.)

                                         Analysis

       Assuming defendant ingested a morphine pill on the morning he pled guilty, the

record nevertheless shows that he knowingly and voluntarily participated in the

proceedings and exercised judgment about pleading guilty. The attorney who represented

defendant on the morning of his guilty plea (Attorney Lainez) had previous contact with

him and was familiar with his demeanor; Lainez interacted with him for a three-hour

period during the morning of his plea; and Lainez observed no signs that he was under

the influence or having difficulty comprehending what was occurring. The trial court at

the plea withdrawal hearing credited Lainez's testimony on this point, and we defer to this

credibility finding.

       Further, when defendant testified at the plea withdrawal hearing, he acknowledged

his understanding of numerous matters relevant to the proceedings on the morning that he

entered his plea. He remembered that he appeared before two different judges (Judges

Walsh and Shore); they were discussing whether he wanted to go forward with the

preliminary hearing or accept the plea offer; and Judge Walsh and the deputy district

attorney discussed with him the maximum exposure he would face if he did not accept

the plea offer. Defendant recalled that his attorney told him that he should sign and

communicated a message from his family that he should accept the plea offer. This

                                            13
testimony reflects that his rational faculties were functioning during the proceedings

when the plea bargain was being discussed; i.e., he understood he could go forward with

a preliminary hearing and did not need to plead guilty; he faced a potentially longer

sentence if he did not accept the plea offer; and even though other people wanted him to

accept the plea offer (i.e., his attorney and family) it was his choice. Also, Attorney

Lainez described how defendant first elected to have a preliminary hearing and then

changed his mind, and explained that defendant was not certain he wanted to take the

plea because he felt he was being treated unfairly as compared to the other defendants.

These demonstrations of defendant's cognitive processing support the trial court's

findings that defendant's claim of mental impairment at the time he changed his plea was

not credible, whereas Lainez's observations of mental awareness were credible.

       Certainly it would have been preferable for the court at the change of plea hearing

to have asked defendant why he did not initial the box concerning drug consumption and

impairment. However, any deficiency in this regard was harmless beyond a reasonable

doubt. As set forth above, the totality of the circumstances shows defendant participated

in a rational manner in the proceedings on the morning he changed his plea, including

first exercising his right to have a preliminary hearing and then upon further discussion

changing his mind; expressing his concerns about his codefendants' receipt of more

lenient sentences; and listening to the advisements concerning his maximum exposure

should he reject the plea offer. At the plea withdrawal hearing, his counsel affirmatively

described how he saw no problems with defendant's demeanor or mental functioning

during the three-hour period, and defendant's own testimony at the plea withdrawal

                                             14
hearing reflected his awareness of what occurred during the proceedings on the morning

he entered his plea.

       In support of his claim that he should be permitted to withdraw his plea, defendant

points to the instances during the change of plea hearing when he failed to answer the

court's questions in a straightforward manner; for example, when he first said "I'm not

sure," "I guess" when asked about the factual basis for his plea, and when he first said

"Not guilty" when asked how he was pleading to one of the charges. Under the totality of

circumstances, these responses suggest defendant's ongoing ambivalence and reluctance

to plead guilty, but they do not rise to the level of showing he was unaware or confused

about the proceedings so as to affect the knowing and voluntary nature of his plea. (See

People v. Huricks (1995) 32 Cal.App.4th 1201, 1208-1209 [reluctance or vacillation does

not alone show involuntary plea].) Ultimately, defendant answered these questions in a

clear manner. Considering the overall active nature of defendant's participation in the

change of plea proceedings and the contents of his testimony at the plea withdrawal

hearing, the record reflects he understood what was occurring and could exercise

judgment.2




2      Defendant also points to the fact that during the change of plea hearing the court
asked him if his maximum exposure under the plea agreement was "58 months" and
defendant responded "Yes," whereas in fact the maximum exposure was five years eight
months. The guilty plea form erroneously stated "58 months," and after defense counsel
pointed out this clerical error at the change of plea hearing, the trial court corrected it,
again queried defendant, and defendant again answered "Yes." Defendant's affirmative
response concerning the "58 months" does not alone reflect he was impaired when
considering all the other evidence showing he was mentally aware.
                                             15
       Defendant also notes that at the conclusion of the change of plea hearing when the

prosecutor requested that the court ask each defendant if he was entering his plea

knowingly and voluntarily, the court declined to do so. This does not show error. The

trial court made this precise inquiry at the commencement of the change of plea hearing,

and defendant answered affirmatively.

       The court did not err in denying defendant's plea withdrawal motion.

                                     DISPOSITION

       The judgment is affirmed.




                                                                              HALLER, J.

WE CONCUR:



BENKE, Acting P. J.



NARES, J.




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