Filed 9/6/13 P. v.Thompson CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D061766

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD235417)

JOSEPH EMMANUELL THOMPSON,

         Defendant and Appellant.


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

Gill, Judge. Affirmed.



         Julie Feldstein Puleo for the Defendant and Appellant under appointment by the

Court of Appeal.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Assistant

Attorneys General, William M. Wood, Ifeolu E. Hassan, Deputy Attorneys General for

the Plaintiff and Respondent.
       Joseph Emmannuell Thompson pleaded guilty to receiving stolen property (Pen.

Code,1 § 496d), and now appeals the denial of his motion to withdraw his plea.

Thompson contends the court abused its discretion in denying the motion because (1) his

plea was coerced and offered as a package deal with that of his codefendant brother,

Michael Thompson;2 and (2) he received ineffective assistance of counsel, who failed to

advise him fully of the consequences of his plea and improperly negotiated it in the

presence of Michael and Michael's counsel. We affirm the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND3

       In June 2011, two detectives assigned to a San Diego County regional task force

conducted an operation to investigate auto theft. The detectives met with Thompson,

Michael, and Miguel Lange to arrange the purchase of stolen motorcycles that Lange said

were stored at Michael's residence. Thompson was within hearing range when Lange

said this. During the meeting, a detective overheard Thompson arguing with Lange about

his payment. The detective testified at the grand jury proceedings that participants in

auto theft schemes commonly demand payment during a sale.

       During grand jury proceedings, the prosecutor asked a detective whether

Thompson had aided, promoted or facilitated the sale of the two motorcycles. The

detective responded in the affirmative, explaining that Thompson drove the pickup that


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

2      We will refer to Michael Thompson by his first name to avoid confusion.

3      We rely on the grand jury transcript for the facts regarding the crimes.
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delivered the motorcycles, accepted the detective's money, admitted selling items that he

had stolen from nonprofit organizations, and offered to sell stereo equipment to the

detective.

       In August 2011, the grand jury indicted Thompson, Michael, and Lange for

unlawful taking and driving of a vehicle (Veh. Code, § 10851 subd. (a)), and selling a

stolen vehicle (Pen. Code, § 496d).

       In October 2011, the prosecutor negotiated a package deal for Thompson and

Michael. On Thompson's plea form, he pleaded guilty to "wrongfully aid[ing] and

abett[ing] another in the possession of a stolen vehicle." The plea form also documents

the prosecutor's offer and the court's indicated sentence: "Dismiss balance [of charges].

N.O.L.T. Court in chambers commits to felony court probation." The court reviewed the

plea with Thompson, confirmed he understood his rights, and accepted his plea. The

court asked Thompson, "Do you understand that by pleading guilty, the maximum

penalty that can be imposed is three years imprisonment, a fine of up to $10,000, being

placed on parole for up to four years?" Thompson replied, "Yes, sir, I do." The court

then asked, "Mr. Thompson, you've been charged . . . with buying, receiving, concealing,

selling or withholding a stolen vehicle . . . . How do you plead to that charge?"

Thompson replied, "I plead guilty, your honor."

       At a February 2012 hearing, Thompson moved to withdraw his plea and replace

his counsel. Thompson alleged in his declaration supporting his motion that during plea

negotiations, his attorney and Michael's attorney sat on either side of him and

"bombarded [him] with a guilt trip about [his] brother's case and how [he] needed to save

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[his] brother from spending 25 to life in prison," and instead get his brother a "[five]-year

deal." Thompson testified that "it was [his] understanding that the only way through this

was for [him] to take a plea and for [his] brother to take a plea." Thompson explained

that during plea negotiations he was told that a videotape showed he did not steal the

motorcycles. However, he continued, "[B]ecause of my past [criminal] record and

because I did deliver the motorcycles that that would be the question" if the matter

proceeded to trial. According to Thompson, his attorney failed to explain: "what

evidence the prosecutor would have to present at trial to establish that [Thompson] aided

and abetted the theft by [his] brother"; "that [Thompson] had defenses to the charges";

and that the acronym N.O.L.T.—not opposed to local time—meant a defendant may

spend more time in custody.

       Thompson's attorney testified at the motion hearing: "I made notes of our

discussion. . . . And I see where I said to him 'NOLT, in caps, as an acronym.' It doesn't

say in my notes that I then said, 'Here's how it breaks down,' but I can tell you that my

standard protocol is to be very, well, pedantic, really, about it. I say, 'This is an acronym,

N-O-L-T, not opposed to local time.' And I usually go through that little song and dance

with them so they do understand it. [¶] Mr. Thompson seemed a little more savvy to the

lingo, so in his case I might not have—it's possible, I don't think I would have done that,

but it could have happened."

       The court denied Thompson's motion, stating: "There has been no credible

evidence . . . to show good cause to allow Mr. Thompson to withdraw his plea. . . . I

believe at the time the plea was taken Mr. Thompson fully understood his rights, he

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voluntarily waived those rights, and he pled guilty to the charge. I believe there wasn't

any coercion or confusion, and there was no evidence to support that in fact there was."

The court sentenced Thompson to three years summary felony probation.

                                       DISCUSSION

                                              I.

       Thompson contends the court abused its discretion by denying his motion to

withdraw his guilty plea, which was not knowing, voluntary, and intelligent because his

attorney, his brother, and his brother's attorney coerced him into accepting the package

deal, and he did not understand the meaning of "N.O.L.T." We review a trial court's

decision to deny a motion to withdraw a guilty plea for abuse of discretion. (People v.

Holmes (2004) 32 Cal.4th 432, 442.)

       The California Supreme Court has held that a package deal "is not intrinsically

coercive, [but] it may be so under the individual circumstances. Unless counsel was

aware of particular coercive forces, the decision to urge his client to accept such a plea

bargain would be untainted." (In re Ibarra (1983) 34 Cal.3d 277, 283-284 (Ibarra),

disapproved on other grounds in People v. Howard (1992) 1 Cal.4th 1132, 1175-1178.)

The Ibarra court's four nonexclusive factors for determining whether a defendant freely,

voluntarily, and intelligently agreed to a package deal are: (1) whether the inducement

for the plea was proper; (2) the factual basis for the plea; (3) the nature and degree of

coerciveness; and (4) any other relevant factors, including whether the prosecutor's

leniency to the codefendant substantially influenced the defendant's decision to plead

guilty. (Ibarra, at pp. 289-290.)

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       Applying these factors, we conclude the trial court did not abuse its discretion.

First, the inducement for the plea was proper because the grand jury testimony supported

the prosecution's charges against Thompson. Furthermore, the prosecution had a

"reasonable and good faith case against" Michael. (Ibarra, supra, 34 Cal.3d at p. 289.)

The evidence showed Michael played a more substantial role in the crimes than

Thompson. Thompson does not contend the prosecution misrepresented or withheld facts

germane to his decision to plead guilty. We conclude the first factor does not support

withdrawal of the plea.

       Second, the detectives' grand jury testimony provided a strong factual basis for a

conviction; therefore, Thompson had an incentive to accept the plea. Thompson was

present at the meeting between the codefendants and detectives, and sought payment on

the spot. Thompson offered to sell the detectives other stolen property. Additionally, the

prosecution's lenient offer was that Thompson serve probation rather than the maximum

sentence of three years in prison. We conclude this factor weighs against withdrawal of

Thompson's plea.

       Third, we accept at face value Thompson's claim that the presence of Michael and

his counsel during Thompson's plea negotiations influenced Thompson's decision to

accept the guilty plea. Thus we conclude this factor weighs in Thompson's favor.

       Fourth, in evaluating whether the prosecutor's leniency to the codefendant was a

"substantial factor" influencing his decision to plead guilty, we think this factor weighs in

Thompson's favor based on his claim that his brother's lawyer and his own lawyer



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"bombarded him with a guilt trip" about saving his brother from having to spend 25 years

to life in prison and instead, get his brother a five-year sentence.

         But Ibarra also instructs us that "Other factors, which may be relevant can and

should be taken into account at the inquiry. For example, the age of the defendant, . . .

whether the defendant or the prosecutor initiated the plea negotiations." (Ibarra, supra,

34 Cal.3d at p. 290.) In that regard, we note that Thompson was 54 years old when he

changed his plea. Further, his counsel indicated that Thompson was familiar with the

process of plea bargains, noting that Thompson "seemed a little more savvy to the lingo."

Indeed, Thompson has a long criminal record dating from 1979, and it includes plea

bargains. Moreover, when the trial court accepted the plea, it specifically asked

Thompson whether anyone had threatened him into taking the deal. Thompson answered

in the negative. Finally, Thompson had other motives that could have influenced him to

plead guilty; specifically, his concern that his criminal record would be a detriment at

trial.

         Under the totality of the circumstances, we conclude the trial court did not abuse

its discretion in denying Thompson's motion to withdraw his guilty plea. Although we

grant Thompson the benefit of his claims that the presence of Michael and Michael's

counsel factored into his decision to accept the plea, and that the promised leniency to his

brother was a significant consideration in his accepting the guilty plea, other factors

outweigh those considerations and support the trial court's exercise of its discretion to

deny the withdrawal motion.



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                                             II.

       Thompson contends his attorney provided constitutionally ineffective assistance

because Thompson did not understand the meaning of "N.O.L.T." and his attorney only

met with him twice, then pressured him to accept the plea bargain.

       To prove ineffective assistance of counsel, a criminal defendant must show the

attorney's performance did not meet an objective standard of reasonableness under

prevailing professional norms; and the deficient performance prejudiced the defendant.

(Strickland v. Washington (1984) 466 U.S. 668, 691-692 (Strickland); see also People v.

Ledesma (1987) 43 Cal.3d 171, 214-218.) "If counsel's acts or omissions appear to result

in defendant's entering a plea under the influence of 'mistake, ignorance or inadvertence

or any other factor overreaching defendant's free and clear judgment' which would justify

withdrawal of his plea, he was ineffectively represented by counsel." (People v. Hunt

(1985) 174 Cal.App.3d 95, 104.) "[A] court need not determine whether counsel's

performance was deficient before examining the prejudice suffered by the defendant as a

result of the alleged deficiencies." (Strickland, supra, 466 U.S. at p. 697.)

       Additionally, "[A] reviewing court must adopt the trial court's factual findings if

substantial evidence supports them." (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)

The trial court found "no credible evidence . . . to show good cause to allow Mr.

Thompson to withdraw his plea." We conclude that substantial evidence shows

Thompson knowingly, voluntarily, and intelligently agreed to the plea bargain:

Thompson indicated that he understood his rights when the court accepted the plea.

When he alleged coercion at the second hearing regarding withdrawal, he did not ask

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about "N.O.L.T." until after signing the plea deal. Further, he did not establish that his

attorney had failed to advise him of the meaning of N.O.L.T. Accordingly, assuming

Thompson's attorney had provided ineffective assistance, Thompson cannot show

prejudice under Strickland.

       "In determining whether or not a defendant who has pled guilty would have

insisted on proceeding to trial had he received competent advice, an appellate court also

may consider the probable outcome of any trial, to the extent that may be discerned." (In

re Resendiz (2001) 25 Cal.4th 230, 254.) If Thompson had elected to proceed to trial and

made out a valid claim, he could have obtained severance of his case from his brother's

case. Moreover, if Thompson had declined the plea bargain and proceeded to trial, he

likely would have been convicted of aiding and abetting the theft of the motorcycles,

based on the strong evidence against him, as noted. Finally, the record shows Thompson

recognized that his criminal history would have undermined his credibility in a trial.

Therefore, on this record, Thompson fails to persuade us that, absent his counsel's

challenged actions, it is reasonably probable Thompson would have forgone the lenient

plea agreement in favor of proceeding to trial.




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                                  DISPOSITION

      The judgment is affirmed.




                                                O'ROURKE, J.

WE CONCUR:


HALLER, Acting P. J.


AARON, J.




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