People v. Garza, H031612 (Cal. App. 6/23/2009)

• Decision Date: 23 June 2009
• Docket Number: H031612
• Parties: THE PEOPLE, Plaintiff and Respondent, v. PAUL DIAZ GARZA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. PAUL DIAZ GARZA, Defendant and Appellant.

H031612

Court of Appeals of California, Sixth Appellate District

June 23, 2009

Not to be Published in Official Reports

Appeal from the Santa Clara County, Super. Ct. No. CC504216.

RUSHING, P.J.

Defendant Paul Diaz Garza was sentenced to 30 years in prison based on a plea of no contest to four counts of sexually abusing his preadolescent stepdaughter. The trial court accepted his plea without conducting any inquiry into the confusion and uncertainty exhibited by him throughout the hearing at which the plea was entered. It also denied his prejudgment motion to withdraw the plea, despite undisputed testimony that he has an IQ in the mid-60's, that his greatest cognitive weaknesses lie in precisely those areas touching most intimately on his comprehension of the matters affected by the plea, that he at no time affirmatively conveyed a comprehension of the plea to his attorney, and that the attorney considered his understanding to be "fleeting" at best. We hold that the resulting record fails as a matter of law to supply the required affirmative showing that defendant made the voluntary and intelligent waiver of rights required for a valid guilty plea. We will therefore reverse the judgment of conviction.

BACKGROUND

Defendant was charged by complaint with four counts of aggravated sexual assault (Pen. Code, § 269) upon his stepdaughter, "Jane Doe," a child under 14 years of age and more than 10 years his junior. The predicate acts for the charges were two instances of oral copulation by means of force or duress (Pen. Code, §§ 269, subd. (a)(4); 288a, subd. (c)(2)), one instance of rape (Pen. Code, §§ 269, subd. (a)(1); 261, subd. (a)(2)), and one instance of sodomy by means of force or duress (Pen. Code, §§ 269, subd. (a)(3); 286, subd. (c)(2)). Each count carried a maximum sentence of 15 years to life, to be served consecutively insofar as the offenses were committed on separate occasions. (Pen. Code, § 269, subds. (b), (c).)

On the date set for preliminary hearing, defendant appeared with retained counsel, Marc Eisenhart, who told the court he was "authorized to proceed with a change of plea."¹ Prosecuting attorney Troy Benson told the court that defendant had agreed to admit guilt on four counts of lewd and lascivious acts upon a child under 14 by force, violence, menace, duress, or fear (Pen. Code, § 288, subd. (b)(1)), with three of the counts to carry the upper term of eight years, and the fourth the mid-term of six years. The offenses would be deemed to have occurred on separate occasions so as to produce full consecutive sentences (see Pen. Code, § 667.6, subd. (d)). The result would be an agreed sentence of 30 years. At the time of the plea defendant was a few months past his 50th birthday.

The prosecutor then undertook to prepare, in open court, handwritten amended charges to which defendant would plead. This proceeded in fits and starts as the charges were revised, first to allege four successive date ranges and then to modify the ranges to correspond to the victim's birthday. The record contains no amended pleading setting forth the charges to which defendant ultimately pled. However, after the charges were amended to the prosecutor's satisfaction, the court summarized them on the record.

The court then undertook a lengthy "voir dire" of defendant, which culminated in formal waivers of his trial rights. The court recited the four amended charges, asking defendant as to each, "How do you plead . . . ?" and securing the answer, "No contest." The court also secured an affirmation that defendant was "pleading no contest today of [his] own free will." The court declared, "I find that there's a factual basis for the plea. I further find that the plea was made and waivers were made knowingly, intelligently, and voluntarily." The court scheduled sentencing for about two months later.

About a month after the hearing, attorney Eisenhart wrote to the court and the prosecutor stating that he had "received . . . a written communication from my client dismissing me as his counsel and requesting to have his case transferred to a Public Defender for the purpose of withdrawing his plea." The court eventually relieved Eisenhart, appointed the Public Defender's office, and granted a defense motion to appoint a psychologist, Ubaldo Sanchez, Ph.D., to examine defendant in order to assist defense counsel in determining whether defendant had "a legal basis to withdraw a plea based on incompetence at the time of the plea and to determine if he is competent at the present time."

About seven months after the change of plea, Dr. Sanchez evaluated defendant. He found defendant to have an overall IQ of 67 and to be "currently functioning in the mentally retarded range of measured intelligence." Defendant exhibited "[n]o relative cognitive strengths," but exhibited "relative cognitive weaknesses" in the areas of "verbal intelligence; conceptual thinking; numeric manipulation; immediate auditory recollection; general knowledge; social judgment, common sense, reality awareness, judgment in practical situations, and insight into social rules, convention, and nuances; in his ability to differentiate between essential and non-essential details. . . . Additional weaknesses lie in his capacity for sustained effort, attention, concentration and mental efficiency; and in his ability to view, evaluate and chronicle a situation and its implications." However, he concluded, defendant was "able to understand the nature of the proceedings taken against him and assist counsel in a rational manner in his defense. He does have a basic understanding of the court system. He is able to understand provided explanations are made in simple terms."

The defense filed a motion to withdraw the no-contest plea and enter a plea of not guilty. In addition to presenting Dr. Sanchez's report, the supporting memorandum noted that in the plea-taking hearing defendant "seemed confused on at least four occasions and conferred with his private attorney on numerous occasions . . . ." It recited among other things that when defendant first met with his public defender, he "indicated that he was innocent of the charges and that he only entered guilty pleas because his private attorney pressured him and rushed him through the plea."

The prosecutor filed written opposition, arguing that the plea bargain benefited defendant by giving him "a savings of at least 30 years." Citing the plea-taking transcript, he contended that defendant was "informed of the nature of the charges" and "advised of all of his rights and possible consequences . . . ." He noted the absence of any claim that defendant is an "idiot" so as to be incapable of bearing criminal responsibility (see Pen. Code, § 26) or that he was not competent to stand trial. He contended that the question was vested in the court's discretion and that to justify withdrawal of the plea, defendant had to demonstrate good cause by clear and convincing evidence. He urged the court to "consider the rights of the People," meaning "not only . . . the inconvenience and expense to the state . . . but the trauma that will be caused to the young victim if she were to have to relive the process of the criminal justice system again."²

The court conducted a hearing at which it received the testimony of defendant, Attorney Eisenhart, Dr. Sanchez, and defendant's former wife, Gloria Garza. At the conclusion of the hearing, the court noted the absence of any authority declaring that "because someone has significant subaverage intelligence that they are—they per se don't understand the proceedings." The court opined that defendant "may have been slow, . . . and had to have things repeated, but eventually he did seem to understand them, and I believe that the transcript [of the plea-taking] bears that out." The court found the transcript to be "replete with occasions where [defendant] asked questions when he didn't understand anything . . . ." The court viewed Dr. Sanchez's report to mean that "the defendant is slow, but he's able to make choices that are important in his life, and that's what happened on this occasion." Accordingly, the court denied the motion, finding that the defense had not "met the burden here of showing that the defendant didn't understand by clear and convincing evidence." The court also rejected a defense argument that imposition of the upper term was barred by the absence of a jury finding of aggravating circumstances. It then imposed the agreed sentence of 30 years' imprisonment.

Defendant filed a timely notice of appeal, securing a certificate of probable cause. (See Pen. Code, § 1237.5.) The notice and certificate referred to both the entry of the plea and the denial of the motion to permit its withdrawal.

DISCUSSION

I. Guilty Pleas—Principles and Review

For all relevant purposes, defendant's no-contest plea was equivalent to a guilty plea. (Pen. Code, § 1016, subd. (3); 4 Witkin, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings, § 260, p. 468.) A guilty plea effects a waiver of "the fundamental constitutional rights that accompany a trial," and as such "must be knowing, intelligent and voluntary . . . ." (People v. Collins (2001) 26 Cal.4th 297, 308 (Collins); see Bradshaw v. Stumpf (2005) 545 U.S. 175, 183 (Bradshaw), quoting Brady v. United States (1970) 397 U.S. 742, 748 ["A guilty plea operates as a waiver of important rights, and is valid only if done voluntarily, knowingly, and intelligently, `with sufficient awareness of the relevant circumstances and likely consequences.' "]; North Carolina v. Alford (1970) 400 U.S. 25, 31 [plea is valid if it "represents a voluntary and intelligent choice among the alternative courses of action open to the defendant"].) To enter a valid plea, the defendant must effectively waive the "privilege against compulsory self-incrimination," "the right to trial by...