People v. Huricks

• Decision Date: 01 March 1995
• Docket Number: B085033,Nos. B080496,s. B080496
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Kevin P. HURICKS, Defendant and Appellant. In re Kevin P. HURICKS, on Habeas Corpus.

Page 592

38 Cal.Rptr.2d 592

32 Cal.App.4th 1201

The PEOPLE, Plaintiff and Respondent, v. Kevin P. HURICKS, Defendant and Appellant.

In re Kevin P. HURICKS, on Habeas Corpus.

Nos. B080496, B085033.

Court of Appeal, Second District, Division 3, California.

March 1, 1995.

Review Denied May 25, 1995.

[32 Cal.App.4th 1204] Mark D. Lenenberg, under appointment by the Court of Appeal, for defendant, appellant and petitioner.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Asst. Atty. Gen., Linda C. Johnson and Lance E. Winters, Deputy Attys. Gen., for plaintiff and respondent.

LUKE, Associate Justice, Assigned. ^*

INTRODUCTION

Kevin P. Huricks (Huricks) appeals from the judgment entered following his plea of nolo contendere to six counts of forcible rape, violations of Penal Code section 261, subdivision (a)(2), ¹ together with an enhancement allegation that the victim was vulnerable within the meaning of section 667.9, subdivision (a); one count of attempted forcible oral copulation, a violation of sections 664 and 288a, subdivision (c); one count of sexual battery, a violation of section 243.4, subdivision (d); one count of using a minor for sex acts, a violation of section 311.4, subdivision (c); and one count of assault with the intent to commit a felony, a violation of section 220.

Huricks was arraigned on the above charges on July 9, 1993, at which time he pled not guilty and denied the special allegations. On September 9, 1993, he withdrew his not guilty plea and entered a plea of nolo contendere to all charges, while admitting the special allegations. His motion to withdraw his plea was heard and denied on October 7, 1993, when he was sentenced to state prison for the middle term of six years for each of four forcible rapes, ² to run consecutively to each other, plus one year for the vulnerable (defenseless) victim enhancement for one of the rapes, ³ to run consecutively to the other sentences, for a total term of 25 years. He was given credit for 181 days of presentence custody, including 121 days of actual custody and 60 days of good time/work time.

A notice of appeal was filed by Huricks on October 7, 1993, ⁴ and a certificate of probable cause was issued on October 12, 1993.

STATEMENT OF FACTS ⁵

On the date of his plea, September 9, 1993, Huricks's trial counsel stated for the record that three days earlier she received a call from him indicating that he wished to enter into a plea agreement, irrespective of her advice to the contrary.

After the deputy district attorney advised Huricks of the consequences under the terms of a plea bargain of his pleading nolo contendere to the charges and admitting the special allegations, and elicited Huricks's negative response to questions as to whether other promises had been made to him by anyone to get him to do so, and had he been threatened by anyone, the following conversation occurred:

"[Deputy District Attorney]: Are you doing this freely and voluntarily after having talked the matter over with your lawyer?

"[Huricks]: I'm doing it voluntarily because of some of the evidence, but I am not guilty of all these charges.

"[Deputy District Attorney]: So you think it's in your best interest to do this, then?

"[Huricks]: Yes, I do."

Before he pled nolo contendere to all the counts and admitted the special allegations, Huricks acknowledged that he had had an opportunity to discuss the case with his attorney and waived his constitutional rights. The trial judge accepted his plea as being free and voluntary.

At the hearing on the motion to withdrew his plea on October 7, 1993, Huricks stated:

"Your honor, I was asked by my family to take this plea bargain, but I'm a homosexual and I wouldn't in no way rape somebody and plus my profession also and I would like to try to go to trial with this."

The trial judge asked for confirmation of his recollection that at an earlier stage of the proceedings Huricks wanted to enter a plea, then changed his mind, and after the case was continued for trial, he called his attorney and again indicated he wished to change his plea.

Huricks's counsel answered:

"That's correct, your honor.... Yes, we were here on September 3rd. He entered into the plea. He started to enter into the plea and during the course of the plea by District Attorney Renee Korn[,] he decided to change his mind. Then as--which is incorporated in the plea transcript which was taken by Mr. De Long.

"I indicated to the court that I had received a call from my client and that he indicated to me that he wanted to come back to court as soon as possible and enter a plea at that time he indicated to me. And it resulted in a plea taken by Mr. Guy De Long."

Huricks interjected that he had difficulty reaching his attorney by collect call, adding that "my family is trying to get me to take the plea bargain and I don't feel right with it because I know I'm not guilty of all these accusations here and I--."

Huricks's counsel elaborated: "My client indicates that he was confused and indecisive, that is, regarding the plea, whether to take the plea or not to take the plea."

The trial judge prefaced his ruling by stating:

"On the first occasion, Mr. Huricks, you may have had some doubts and reservations, although it was my--it's my recollection that you wanted to enter into a plea agreement then and during the course of the agreement you changed your mind. Then you returned to the county jail and you returned to Wayside and you had six full days to think about this and no one asked you to enter this plea, but you called up your attorney and said 'I want to enter into this plea.' "

The trial judge continued:

"And--and you indicated on the record you wished to enter into this plea because it was in your best interests. I reviewed the transcript of the plea and you appear to understand everything that Mr. De Long--you responded to all the questions, you understood that you were giving up your constitutional rights and I observed you very carefully because of your prior attempt to take a plea in this matter. I was concerned on whether it was free and voluntary, so I watched you very carefully and I'm convinced you fully understood your rights and you freely gave them up. I'm convinced that the plea is free and voluntary."

The trial judge, therefore, denied Huricks's motion to withdraw his plea and proceeded to sentence him.

ISSUES

Huricks claims on appeal that:

1. The trial court's denial of the motion to withdraw his plea of nolo contendere was in error; and that

2. The defenseless victim enhancement must be stricken as there was no predicate sentence pursuant to section 667, subdivision (a).

DISCUSSION

1. Motion to withdraw plea of nolo contendere

Huricks contends that the trial court erred in denying the motion to withdraw his plea, a motion made on the ground that he was induced to enter it through undue duress. This contention is not supported by the record.

Section 1018 states in relevant part:

"Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court.... On application of the defendant at any time before judgment ... the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.... This section shall be liberally construed to effect these objects and to promote justice."

The general rule is that the burden of proof necessary to establish good cause in a motion to withdraw a guilty plea is by clear and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562, 566, 116 Cal.Rptr. 242, 526 P.2d 250; People v. Wharton (1991) 53 Cal.3d 522, 585, 280 Cal.Rptr. 631, 809 P.2d 290.)

"Withdrawal of a guilty plea is left to the sound discretion of the trial court. A denial of the motion will not be disturbed on appeal absent a showing the court has abused its discretion." (People v. Nance (1991) 1 Cal.App.4th 1453, 1456, 2 Cal.Rptr.2d 670; In re Brown (1973) 9 Cal.3d 679, 685, 108 Cal.Rptr. 801, 511 P.2d 1153.)

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. (Cruz, supra, 12 Cal.3d at p. 566, 116 Cal.Rptr. 242, 526 P.2d 250; Nance, supra, 1 Cal.App.4th at p. 1456, 2 Cal.Rptr.2d 670.) Other factors overcoming defendant's free judgment include inadvertence, fraud or duress. (People v. Griffin (1950) 100 Cal.App.2d 546, 548, 224 P.2d 47; People v. Dena (1972) 25 Cal.App.3d 1001, 1008, 102 Cal.Rptr. 357.) However, "[a] plea may not be withdrawn simply because the defendant has changed his mind." (Nance, supra, 1 Cal.App.4th at p. 1456, 2 Cal.Rptr.2d 670; In re Brown, supra, 9 Cal.3d at p. 686, 108 Cal.Rptr. 801, 511 P.2d 1153.)

In the present case, there is no evidence to support Huricks's contention that at the time he entered his plea of nolo contendere, he was subjected to "overbearing duress," other than his statement at the hearing on the motion to withdraw his plea that he was "asked by [his] family to take this plea bargain" and, according to his counsel, was "confused and indecisive" as to whether to follow their advice.

Huricks's claim that his family pressured him into the plea is not enough to constitute duress. Nothing in the record indicates he was under any more or less pressure than every other defendant faced with serious felony charges and the offer of a plea bargain.

Notwithstanding Huricks's natural anxiety over allegations that he used his position as a teacher's aide in a special education class to check out from a board and care home a young female student suffering from cerebral palsy, with limited physical, emotional and mental skills, ⁶ took her to his residence and encouraged a minor male to rape her while he attempted sexual contact with the...