PEOPLE v. FECHTER

No. C080947.

THE PEOPLE, Plaintiff and Respondent, v. RUSSELL OWEN FECHTER, Defendant and Appellant.

Court of Appeals of California, Third District, Sacramento.


NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115

RENNER, J.

Defendant Russell Owen Fechter entered a negotiated plea of no contest to assault with a firearm and admitted he personally used a firearm and personally inflicted great bodily injury on the victim in exchange for a stipulated sentence of eight years in state prison. The trial court denied his motion to withdraw his plea and sentenced him to the stipulated eight-year term.

On appeal, defendant challenges the trial court's denial of his motion to withdraw his plea. We will affirm the judgment.

I. BACKGROUND1

Defendant rented a room from the victim, Shawn W., a longtime family friend. On June 29, 2014, police officers responded to a reported shooting at Shawn W.'s home. When officers arrived, defendant identified himself and stated he had shot Shawn W. Officers found Shawn W. lying on his back in one of the bedrooms, suffering from a gunshot wound to the neck, but alert and able to speak. They also found a .22 magnum revolver and one spent shell casing in the same bedroom.

The officers noted defendant was displaying symptoms of being under the influence of alcohol or drugs. He admitted drinking alcohol with Shawn W. and stated that, earlier in the evening, he and Shawn W. had gotten into a "verbal argument" in the living room after Shawn W. mentioned a 30- to 60-day eviction notice and said he wanted defendant to move out of the house. Defendant told Shawn W. he was not going to move out and went to his bedroom. Shawn W. entered defendant's bedroom and was shot by the defendant, who then immediately called 911. Defendant told the officers he did not intend to shoot Shawn W. and did not remember pulling the trigger. He also repeatedly stated he shot Shawn W. in self-defense "because he felt threatened," but could not explain why he felt threatened and stated Shawn W. was not armed.

Two days later, officers spoke with Shawn W. in the trauma unit at the hospital. Shawn W. stated that, while he and defendant rarely argued and had no history of physical altercations, he felt defendant "was an alcoholic and was messy, and . . . it was time for the defendant to find another place to live." Shawn W. confirmed that when he told defendant to move out and gave him an eviction notice, defendant became upset, called Shawn W. vulgar names, and went into his bedroom, slamming the bedroom door behind him. When Shawn W. opened the bedroom door and told defendant to leave that night, defendant pointed a gun at Shawn W. and shot him. Shawn W. suffered serious injuries as a result of the shooting.

Defendant was charged by criminal complaint with assault with a firearm. (Pen. Code, § 245, subd. (a)(2).)2 The complaint alleged he personally used a firearm (§ 12022.5, subds. (a), (d)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)).

On November 21, 2014, defendant, represented by Attorney Jennifer Mouzis, entered a negotiated plea of no contest to the charges and enhancements in exchange for a stipulated sentence of eight years in state prison, comprised of the low term of two years on the assault charge, plus two 3-year terms for the enhancements.

Thereafter, defendant substituted Attorney Michael Rooney in place of Attorney Mouzis and filed a motion to withdraw his plea. He filed an amended motion several months later.

In October 2015, the trial court heard and denied defendant's motion to withdraw his plea, and sentenced defendant to the low term of two years, plus a consecutive three-year term for the firearm enhancement and a consecutive three-year term for the great bodily injury enhancement, for an aggregate sentence of eight years in state prison, as stipulated.

Defendant filed a timely notice of appeal. The trial court granted his request for a certificate of probable cause.

II. DISCUSSION

Defendant contends the trial court erred in denying his motion to withdraw his plea. He claims his plea was not voluntary due to (1) his trial counsel's failure to adequately investigate the case or analyze available defenses, (2) the prosecutor's threat to charge him with attempted murder if he did not accept the plea deal, and (3) a failure to determine what effect defendant's medications had on his ability to understand the proceedings. As we shall explain, each of the claims lacks merit.

A. Entry of Plea

At the November 21, 2014, plea hearing, defendant was represented by Attorney Mouzis. The following are relevant portions of the colloquy between the court, defendant, and counsel for both parties:

"[DEFENDANT'S COUNSEL:] At this time [defendant] wishes to avail himself of the offer of the District Attorney. We have agreed that he'll plead to one count of [section] 245[, subdivision](a)(2) for a low term of three years. The [section] 12022.5 for the low term of two years, and the great bodily injury enhancement for three years being an aggregate term of eight years in the state prison. We are making this decision based, in part, in large part on the fact that the DA has already filed, I'm sorry prepared an amended complaint in which they intend to file an attempt murder with a personal use of a firearm with great bodily injury should [defendant] not avail himself of this deal which would greatly increase his exposure in some manner. "THE COURT: Okay. But at this point that's the offer from the People? "[THE PROSECUTION]: It is, your Honor. But just to be clear, it's low term on the [section] 245[, subdivision](a)(2), which is actually two years, and low term on the enhancement, that's three years, but still is a total of eight years. "[DEFENDANT'S COUNSEL]: I apologize. "[THE PROSECUTION]: The triad on the [section] 245[, subdivision](a)(2) is two, three, four, triad on the [section] 12022.5 is three, four, 10. "THE COURT: Okay. So Mr. Fechter, you want to plead no contest today? "[DEFENDANT]: Yes. "THE COURT: Okay. Can I get a factual basis, please?"

The prosecutor provided a factual basis, to which defendant's counsel had nothing to add. The colloquy continued:

"THE COURT: Have you had enough time with the client discussing the elements of the offense, including the enhancements, any possible defenses he would have, consequence of his plea as well as constitutional rights? "[DEFENDANT'S COUNSEL]: Yes, your Honor."

The court asked defendant a number of questions, including whether he understood the charge and the enhancements, had had enough time to discuss any possible defenses with his attorney, and he understood he would be "sentenced to a total aggregate term of eight years state prison" followed by a period of parole. Defendant answered "yes" to each question.

Next, the court and counsel discussed the sentencing schedule. Defendant confirmed he had the right to be sentenced on or before December 23, 2014, but was willing to waive that right to come back for sentencing on January 8, 2015. The colloquy continued:

"THE COURT: Okay. And then the other thing we're going to have a full probation report prepared in your case. I don't expect this to happen because I've spoken with the attorneys about your case, but there may be something in the probation report that makes me decide that the eight years sentencing is not appropriate. If that's the case you'd be allowed to withdraw the no contest pleas and proceed back to a preliminary hearing. Do you understand that? "[DEFENDANT]: Yes. "THE COURT: Okay. At this point I'm going to, we're going to go forward with the eight years sentence. . . ."

Next, the court confirmed defendant understood he was pleading to a felony, would be prohibited for life from owning or possessing firearms or ammunition, could be deported or excluded from the United States as a result of his plea, and would be required to pay victim restitution. The court further confirmed defendant understood that the court would find him guilty based on his plea of no contest, the felony constituted a strike, and that the violent felony required him to serve 85 percent of the eight-year state prison sentence. To each of these questions, defendant answered, "Yes."

The court explained defendant's rights and confirmed his waiver of those rights. Defendant pleaded no contest to assault with a firearm (count one) and admitted the great bodily injury allegation. He further acknowledged he was entering his plea and admission freely and voluntarily, there had been no other promises or agreements made to him, and no one had threatened him to enter the plea. The colloquy continued:

"THE COURT: Are you presently taking any drugs or medications? "[DEFENDANT]: Just blood pressure. "THE COURT: Okay. The reason I ask, I just want to make sure you've understood everything we discussed in the court; is that correct? "[DEFENDANT]: Yes. "THE COURT: As well as any private discussions with your attorney. "[DEFENDANT]: Yes."

The court accepted defendant's plea and admissions and found the waivers were made knowingly, intelligently, and voluntarily. The court concluded: "And so I do find the defendant guilty of the charge in Count One. Again, unless there's something that comes up in the probation report, it's going to be low term two years for Count One. And then I do find the enhancement regarding infliction of great bodily injury. Again, so that will be an additional three years. And then finally, I did find true the firearm enhancements pursuant to [section] 12022.5[, subdivision](a). That would be the term of three years for total of eight years state prison."

B. Hearing on Motion to Withdraw Plea

At the May 8, 2015, hearing on defendant's motion to withdraw his plea, defendant was represented by Attorney Rooney, who had been substituted in for previous counsel, Attorney Mouzis. Attorney Rooney argued defendant was misadvised by his previous counsel, who at the time of the plea stated the "wrong triad for two of the three counts" and mistakenly indicated that the district attorney had already filed another charge, although she later corrected that statement. After a brief discussion with the court, defendant's counsel conceded the mistakes had been corrected at the time, but argued defendant had never had all three charges and enhancements correctly read to him during the hearing.

Attorney Rooney further argued defendant's previous counsel had never really investigated defendant's claim of self-defense. In particular, counsel noted defendant told police he was "alone in his bedroom at night, the door is closed and that is when he is, as he says to the police, lunged at by the alleged victim of this case." Noting defendant had maintained his innocence from the start, as evidenced by the fact that he called the police after the shooting and was "concerned about the alleged victim," defendant's counsel also argued, "It doesn't appear that [defendant] is completely cognizant of this situation during the plea."

The prosecution argued that any mistakes by previous defendant's counsel in stating the sentencing triad had been corrected, and noted defendant expressed a willing and knowing waiver of his rights. The prosecution further argued defendant's claim of innocence from the start did not preclude a knowing and voluntary plea, and defendant's failure to submit a declaration regarding the plea withdrawal request was sufficient in and of itself to deny the motion. The prosecution requested that the court deny the motion and sentence defendant or, in the alternative, set the matter for an evidentiary hearing to allow defendant to file the appropriate affidavit and to further allow previous defendant's counsel the opportunity to testify. The trial court set the matter for hearing.

At the continued hearing on August 21, 2015, defendant testified that he answered the court's questions at the plea hearing as instructed by his then counsel, Attorney Mouzis, stating, "Whatever [Attorney Mouzis] told me to say, yes, that's what I said." Specifically, defendant stated that, when the court asked him a question, he would look at Attorney Mouzis and ask her "which way I should say—what I should say." When asked whether he understood everything the court was saying at the time, defendant responded, "Not to all of the questions. After it got where I knew I was just going to be answering what [Attorney Mouzis] told me to say, so that's what I said." Defendant's counsel asked defendant to explain his understanding of a guilty plea, a no contest plea, and a not guilty plea, and asked, "What is a no contest plea?" Defendant said, "Well, I wasn't exactly sure. I didn't realize it was the same as guilty." When asked to explain, defendant stated, "Well, it's—I don't know. I was just taking the advice of the attorney." Direct examination of defendant continued:

"[DEFENDANT'S COUNSEL]: You claimed complete innocence of the offense? "[DEFENDANT]: Of—yes, of the way I'm charged, yes. "[DEFENDANT'S COUNSEL]: And have you had a chance to discuss what your defense would be? "[DEFENDANT]: With [Attorney Mouzis]? "[DEFENDANT'S COUNSEL]: Well, okay, with her, yes? "[DEFENDANT]: She never really gotten into that very much. "[DEFENDANT'S COUNSEL]: You called 9-1-1 in this matter, didn't you? "[DEFENDANT]: Yes. "[DEFENDANT'S COUNSEL]: Why did you tell them this happened? "[DEFENDANT]: It was an accident. "[DEFENDANT'S COUNSEL]: Okay. And did you indicate to them anything else about why Shawn [W.] ended up being shot? "[DEFENDANT]: He came—he came at me in my room. "[DEFENDANT'S COUNSEL]: And did you ever use the word self-defense on a 9-1-1 call? "[DEFENDANT]: I don't really remember if I said those words, I don't. I said—I said it was an accident. It was accidental, no intention of that happening. "[DEFENDANT'S COUNSEL]: Now, your testimony today is that you said that's what she told me to say. What would happen when the judge asked you a question? "[DEFENDANT]: I looked at [Attorney Mouzis], and she told me which way to answer. "[DEFENDANT'S COUNSEL]: How was that done? "[DEFENDANT]: She was standing right next to me, and I would look at her, and she would—I believe she would—(indicating.) "[DEFENDANT'S COUNSEL]: You're nodding your head, for the record, Mr. Fechter. "THE COURT: Well, he was shaking his head for part of it, and then he was nodding it. "[DEFENDANT'S COUNSEL]: Is that part of what was going on between the two of you? "[DEFENDANT]: From what I remember, yes. "[DEFENDANT'S COUNSEL]: What did you take that movement to mean when you were in court on November 21st, 2014, when you were giving the plea to the judge? "[DEFENDANT]: It was to how I was to answer the questions."

With regard to the trial court's inquiry regarding whether defendant was taking any medications, defendant's counsel asked defendant, "[I]s there anything about that day that was affecting your ability to understand or think?" Defendant responded, "Well, I've been—already been sleep deprived for months, so I was pretty much in a fog, really." When asked whether that affected his judgment at the time, defendant responded, "Yes." Defendant's counsel also asked defendant whether he felt he was able to express himself well and communicate with others. Defendant stated he felt he was able to express himself.

On cross-examination, defendant acknowledged he knew he was going to court to enter a plea. However, when asked if he thought he was also going to be sentenced, defendant said, "I don't know the difference there. I don't know." Defendant testified he knew he was going to court to take a plea—that is "the terms that are presented by the plea"—which, in his case, "was for—added up to eight years." When asked whether he understood at the November 21, 2014, plea hearing that he was going to go to state prison, defendant responded, "Yeah, that was the eventuality of it, yes." The prosecutor asked defendant if he had since changed his mind about wanting to go to state prison. Defendant stated, "I have never wanted to go to state prison. [¶] . . . [¶] I realized at that time, after you were starting to make your statements, after all the questions that were presented to me, that that really isn't what I wanted to do at that time." The prosecutor asked, "So did you stop and say that on the day you were entering your plea?" Defendant answered, "No, I did not." Cross-examination continued:

"[THE PROSECUTION]: Mr. Fechter, when you realized during the middle of the plea that you wanted to change your mind, did you tell anybody? "[DEFENDANT]: Not during the middle of it, no. "[THE PROSECUTION]: Did you tell anybody in January of this year that you wanted to change your plea? "[DEFENDANT]: I told [Attorney Mouzis] right after that. I don't remember whether it was in November right now or if it was in January. I don't remember. "[THE PROSECUTION]: Do you remember going back to court in January of this year? "[DEFENDANT]: I didn't—I remember that it was in January, but I remember we went after that, yeah. "[¶] . . . [¶] "[THE PROSECUTION]: And you didn't say anything on that January date that you had changed your mind either, did you? "[DEFENDANT]: Not that I remember, no. "[THE PROSECUTION]: When the judge was asking you questions, did you understand the question that was asked of you? "[DEFENDANT]: I was—most of those questions, I wasn't even really listening to. I just got my answers from [Attorney Mouzis]. "[THE PROSECUTION]: So when the court said, `So, Mr. Fechter, you want to plead no contest today?' Did you understand that question? "[DEFENDANT]: Yeah, yes, I think I understood that one." "[¶] . . . [¶] "[THE PROSECUTION]: `Have you had enough time with your attorney discussing any possible defenses you'd have in your case?' "[DEFENDANT]: Okay. "[THE PROSECUTION]: Do you understand that question? "[DEFENDANT]: Yeah. "[THE PROSECUTION]: Did you understand when the judge told you, `So again, the understanding is you're going to be sentenced to a total aggregate term of eight years state prison'? "[DEFENDANT]: All of those questions, like I said, I—I look at [Attorney Mouzis] to get an answer from her. "[¶] . . . [¶] "[THE PROSECUTION]: At the time, were you confused about what you were doing? "[DEFENDANT]: I really didn't think that was the final—especially after the judge said he was going to look it over and see if he was going to approve that, I didn't really think that was the final answer to the whole thing, no. "[THE PROSECUTION]: Were you confused on November 21st? "[DEFENDANT]: At that time, I wasn't really thinking about it one way or the other. I knew I was getting my answers from [Attorney Mouzis]. I just went with that. "[THE PROSECUTION]: Did you understand that you were going to be going to prison? "[DEFENDANT]: I don't remember if I understood that right at that time. I knew that was the— "COURT REPORTER: I'm sorry. I didn't understand that. "THE COURT: `I understood that would be the eventuality after that.' "COURT REPORTER: Thank you."

Next, the court asked defendant some questions, including the following as relevant here:

"THE COURT: Mr. Fechter, you obviously went to court with Ms. Mouzis on November 21st, 2014, correct? "[DEFENDANT]: Yes. "THE COURT: Okay. That's the date, I'm just telling you, that was the date the plea was entered. I am looking at a transcript of it. [¶] Before you went to court that day, had you discussed with Ms. Mouzis what was going to happen that day? "[DEFENDANT]: Yes. "THE COURT: And she had discussed with you the fact that apparently the People had offered you [] an eight-year term to resolve this thing entirely, correct? "[DEFENDANT]: Yes. "THE COURT: You had discussions with her about whether you wanted to accept that eight-year sentence? "[DEFENDANT]: There was some discussion. She made it sound like that was the only thing to do. "THE COURT: Her advice to you was to accept the plea, I take it, is what you're telling me? Her advice was to accept the eight-year term? "[DEFENDANT]: Yes. "THE COURT: Ultimately, when you walked into court that morning, was it your desire to enter the plea that she'd advised, the eight-year sentence? "[DEFENDANT]: I figured that she was being paid to do her job, and so I would—I went along with whatever she thought was appropriate for the situation. "THE COURT: But you understood by saying the words that—you say she was telling you what to say. By saying those words is, ultimately, what would happen is you would get eight years? "[DEFENDANT]: I don't remember for sure, but, yes, I think so. "THE COURT: You told me at the very beginning of this, when we first started, in answer to somebody's question, I believe it was the People's, that you understood the eventuality, I think is the word you used, was you were going to get eight years? "[DEFENDANT]: Yeah, well, it's broken down—I didn't understand how—it was broken down like two years and three years and two years or something to that effect. "[THE COURT]: But the total was eight? "[DEFENDANT]: Yeah, yeah, I—I didn't—I didn't know—I didn't think it should be getting all of that. I thought the judge was going to look it over, [the judge] was going to look it over, and there would be some adjustment to it for whatever was appropriate. I really didn't think that—I mean, if I were going to agree to anything. That seemed excessive to me."

On re-direct examination, defendant's counsel asked whether defendant had talked with his prior counsel about the fact that the victim "was under the influence of opiates, twice the legal limit of alcohol to drive, and benzodiazepine?" Defendant answered, "[Attorney Mouzis] never brought any of that up to me at all." Defendant's counsel asked whether defendant "discussed any of [the victim's] medical records." Defendant answered, "Uh—uh, some of it, as far as his injury." Counsel confirmed that defendant called 911 after the shooting, and asked again whether defendant and Attorney Mouzis discussed that the victim was under the influence. Defendant said, "No." When asked if he understood why it would be important to know "that somebody is under the influence of alcohol, twice the legal limit to drive and on drugs," defendant responded, "Uh, that would explain the behavior, for one thing," and added, "I didn't know anything about the drugs or anything." When asked if his prior counsel came to see him "one time down there at the Rio Correctional Center," defendant answered "yes."

Attorney Mouzis testified she met with defendant on several occasions, explained his case to him and "our ongoing investigation," and explained the charges against him. Mouzis testified she was provided with discovery, which she reviewed. With regard to who did the investigation work she stated, "The client's mother hired a licensed private investigator with whom I worked, and we did do investigation separate and apart from that done by the police agencies and the district attorney." She confirmed she was aware of the victim's health as part of her investigation and the discovery in the case. She testified she was aware of the victim's condition the night of the shooting and was also aware that both the victim and the defendant were under the influence. In that regard, the examination included the following exchange:

"[THE PROSECUTION]: Ms. Mouzis, what were you specifically aware of the victim being under the influence of? "[ATTORNEY MOUZIS]: Alcohol. "[¶] . . . [¶] "[THE PROSECUTION]: Did you know the defendant was under the influence of any—or could potentially be under the influence of anything other than alcohol? "[ATTORNEY MOUZIS]: Yes. "[¶] . . . [¶] "[THE PROSECUTION]: What was that? "[ATTORNEY MOUZIS]: The client just said that the victim used drugs. "[THE PROSECUTION]: And were you aware that your client or Mr. Fechter could potentially have been under the influence of controlled substances? "[¶] . . . [¶] "[ATTORNEY MOUZIS]: It was very apparent on the 9-1-1 call that the client was under the influence of alcohol. That was also clear through my communications with him, the client did not say whether he did or did not use drugs that day, although I was definitely aware that he was under the influence."

Attorney Mouzis testified she explained to defendant "[a]t length" the evidence she received from the district attorney's office and the independent investigation. She stated: "I actually did several different visits to explain those items, and the items both that we had developed and the district attorney had developed. I'd explained the charges against him. I'd explained to him what his current and maximum exposure was [¶] . . . [¶] I had explained to him that the district attorney was prepared to amend the charges to allege attempted murder with the personal use of a firearm. I had explained to him how that would change his exposure in the case. I had explained to him all the possible defenses I believed he had and why I did not believe they are viable. And after I explained all of that and answered every single question he had on at least two occasions, I said, . . . really think about what you want to do, in light of all of this information. [¶] Then before the plea, I went back to him and I simply said, Mr. Fechter, what is your decision? And he said he wanted to plead." She further testified that at no time during the November 21, 2014, plea hearing did defendant state that he had changed his mind, nor did she have any reason to believe he had. She noted defendant "went through the plea with absolutely not a hitch" and "never indicated to [her] one time he thought he was making a mistake."

Attorney Mouzis testified that, "absent an extreme emergency" not present here, she never went to court without first meeting with her client. The prosecutor asked Mouzis if she had any reason to believe defendant did not understand he was going to enter a plea that would equate "to a guilty." Attorney Mouzis responded: "There was no reason to believe that at all. In fact, after I started representing him and once he had been sort of free of drugs and alcohol, he was very lucid, very intelligent, and I have no reason to disbelieve that he understood what was going on or what the consequence would be."

According to Attorney Mouzis, defendant told her the victim used methamphetamine and marijuana. When asked if she had received the victim's medical records in the case, she responded, "No; however, we did independently interview him, and we're [sic] aware of the significance of the injuries." The prosecutor asked if the investigation Mouzis received gave her any reason to believe the victim used drugs. She stated: "I did receive investigation, both the investigator who was hired by the client's mother, interview the victim, as well as both of his brothers. [¶] I did have information that the victim used drugs. As to whether he used them on that particular night, I did not have information as to that. [¶] I was well aware that both the client and the victim that day were intoxicated." However, she stated that, even if she had received information from the victim's medical records that showed the victim's blood was positive for benzodiazepine and opiates at the time of the shooting, that information "absolutely" would not have changed her opinion, stating, "Both of those are downers or tend to make people more calm. They do not tend to make them more aggressive." She continued, "It would also not change my opinion because of what the client told me about his involvement in this matter." While she did not testify to what defendant told her about his involvement, she testified that the information defendant told her in that regard led her to believe he had "a full understanding of what had happened," which in turn influenced how she advised him as his attorney. She stated further that the information she received from the private investigator, which she discussed with defendant "[a]t length," played a "huge part" in how she advised defendant. Finally, Mouzis testified she had no reason to believe defendant thought he was going to receive "anything less than eight years after the probation report came back" because she "told him that it would not be reduced, that a plea bargain was just that. What he pled to is what he was going to get."

On cross-examination, Attorney Mouzis testified she listened to the 911 call in which defendant "repeatedly confessed to shooting the victim." She stated she did not see the victim's toxicology report, nor did she receive his medical records. However, "the defense team" interviewed the victim. Defendant's counsel asked if Mouzis received any report from the private investigator about the investigator's conversations with the victim, Mouzis answered, "I did receive a report. I received an oral report multiple times, every time she talked to one of the witnesses, the issue was Ms. Helderfactor, who hired the investigator, upon hearing that these reports were highly unfavorable and the defense would not be using them, declined to pay to have them typed out. But I received oral reports on everything that the named victim said, as well as both of his brothers." When asked whether defendant stated he wanted to withdraw his plea immediately after entering the plea, and whether defendant indicated he was not happy with the plea and wanted to change it, Mouzis stated, "No, what he indicated is he wanted to stay at RCCC for as long as he could for his family to visit because his mother was very elderly." She stated she discussed with defendant what would happen at the plea hearing, and denied ever shaking her head up and down to help him or encourage him to answer yes, stating: "[I]f a client has a question, they ask me and I answer them. I am not of the practice that I have seen others do where I tell them what to say. [¶] . . . [¶] Whether he's looking at me or he is inquisitive in any way, I speak to him and explain to him what's going on. I do not tell any client what their answer should be to any question."

On redirect, Attorney Mouzis testified she declined medical records after November 21, 2014, because the defense team had already interviewed the victim and it was "very clear" what his injuries were and she had "no question of whether he was under the influence."

The trial court found defendant was paying attention and providing his own answers during the plea hearing, and he understood not only that he was entering a plea but also the breakdown of the aggregate term. The court further found defendant answered each and every question asked by the trial court. With respect to defendant's testimony that he was told what to say by his attorney, the trial court found defendant to be not credible. The court concluded defendant had not met his burden of demonstrating good cause by clear and convincing evidence and denied his motion to withdraw his plea.

C. Relevant Law

Section 1018 provides in relevant part that, on the application of the defendant at any time before judgment, the trial court "may . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted." As relevant here, a plea of no contest is considered the same as a plea of guilty. (§ 1016, subd. 3.)

While section 1018 must be "liberally construed to effect [its] objects and to promote justice," courts implementing section 1018 have established a stringent standard for overturning a guilty plea, stating for example that "`pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.' [Citation.]" (People v. Weaver (2004) 118 Cal.App.4th 131, 146.) It is the defendant seeking to withdraw his plea who has the "burden to produce evidence of good cause by clear and convincing evidence. [Citation.]" (People v. Wharton (1991) 53 Cal.3d 522, 585.) That is, the defendant must demonstrate that his plea was not the product of his free judgment. "Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.]" (People v. Cruz (1974) 12 Cal.3d 562, 566.)

An appellate court reviews a trial court's denial of a motion to withdraw a guilty plea for abuse of discretion (People v. Holmes (2004) 32 Cal.4th 432, 442-443), and "`will not disturb the denial of a motion unless the abuse is clearly demonstrated.' [Citation.]" (People v. Wharton, supra, 53 Cal.3d at p. 585.) In determining whether there has been an abuse of discretion, "a reviewing court must adopt the trial court's factual findings if substantial evidence supports them. [Citation.]" (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)

D. Analysis

The record makes plain that defendant's plea was voluntary and knowing. According to his own testimony, defendant knew he was going to court to enter a plea. He knew the agreed-upon term was eight years and he also knew "the eventuality of it" was that he would be spending eight years in state prison. He answered the court's questions during the plea hearing and did not say anything to either the court or counsel about changing his mind. Nor did he tell anyone he had changed his mind at the subsequent hearing the following January. While he testified that he "wasn't even really listening to" any of the questions the court was asking him and stated he was relying on Attorney Mouzis for answers, he acknowledged he understood that the People had offered an eight-year term and he had discussed with Attorney Mouzis whether or not to accept the offer. He further acknowledged he understood that, by answering the court's questions as he did, he would receive an eight-year sentence, broken down "like two years and three years and two years." Although defendant claimed he thought "the judge was going to look it over, [the judge] was going to look it over, and there would be some adjustment to it for whatever was appropriate," he answered affirmatively when asked whether he (1) understood the charges and enhancements, (2) had enough time to discuss any possible defenses with his attorney, (3) understood he would receive eight years in state prison, (4) would thereafter be on parole, (5) would be sentenced on January 8, 2015, (6) could withdraw his plea if the court, after reviewing the probation report, determined the eight-year sentence was not appropriate, (7) understood he could not own or possess a firearm, (8) understood he may be ordered to pay restitution to the victim, (9) understood the court was going to find him guilty based on his plea of no contest, (10) understood he was incurring a strike, (11) understood he would be required to serve 85 percent of the "eight year state prison sentence" based on the violent felony conviction, (12) understood he had a right to, and was giving up his right to, a preliminary hearing, a speedy public jury trial, confront and cross-examine witnesses testifying against him, remain silent, and present evidence, (13) understood he was pleading no contest and admitting the enhancements, (14) was entering his pleas and admissions freely and voluntarily, (15) had not been made any other promises or agreements, and (16) had not been threatened to enter the plea. Defendant indicated he was taking blood pressure medicine, but confirmed he nonetheless understood everything the court and counsel had explained to him.

As the trial court noted, defendant was actively engaged in the plea hearing and responded to each and every question in a manner that did not suggest his plea was not the product of his free judgment.

1. Ineffective Assistance of Counsel

Defendant claims his no contest plea was involuntary as a result of the ineffective assistance of his counsel. First, he claims Attorney Mouzis failed to adequately investigate the victim's medical records, which showed that, at the time of the shooting, the victim had a blood-alcohol level of 0.147 and was under the influence of benzodiazepine and opiates. The claim lacks merit.

A defendant is entitled to effective assistance of counsel during plea negotiation and consideration. (Lafler v. Cooper (2012) 566 U.S. 156, 162 [182 L.Ed.2d 398, 406]; Missouri v. Frye (2012) 566 U.S. 134, 140 [182 L.Ed.2d 379, 386-387].) To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's deficient performance, defendant would have obtained a more favorable outcome. (Strickland v. Washington (1984) 466 U.S. 668, 695 [80 L.Ed.2d 674, 693-694, 698].)

Here, Attorney Mouzis testified she reviewed the discovery provided to her, received reports from investigators, and received information from defendant. She stated she was well aware that, at the time of the shooting, both defendant and the victim were under the influence of alcohol. She was also aware, based on information from defendant, the victim, and the victim's brothers, that defendant was potentially under the influence of drugs and that the victim used methamphetamine and marijuana. She testified that, had she received information from the victim's medical records that the victim tested positive for benzodiazepine and opiates the night of the shooting, that information would "absolutely not" have changed her opinion regarding how to advise defendant on the plea. She noted her opinion was based, in part, on information she received from defendant that indicated he had a full understanding of what happened the night of the shooting.

We note that defendant's argument includes the claim that the victim "forced his way into [defendant's] bedroom, approached him in a violent manner and lunged at him." However, his only support for his rather self-serving characterization is a citation to the argument portion of his motion to withdraw his plea, and to a page in the probation report which states only that defendant repeatedly told police he shot the victim in self-defense "because he felt threatened," but "he could not describe why or how he felt threatened, and indicated the victim was not armed." Likewise, we reject defendant's claim that the victim was "in a drug and alcohol induced frenzy—as potentially inferred from the medical reports." Defendant not only fails to provide a corresponding citation to the record, but also admits he infers the stated "fact" from medical records apparently not made a part of the appellate record. (People v. Sangani (1994) 22 Cal.App.4th 1120, 1135-1136 [appellant's legal analysis must be connected to the evidence in the case]; People v. St. Martin (1970) 1 Cal.3d 524, 537-538 [appellate court cannot consider assertions involving information outside the appellate record].) While the record does contain an apparent victim toxicology report (attached as an exhibit to defendant's amended motion to withdraw his plea) indicating the victim tested positive for "Benzodiazepine Ur" and "Opiates Ur," defendant does not provide, and we are unable to find, any evidence in the record explaining the results of that report.

Next, defendant claims his counsel was ineffective because she inadequately analyzed all available defenses. Defendant claims he did not understand his defenses to either the charged offense or the potential amended charges, as evidenced by his testimony at the plea withdrawal hearing that Attorney Mouzis "never really gotten [sic] into that very much." However, his claim is contradicted by his own acknowledgment at the plea hearing that he had enough time with his attorney to discuss "any possible defenses" available to him, as well as Attorney Mouzis's affirmation of that fact, and his affirmation at the plea withdrawal hearing that he understood the words, "`Have you had enough time with your attorney discussing any possible defense you'd have in your case.'" Further, Attorney Mouzis testified she met with defendant on several occasions, explained that the district attorney "was prepared to amend the charges to allege attempted murder with the personal use of a firearm," which would "change his exposure in the case," and explained "all the possible defenses [she] believed he had and why [she] did not believe they [were] viable."

We reject defendant's claim that he pleaded guilty because he "apparently had no informed choice" aside from pleading to the sheet and receiving a stipulated eight-year sentence despite that at all times he maintained his innocence and that he acted in self-defense. This, he argues, is apparent from his statement that Attorney Mouzis "never really gotten [sic] into that very much." As previously discussed above, the record belies that claim.

Defendant attempts to establish his claim of self-defense by arguing (again, without citation to the record) that he was "faced with an angry, five inches taller, 20 years younger, intoxicated man under the influence of alcohol, benzodiazepine and opiates, who forcefully entered his bedroom after an argument where the man wanted to evict [defendant], and who lunged at [defendant] in an angry manner." While the record confirms defendant repeatedly told police he shot the victim in self-defense "because he felt threatened," defendant could not explain to police why he felt threatened and there is nothing more in the record in that regard, other than defendant's counsel's statement that defendant told police he was "lunged at by the alleged victim," and defendant's testimony that he told police he shot the victim accidentally when the victim "came at me in my room." In any event, it is not for us to determine whether defendant had a viable claim of self-defense; rather, the issue before us is whether defendant was made aware of any and all viable defenses at the time he entered his plea. Based on this record, we conclude he was.

He further claims that, because his trial attorney failed to advise him on the defense of voluntary intoxication to the threatened charge of attempted murder, he did not appreciate this potentially valid defense, which allowed the threat of an attempted murder charge to be so "coercive." Again, Attorney Mouzis testified she discussed the details of the case with defendant and explained "all the possible defenses [she] believed he had and why [she] did not believe they [were] viable." The trial court did not find defendant's claims to the contrary to be credible.

Defendant has not established that his trial counsel's performance fell below an objective standard of reasonableness and his claim of ineffective assistance of counsel therefore fails.

2. Threats of an Amended Charge of Attempted Murder

At the time of entry of defendant's plea, defendant's counsel informed the court that defendant was "making this decision based . . . in large part on the fact that the DA has already . . . prepared an amended complaint in which they intend to file an attempt murder with a personal use of a firearm with great bodily injury should [defendant] not avail himself of this deal which would greatly increase his exposure in some manner." Defendant contends the threat of the amended charge plus the enhancement "unduly coerced" him to enter a plea to avoid what was likely a defensible charge.

As a preliminary matter, defendant cites no authority in support of his claim and instead merely references another portion of his opening brief. A reviewing court need not discuss claims that are asserted perfunctorily and insufficiently developed. (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2; People v. Hardy (1992) 2 Cal.4th 86, 150.) In any event, the claim lacks merit.

First, there was no impropriety in the preparation or filing of the amended complaint. As a general rule, a prosecutor may amend a complaint without leave of court at any time before the defendant enters a plea, so long as the amendment does not change the offenses charged or alter an information to add charges not supported by the evidence at the preliminary hearing. (§ 1009; see People v. Michaels (2002) 28 Cal.4th 486, 513.) The rule is not vitiated by the fact that the amendment coincides with a defendant's attempt to plead to the original charges. (Id. at pp. 514-515.) Here, defendant was aware the district attorney had already prepared an amended complaint prior to entry of his plea.

Next, as previously discussed herein, Attorney Mouzis testified that, after reviewing and considering information from the district attorney's office, investigators, witnesses, and defendant himself, she discussed the information with defendant "[a]t length" and explained to him "that the district attorney was prepared to amend the charges to allege attempted murder with the personal use of a firearm," "how that would change his exposure in the case," and "all the possible defenses [she] believed he had and why [she] I did not believe they [were] viable." She testified further that she "answered every single question [defendant] had on at least two occasions" and told him to "really think about what [he] want[ed] to do, in light of all of this information." Defendant told Attorney Mouzis he "wanted to plead." Defendant's claim of coercion is not borne out by the record.

3. Effects of Defendant's Medication

Finally, defendant claims the blood pressure medication he was taking had "adverse side effects" (as described by the National Institutes of Health website cited by defendant) about which the trial court failed to make any substantive inquiry, thus calling into question his ability to adequately understand the proceedings. As a result, the record does not affirmatively demonstrate that his plea was voluntary and knowing under the totality of the circumstances. We disagree.

Again, defendant improperly refers to information outside the appellate record—a website purporting to define the side effects associated with blood pressure medicine—to support his claim. We cannot consider such information. (People v. St. Martin, supra, 1 Cal.3d at pp. 537-538.)

In any event, as defendant correctly notes, the trial court asked him at the plea hearing whether he was taking "any drugs or medications." Defendant responded, "Just blood pressure." The court explained, "Okay. The reason I ask, I just want to make sure you've understood everything we discussed in the court; is that correct?" Defendant replied, "Yes." Up to that point, defendant had fully participated in the proceeding, answering each of the court's questions and confirming that he understood both the oral proceedings and the contents of the written plea agreement. As such, there is nothing in the record to suggest defendant's blood pressure medication negatively impacted defendant's ability to comprehend the proceedings or the plea agreement.

For all of the foregoing reasons, we conclude the trial court did not abuse its discretion in denying defendant's motion to withdraw his plea.

III. DISPOSITION

The judgment is affirmed.

NICHOLSON, Acting P. J., and DUARTE, J., concurs.

FootNotes


1. In light of defendant's plea, and in the absence of any objection to the probation report by either party in the trial court, we take the facts from the probation report. (See People v. Evans (1983) 141 Cal.App.3d 1019, 1021.)
2. Undesignated statutory references are to the Penal Code.

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