Filed 7/24/13 P. v. Harvey CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D062441
Plaintiff and Respondent,
v. (Super. Ct. No. SCD241918)
DANIEL MARK HARVEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Dwayne
K. Moring, Judge. Affirmed.
Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, James D. Dutton and
Donald William Ostertag for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Daniel Mark Harvey appeals from a judgment of conviction after he
pled guilty to one count of assault with a deadly weapon and admitted to having
personally used a deadly weapon, pursuant to a negotiated plea agreement. On appeal,
Harvey contends that he should be permitted to withdraw his guilty plea because he had
taken medications that might have affected his mental faculties prior to the hearing at
which he entered his guilty plea, thus calling into question whether his plea was made
knowingly and voluntarily. In the alternative, Harvey contends that in light of his
response to an inquiry by the trial court in which Harvey informed the court that he had
taken certain prescription medications in the past 48 hours in connection with his
treatment for prostate cancer, the trial court (a) failed to make an adequate inquiry as to
whether Harvey had the ability to knowingly and voluntarily relinquish his rights and
plead guilty, and/or (b) failed to make an adequate inquiry into the factual basis for the
plea.
Harvey's contentions are without merit. We therefore affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On July 24, 2012, Harvey pled guilty to assault with a deadly weapon or by means
likely to inflict great bodily injury (Pen. Code, § 245, subd. (a)(1)),1 and admitted that he
1 Further statutory references are to the Penal Code unless otherwise specified.
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had personally used a deadly weapon in connection with the assault (§ 1192.7, subd.
(c)(23)). Harvey also admitted that he had suffered one prior strike conviction within the
meaning of section 667, subdivisions (b)-(i) and section 1170.12.
As the factual basis for his guilty plea, Harvey admitted to the allegations in the
charging document, i.e. that he personally used a cane to attack the victim, David
Kozlowski.
Pursuant to the terms of Harvey's negotiated plea agreement, the trial court
sentenced Harvey to a term of four years in state prison.
Harvey filed a timely notice of appeal.
III.
DISCUSSION
Harvey contends that he should be permitted to withdraw his guilty plea on the
ground that the plea was not entered into knowingly or voluntarily. Harvey suggests that
his acknowledgment at the time he entered his guilty plea that he had taken certain
medications in the past 48 hours rendered his guilty plea unknowing and involuntary.
Harvey contends, in the alternative, that the trial court made an insufficient inquiry into
whether Harvey was pleading guilty knowingly and intelligently, or whether there was a
sufficient factual basis for the plea, after being informed that Harvey had recently taken
certain prescription medications.
A. Additional background
On July 24, 2012, Harvey signed and initialed a change of plea form indicating his
agreement to a plea deal pursuant to which he would agree to plead guilty to one count of
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assault with a deadly weapon, and in exchange for his guilty plea, the People would
dismiss the remaining charges against him and would seek a sentence of four years.
At the change of plea hearing, the trial court asked Harvey, "Sir, have you had any
alcohol, drugs, or medication in the last 48 hours?" Harvey responded, "No sir—
medication, yes." The court asked Harvey what medications he had taken. Harvey told
the court that he had taken "Tramadol," "Flexeril," and "Tetrazepam." Harvey then
explained to the trial court that he was being treated for prostate cancer. The trial court
asked Harvey, "As a result of this medication, are you having any problems
understanding what we are doing in court?" Harvey responded, "No, sir."
The trial court proceeded to question Harvey about his change of plea form, and
orally reviewed the advisements and waivers included on the form, which Harvey had
initialed and signed. Harvey repeatedly indicated that he understood the plea agreement
and the consequences of his decision to plead guilty. The court asked Harvey, "And
you're entering your plea freely and voluntarily because you believe it's in your best
interest?" Harvey responded, "Yes, sir."
Defense counsel concurred with Harvey's waiver of rights and change of plea.
The trial court made a finding that Harvey had made a "knowing, voluntary waiver of
rights," and that there was a "sufficient factual basis" for the plea. The court granted the
People's motion to dismiss the remaining counts, and sentenced Harvey to a four-year
prison term, pursuant to the terms of the plea agreement.
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B. Analysis
A guilty plea is valid as long as the record affirmatively shows that the plea is
voluntary and intelligent under the totality of circumstances. (People v. Mosby (2004) 33
Cal.4th 353, 361.) A guilty plea is voluntary and intelligent when (1) it is made with the
advice of competent counsel; (2) the defendant was made aware of the nature of the
charges against him; (3) the plea was not induced by harassment, improper threats of
physical harm, coercion, or misrepresentations; and (4) there is nothing to show that the
defendant was incompetent or otherwise not in control of his mental faculties. (Brady v.
United States (1970) 397 U.S. 742, 750-756.)
Harvey contends that this court should set aside his guilty plea because the plea
was not knowingly and intelligently made, and was therefore involuntary, in that he may
have been mentally impaired by the prescription medications that he had taken within 48
hours prior to the hearing.
As the People point out, however, Harvey has forfeited this claim on appeal
because he never made a motion to withdraw his plea in the trial court. As a general rule,
"an appellate court will not consider claims of error that could have been—but were
not—raised in the trial court. [Citation.]" (People v. Vera (1997) 15 Cal.4th 269, 275.)
Section 1018 authorizes a defendant to move to withdraw his plea "at any time before
judgment." (See People v. Cruz (1974) 12 Cal.3d 562, 566, fn. 5.) The record
demonstrates that at the time Harvey pled guilty, both Harvey and his attorney were
aware of the circumstances that Harvey now alleges may have rendered his plea
involuntary. At the change of plea hearing, Harvey did not indicate in any way that his
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mental faculties were impaired, and in fact, he indicated that they were not. Further,
Harvey never made any subsequent motion to withdraw his plea.
Because Harvey failed to move to withdraw his plea in the trial court, the vast
majority of the "evidence" on which Harvey relies in arguing on appeal that his plea may
have been involuntary is simply not a part of the record in the trial court or on appeal.
For example, Harvey now argues that the medications that he indicated to the trial court
he had taken, apparently as part of his treatment for prostate cancer, may have affected
his mental faculties. As support for this contention, Harvey proffers what he maintains
are the possible side effects of these drugs, and relies on various Internet sources as
support for his claim that these particular drugs may produce the side effects that he cites.
However, none of this information was presented as evidence in the trial court, and it is
not part of the record on appeal. By failing to move to withdraw his guilty plea in the
trial court and failing to present evidence in the trial court to support his contentions,
Harvey has forfeited his claim on appeal that his guilty plea was involuntary as a result of
the medications that he had taken in the 48 hours before entering a plea of guilty. (See
People v. Marsh (1984) 36 Cal.3d 134, 140; People v. Massie (1967) 66 Cal.2d 899,
910.)
We also reject Harvey's contention that the trial court's inquiry into his ability to
make a knowing and voluntary plea was insufficient given Harvey's statement to the trial
court that he had taken certain medications. The trial court asked Harvey whether the
medications were affecting his ability to understand what was happening in court, and
Harvey responded in the negative, indicating that he was not having a problem. In
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addition, Harvey's trial counsel raised no concerns as to Harvey's capacity to knowingly
and voluntarily enter a plea. Under these circumstances, the trial court was under no duty
to inquire further about the medications that Harvey had taken, or their potential side
effects.
Harvey's suggestion that the trial court's inquiry as to the factual basis for the plea
was insufficient in light of Harvey's having mentioned that he had taken various
medications is similarly without merit. In making this argument, Harvey appears to
contend that the trial court should have sought out additional facts to support the plea
because of Harvey's mental state at the time. However, this argument presupposes that
Harvey's mental state was impaired in some way. Again, there is no evidence in the
record that Harvey's mental state was impaired, much less sufficiently impaired to require
the court to meet some heightened standard for ascertaining whether there was a
sufficient factual basis for the guilty plea. The trial court relied on the facts alleged in the
charging document, asking Harvey whether he "did unlawfully commit an assault upon
David Kozlowski and personally used a deadly weapon, an instrument, to wit, a cane,"
and whether he had "suffered a prior strike conviction in 2003." Harvey admitted to
these facts, thereby providing a sufficient factual basis for the plea. (See People v.
Holmes (2004) 32 Cal.4th 432, 442 [if the trial court examines the defendant regarding
the factual basis for the plea, it is sufficient for purposes of establishing the factual basis
for the plea to "question the defendant regarding the detailed factual basis described in
the complaint or written plea agreement"].)
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IV.
DISPOSITION
The judgment of the trial court is affirmed.
AARON, J.
WE CONCUR:
NARES, Acting P. J.
HALLER, J.
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P. v. Harvey CA4/1
Combined Opinion