Filed 7/12/21 P. v. Barnett CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C091098
Plaintiff and Respondent, (Super. Ct. No. 18F2910)
v.
JAMES RYBURN BARNETT,
Defendant and Appellant.
Defendant James Ryburn Barnett pleaded guilty to two counts of committing a
lewd act by force in exchange for a stipulated sentence. He appeals the denial of his
motion to withdraw his plea contending: (1) at the time of his plea his free will was
overcome by duress, specifically the trial court’s involvement in, and comments during,
plea discussions; and (2) his appointed counsel1 had a conflict of interest and therefore he
1 Because two different attorneys represented defendant during these proceedings, the
attorney who represented defendant through the plea will be referred to as appointed
1
received ineffective assistance of counsel. Because the trial court’s comments prior to
the plea caused defendant to enter his plea under duress and he has shown resulting
prejudice, we conclude defendant’s motion to withdraw should have been granted. Based
on this conclusion, we need not address defendant’s other claim regarding ineffective
assistance of counsel. We reverse the judgment and remand with instructions to allow
defendant to withdraw his guilty plea, should he continue to pursue withdrawal after
remand, or reinstate the judgment if defendant does not timely pursue his motion to
withdraw.
BACKGROUND
The substantive facts underlying the offenses are not relevant to the disposition on
appeal and are not recounted in detail. Two of defendant’s grandchildren reported to
their mother that, years earlier, defendant had repeatedly molested them by
inappropriately touching them. At least one molestation included digital penetration.
An information charged defendant with sexual penetration with a foreign object on
a victim under 14 years old (Pen. Code, § 289, subd. (j)),2 four counts of lewd or
lascivious acts with a child under 14 years old (§ 288, subd. (a)), and two counts of lewd
or lascivious acts by force (§ 288, subd. (b)).3 The information also alleged defendant
committed the section 288 offenses against more than one victim and was therefore
eligible for a sentence of 15 years to life (§ 667.61, subd. (b)).
The parties engaged in plea negotiations. Appointed counsel discussed various
plea options with defendant as early as one month before entry of the plea. She also
counsel and the attorney who represented defendant in the postplea motions will be
referred to as retained counsel.
2 Undesignated statutory references are to the Penal Code.
3 These last two charges were added to the complaint by stipulation of the parties so the
charges could be used to get to the agreed 16-year sentence.
2
discussed with him the victims’ statements and his recorded interview with law
enforcement, explained he was facing a potential life sentence, and advised him she was
concerned there was a high likelihood of conviction given the police reports, recorded
interview, and his admissions. Defendant indicated in his discussions with appointed
counsel that he wanted to resolve the case and enter a plea to minimize his sentencing
exposure. With defendant’s agreement, appointed counsel made a number of plea
counteroffers to the district attorney, including one for a 10-year term. Although
defendant initially admitted the digital penetration to appointed counsel, he denied the
other claims, including all of those involving the second victim. As plea discussions
continued, defendant was “waffling” on whether he should enter a plea. Defendant also
told appointed counsel his statements in the police interview had been misinterpreted.
They were not admissions, but “him recounting his understanding of the allegations made
against him.” He told her during the plea discussions he felt “it was unfair.”
At a pretrial settlement conference, the trial court addressed defendant regarding
the case. It stated:
“[Defendant], I wanted to have a couple discussions with you before – well, a
discussion with you before I confirm your trial date because I think sometimes it’s
important to put your cards on the table, and I’ve been talking to the lawyers about what
you’re facing and what the facts of your case include. And so I want to remind you, and I
don’t want to embarrass you or shame you in any way, but I want to remind you your
case, if you were to go to trial and get convicted of all the counts, you would be receiving
life in prison. So you would not receive any opportunity to be out of custody for the rest
of your life.
“And I want to remind you that the evidence against you is strong. I know you
have family members here that are supportive of you and want you to go to trial and fight
the charges, and that’s certainly a position to take. But they’re not you, and they’re not
the ones that are facing the rest of their lives in prison. I asked the lawyers for some of
3
the information from the case, and first of all, as you know, these are your biological
daughter’s adopted daughters. The allegations are that over the course of years, and this
is some time ago, you did have skin-to-skin contact with these girls. You did touch them
directly on the vagina. You did penetrate them and you did admit this to your daughter
and you made some incriminating statements at the time of your interview.[4] So it’s on
tape. It’s there for the world to see. The jury will hear it.”
Defendant asked to speak, and the trial court told him to “hold on.” The court
continued, “I just want you to listen. There’s going to be a transcript of what you said,
and the jury will get a copy of that transcript. And they’re going to follow along with
you, listening to your voice say these things. So I wanted to remind you that you wrote a
letter apologizing to [the victims] . . . . This is your handwriting.”
4 The court was referring to a one-hour recorded interview with Shasta County Sheriff’s
Deputy Timothy Wiley. During the interview, defendant initially denied the accusations
and said his actions had been misinterpreted. Later during the interview, when the officer
said he was 100 percent certain defendant had molested the girls and a lengthy discussion
about how lies build and become an avalanche, defendant stated, “I guess I did it, I don’t
know.” At different points in the interview, defendant denied the allegations, indicated
that he and the girls were just playing, admitted a single incident of digital penetration
with one of the girls might have happened, stated the victims were exaggerating the
frequency of molestation, and admitted the girls were telling the truth. He said, “one
thing led to another,” and when asked if the one victim had been “asking for it,”
defendant answered, “a little bit,” and he also claimed both victims were flirtatious with
him. The victims were 9 and 12 years old when they were molested, and approximately
16 and 19 years old when the complaint was filed and this interview occurred. At
Wiley’s suggestion and with his encouragement that “sometimes these things go a long
ways,” defendant wrote a letter of apology to both of the girls, saying “I want to tell both
of you I am very sorry about [what] I’ve done to you. Please forgive me it will not
happen again I love both of you very much Grampa.”
During the interview, defendant also indicated that the girls had been molested by an
uncle before his daughter adopted them. Defendant had difficulty providing clear
answers and repeatedly indicated he had a hard time remembering what had just
happened, let alone what happened years earlier.
4
The court then quoted the apology letter and stated “I want to remind you of what
you told the officer. This is on tape.”
Appointed counsel interjected and an unreported sidebar conference was held.
Appointed counsel later testified5 she had asked the trial court to stop its comments. She
acknowledged while it was not uncommon for the court to reiterate what a defendant is
facing if they go to trial, the court was discussing some of the evidence that the People
had discussed in chambers. As such, appointed counsel felt the discussion was “going
beyond the point where it’s informing [defendant] of his . . . options or his risks, and
approaching a place where it may have been putting pressure on him.” Appointed
counsel asked the court to stop its statements because “it was no longer productive and I
didn’t want any unfair pressure put on [defendant].” Appointed counsel also agreed that
she felt the judge had “gone over the line in attempting to persuade [defendant] to take
the deal.” However, counsel did note during her testimony that she had told defendant he
would most likely be convicted at trial; counsel also opined in response to a question
from the prosecutor that defendant was not under “the legal definition of duress” at the
time of his plea.
After the sidebar conference, the trial court continued:
“So, [defendant], once again, your lawyer is probably giving you copies of the
documents that summarize some the things that you had said. So what I want to remind
you, importantly, is this: You better reread what you said. You better take a look at it,
because I’m sure that if it hasn’t been transcribed, it will be transcribed. You admitted to
the allegations. You did, and you made some statements that if a jury was to hear these
5 This testimony occurred during the hearing on the motion to withdraw the plea, which
was held before the same judge who had presided over the plea discussions and made the
comments to defendant.
5
things – I don’t think they would have any difficult determining that you are responsible
for the charges.
“I’m telling you that not as the trial judge, I won’t be handling your trial. I sit here
in this department and I resolve cases every day and I’ve been doing it for years now. All
I can tell you is looking at your case, it would not be a case that would be successful
before a jury. So I want you to seriously think about whether or not you really want to go
to trial, whether you want to do this, because you’re going to be the one picking that jury
with your lawyer, selecting those people from the community that are going to make a
decision about what happens. And then you’re also going to be the one that’s going to be
sitting there at the counsel table when these girls testify. And I assume other relatives are
going to be testifying, too, and then you’re going to be the one sitting there when the
People play the tape that you spoke to the officer about.
“So I am just saying this because sometimes you need to have a little reality check.
You know, you – I understand that this may have been something beyond your
experience ever in your life other than during the times that it happened, and I am sure
you have great regret, but you’ve got to be real particular about what your case is – what
you are facing.
“So I – I am not – okay. Let me back up and also say this: You have an absolute
right to take your case to a jury trial, absolute right, and you have – I don’t want to in any
way suggest to you that you not do what you should do or want to do. And your lawyer
is an excellent lawyer and she is going to give you great advance [sic] and she is going to
be a great trial lawyer for you, if you decide to want to go to trial. She’ll do everything in
her power to help you in your case. [¶] . . . [¶]
“. . . So I don’t want you to think in any way I’m trying to talk you out of going to
trial because you have that right, but I do want to give you the benefit of some
experience, my experience, in seeing these cases that we see on a regular basis here in
court and, sadly, we see go to trial and we see what happens.”
6
Defendant then conferred with his counsel briefly and counsel confirmed the trial
date. The trial court offered that it would remain available in the event that “there’s any
change in position.” The court then took a recess, and when it reconvened that same
afternoon, the court was immediately notified that defendant would plead guilty to the
two counts of lewd and lascivious conduct with force, pursuant to People v. West (1970)
3 Cal.3d 595 as to the issue of force, for a stipulated sentence of 16 years in state prison.
In taking the plea, the trial court asked defendant whether he had been made any
promises beyond those spoken about in court, whether he had been threatened in order to
get him to enter the plea, whether he was under the influence of anything that would
affect his judgment or ability to think clearly. Defendant’s responses in the plea
exchange are far from resolute and detailed here:
“THE COURT: What is your plea to the charge of lewd acts by force as to Victim
Number 1?
“THE DEFENDANT: Guilty, I guess.
“THE COURT: Okay. Are you guilty?
“THE DEFENDANT: I guess.
“THE COURT: Well, it’s not something you guess about. Either you’re guilty or
you’re not guilty.
“THE DEFENDANT: The problem I’m having with this, what’s on that tape, my
daughter -- is what my daughter told me.
“(An off-the-record discussion was held with attorney/client.)
“THE DEFENDANT: Just go guilty.
“THE COURT: Okay. So are you, in fact, guilty of the crime in Count 6?
“THE DEFENDANT: I can’t hear you.
“THE COURT: Are you, in fact, guilty of the crime as charged in Count 6?
“THE DEFENDANT: Yes, I guess.
7
“THE COURT: And Count 7 is the same count. That would be lewd or lascivious
acts by force on Victim Number 2. What is your plea?
“THE DEFENDANT: Yes.
“THE COURT: Guilty?
“THE DEFENDANT: Guilty, I guess.
“THE COURT: Counsel, do you join in these pleas?
“THE DEFENDANT: There was no force in it.
“[APPOINTED COUNSEL]: And, Your Honor, for the record, and I think the
Court indicated this earlier, that the change charge alleging force was a stipulated
agreement to reach a specified term.
“THE COURT: Right.
“[APPOINTED COUNSEL]: But the factual allegations were not indicative of
any force.
“THE COURT: True. So, essentially, you’re admitting to the force only to get
this 16 years of prison, is that correct?
“THE DEFENDANT: Yes.
“THE COURT: Okay. So it’s a People versus West as the element of force.
Other than that, it’s a guilty plea as to the offense itself.
“THE DEFENDANT: Are they saying that it was forced?
“THE COURT: No. No. You’re -- you are entering this plea, and because we
want to get to a stipulated term, the element includes force, but you’re not agreeing to
that force. You’re just agreeing to the sentence, is that right?
“THE DEFENDANT: I didn’t have no sex with them.
“THE COURT: Sentence.
“THE DEFENDANT: Oh, sentence.”
Defendant indicated on the plea form he had not been threatened to enter the plea.
He also indicated he was entering the plea voluntarily and of his own free will. The trial
8
court found that although defendant had some concerns based on the length of the term,
he had knowingly and intelligently given up his rights, and the plea was voluntary.
Approximately two months after entry of the plea, and before judgment was
entered, defendant obtained new counsel who filed a motion to withdraw his plea. The
motion argued, among other things, that defendant should be permitted to withdraw his
plea on the grounds he was unduly influenced by the court’s comments, which overcame
his free judgment. The motion proffered that defendant would testify he “would not have
entered the plea had he not been pressured by the judge to do so,” and the court’s
comments that his admissions on tape would be there for the world to see pressured him
out of fear of public embarrassment. The motion included a short declaration by
defendant that indicated, among other things, that defendant did not “remember what the
Judge said other than her saying fifteen years then saying that was a mistake and said
sixteen years, eight years per child” and that “after the judge spoke to [him], [he] felt like
[he] didn’t see [he] had any choice. . . . [He] didn’t know [he] didn’t have to take the
plea” and “felt [he] had no choice but to plead guilty after the judge spoke to” him.
Defendant’s appointed counsel testified at the hearing on the motion, including
specifically about the sidebar discussions with the court about its plea discussions with
defendant. In the context of addressing allegations of ineffective assistance of counsel
made against her by defendant’s new attorney, she also testified as to some of the
avenues she had been pursuing as part of the defense. She sought, but had not received,
juvenile records that potentially indicated the victims had been sexually abused by
someone other than defendant, and that the victims might have been wrongfully
attributing that conduct to defendant. Defendant had identified someone he thought
might have sexually assaulted the victims in the past. Other family members also
reported mother had a history of “unsavory boyfriends,” who they felt might have
engaged in inappropriate conduct with the victims. Appointed counsel’s investigator had
also discovered that the victims’ mother had been married to a man, David Bull, who had
9
lived with mother and the victims during the relevant time period. Bull had had a nude
photograph on his computer of one of the victims and had subsequently been convicted of
child molestation and possession of child pornography.6 Appointed counsel had
requested, but not received before the plea, the recorded interviews or statements of
mother or the victims. This information was necessary to explore any possible
inconsistencies in their statements. As to defendant’s interview, she considered getting
an expert to testify as to false confessions. And, she was developing other ways to
challenge the reliability of the statements of the victims. Some family members had
suggested mother had a motive to falsely report the molestations. The victims and
mother refused to speak with investigators. The public defender’s files indicate that
mother had told family members she wanted the charges dropped, the victims were
refusing to testify, and mother would be contacting the district attorney’s office to let
them know the girls would not cooperate.
Defendant testified that the court talked to him on the day of the plea and told him
if he took the matter to trial he would “never see daylight again.” Defendant’s testimony
is recounted here:
“[RETAINED COUNSEL]: Okay. Now, when Judge Beatty talked to you that
last day that [appointed counsel] represented you, do you remember how what she said
made you feel?
6 Defendant’s appointed counsel also represented David Bull in those criminal
proceedings. That prior representation served as the basis for the claim defendant
received ineffective assistance of counsel based on a conflict of interest. The trial court
did not let counsel explore this prior representation or any conflict of interest in the
motion to withdraw hearing because it considered the matter outside the scope of the
motion to withdraw.
10
“[DEFENDANT]: Well, the last day that she talked to me, she told me if I went –
if I took it to trial, I would – I’d never see daylight again. In prison. And if I took the
deal, it’d be – it would be 16 years.
“[RETAINED COUNSEL]: Okay. And how did that make you feel?
“[DEFENDANT]: Not very good.
“[RETAINED COUNSEL]: Okay.
“[DEFENDANT]: For something I didn’t do.”
And when asked why he took the 16-year deal, defendant responded “I thought [it]
was a better choice than . . . not getting to see daylight again.”
In making its ruling, the trial court noted it was defendant’s burden to produce
evidence of good cause to withdraw his plea. It stated it had no “doubt as to whether or
not [defendant] willingly, thoughtfully, and knowing all of the facts that were there, he
knew what happened. He’s the gentleman that knows, beyond anyone else, what went
on. And at that time . . . he entered a plea. And he did it at a time when the family
wasn’t present. And that’s my recollection, that he didn’t want them here. [¶] So, even
if I’m wrong in that recollection, the point being, he entered that plea and that was his
intention. His intention. He did not want to subject those little girls to that trial. And he
said as much in the letter that was discussed between Counsel and the Court when we
were back in Chambers. So my point being is that I observed the change of plea and I
find that [defendant] did, in fact, intend to take this plea and he took it willingly,
voluntarily, and with full knowledge of the consequences.” Accordingly, the court
denied the motion to withdraw the plea.
The trial court sentenced defendant in accordance with the plea to 16 years in
prison, and awarded him 624 days of presentence custody credits. The court did not
order defendant to pay any restitution fines, probation or parole revocation fines,
operations assessments, or criminal conviction assessments.
The trial court granted defendant’s request for a certificate of probable cause.
11
DISCUSSION
Defendant contends the trial court abused its discretion when it denied his motion
to withdraw his plea based on the court’s statements at the pretrial hearing. He contends
these statements effectively coerced him and rendered his plea involuntary.
“A guilty plea may be withdrawn any time before judgment for good cause shown.
(Pen. Code, § 1018; [citation].)” (People v. Hunt (1985) 174 Cal.App.3d 95, 102; accord,
People v. Cruz (1974) 12 Cal.3d 562, 565.) The defendant must establish good cause by
clear and convincing evidence, and in order to establish good cause, the defendant must
show that, when the guilty plea was entered, the defendant was operating under mistake,
ignorance, inadvertence, fraud, duress, or any other factor which overcame the
defendant’s free will or judgment. (Cruz, at p. 566; People v. Dillard (2017)
8 Cal.App.5th 657, 665.)
By its terms, section 1018 requires courts to err on the side of granting a motion to
withdraw a plea, and when in doubt, a prejudgment motion to withdraw a plea should be
granted. (People v. Spears (1984) 153 Cal.App.3d 79, 87; see People v. Patterson (2017)
2 Cal.5th 885, 894.) “ ‘[T]he withdrawal of a plea of guilty should not be denied in any
case where it is in the least evident that the ends of justice would be subserved by
permitting the defendant to plead not guilty instead; and it has been held that the least
surprise or influence causing a defendant to plead guilty when he has any defense at all
should be sufficient cause to permit a change of plea from guilty to not guilty.’ ” (People
v. Huricks (1995) 32 Cal.App.4th 1201, 1210.) “ ‘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.’ [Citations.]” (Id. at p. 1208;
see People v. Weaver (2004) 118 Cal.App.4th 131, 146 (Weaver).)7 Defendant must also
7 Defendant claims that we should apply the de novo standard of review to the denial of
his motion to withdraw his plea, as the underlying substantive right being asserted, the
12
demonstrate prejudice, that is, that he would not have accepted the plea had it not been
for the improper factor. (People v. Breslin (2012) 205 Cal.App.4th 1409, 1416.) A
defendant “has a constitutional right to be free of duress as he pleads to a criminal
charge.” (People v. Williams (1969) 269 Cal.App.2d 879, 885.)
“Generally, sound discretion ‘is compatible only with decisions “controlled by
sound principles of law, . . . free from partiality, not swayed by sympathy or warped by
prejudice . . . .” [Citation.]’ [Citation.] ‘ “[A]ll exercises of legal discretion must be
grounded in reasoned judgment and guided by legal principles and policies appropriate to
the particular matter at issue.” ’ [Citations.] [¶] A trial court abuses its discretion when
the factual findings critical to its decision find no support in the evidence.” (People v.
Cluff (2001) 87 Cal.App.4th 991, 998.)
Although California law does not preclude judicial involvement in plea
negotiations, “ ‘courts have expressed strong reservation[s] about the practice.’
[Citation.]” (People v. Sandoval (2006) 140 Cal.App.4th 111, 124 (Sandoval); id. at pp.
123-124; Weaver, supra, 118 Cal.App.4th at p. 148.)
There are at least three reasons why courts should be cautious in becoming
involved in plea negotiations. “First, it diminishes the possibility of judicial coercion of
guilty pleas regardless of whether the coercion actually results in an involuntary plea.
Second, such involvement may impair the court’s impartiality since a judge who suggests
or encourages a plea bargain may feel a personal stake in an agreement and may resent a
defendant who rejects the court’s advice. Third, judicial participation in plea discussions
creates a misleading impression of the judge’s role. A judge participating in plea
negotiations can often appear not to be a neutral arbiter but rather an advocate for the
voluntariness of the plea, is reviewed de novo. Defendant has not cited, and independent
research has not revealed, any authority for applying a special standard of review to
motions to withdraw a plea based on the underlying right asserted. We decline to adopt
one here.
13
resolution that the court has suggested.” (Weaver, supra, 118 Cal.App.4th at pp. 146-
147.)
However, “not every instance of judicial involvement in plea negotiations results
in duress.” (Weaver, supra, 118 Cal.App.4th at pp. 149-150.) A court’s involvement in
plea negotiations is not a concern where the judge is able to “maintain total neutrality and
at the same time probe continually for a common meeting ground.” (Id. at p. 148.)
“Judges can, in appropriate cases and in a reserved manner, play a useful part in that
process. However, when the trial court abandons its judicial role and thrusts itself to the
center of the negotiation process and makes repeated comments that suggest a less-than-
neutral attitude about the case or the defendant, then great pressure exists for the
defendant to accede to the court’s wishes.” (Id. at p. 150.) If the record does show that a
trial court became overly involved in plea negotiations and applied undue pressure to
coerce a defendant into pleading guilty, the court has abused its discretion, the plea is not
voluntary, and the defendant should be allowed to withdraw it. (Sandoval, supra,
140 Cal.App.4th at pp. 125-127.)
Defendant rests his claim of judicial coercion primarily on Weaver, supra,
118 Cal.App.4th 131. In Weaver, a child molestation case, the trial judge repeatedly, and
at a number of pretrial hearings, urged the defendant to accept the prosecution’s plea
offer. The trial judge noted defendant’s potential sentence was quite severe, the alleged
acts were predatory, and expressed concern about the victims being forced to testify. (Id.
at pp. 135-138.) The court stated in its experience it was much better to resolve these
cases by a plea, and the parties had to be realistic. (Id. at p. 136.) Based on images found
on Weaver’s computer, the court opined a sentence of 15 years to life would be fair. (Id.
at p. 135.) The trial court informed Weaver that the case would change once the victims
testified before the jury and it would be much more emotional. (Id. at pp. 135-136.)
The trial court indicated it would probably admit testimony of additional victims
in uncharged matters and allow admission of some of the child pornography found on the
14
Weaver’s computer. The court characterized the prosecution’s evidence as strong,
damning, and overwhelming. (Weaver, supra, 118 Cal.App.4th at pp. 137-139.) The
court also stated that the evidence demonstrated Weaver was a pedophile in denial, and
opined that in view of the evidence, he would be convicted. (Id. at pp. 137-138.) The
court stated photographs would expose the jury and the little girls to the “ ‘monster in the
closet’ ” and “ ‘the ugliness, the warts, the green stuff dripping from its mouth and the
horns and the smell.’ ” (Id. at p. 138.) And, the trial court repeatedly stated the trial was
going to be ugly. (Ibid.) On the date the matter was set for trial, Weaver entered into a
plea agreement. (Id. at p. 140.)
Weaver filed a motion to withdraw his plea, claiming his plea was entered under
duress, in that he had felt pressured to accept the plea by counsel’s urging and the trial
court’s statements and apparent attitude during the proceedings. (Weaver, supra 118
Cal.App.4th at pp. 141, 149.) Weaver indicated the trial court’s comments had been a
major source of pressure that led to his plea. (Id. at p. 149.) The trial court denied the
motion. (Id. at pp. 141-145.) The Court of Appeal concluded the trial court had crossed
the line from neutral mediation to advocacy given its statements that defendant would be
convicted, his concern about the victims having to testify, and the level and manner of its
involvement in the negotiations at that particular stage of the proceedings. The Court of
Appeal also concluded these comments suggested a “less-than-neutral attitude about the
case or the defendant,” which exerted “great pressure” on the defendant to accept the
plea. (Id. at pp. 149-150.) Accordingly, the Court of Appeal reversed the denial of
Weaver’s motion to withdraw his guilty plea based upon the coercive comments of the
trial judge during plea discussions. (Id. at p. 150.)
Certainly, the trial court here did not go as far as the court in Weaver, the
comments to defendant occurred over the course of one hearing and were not as
inflammatory in describing the nature of the case and the evidence. And, we do not
doubt it was the court’s intention to facilitate a plea bargain in everyone’s interest.
15
However, the court’s comments were not so limited as to maintain total neutrality.
Rather, the comments implicated the very concern raised in Weaver, that by its
involvement in the plea discussion, the court appeared to not be a neutral arbiter but
rather an advocate.
The trial court did not restrain its comments to seeking a common meeting ground
between the parties such as advising defendant of his likely sentence if convicted,
including actual time likely to be served, procedural matters, or the process of a trial.
Rather, the court recited the evidence against defendant, characterized it as strong, and
stated it would be admitted and that the jury and his family would hear it.
The court repeatedly stated defendant “did” the specific acts underlying the
charges, such as having skin-to-skin contact and digitally penetrating the victims, and had
made incriminating statements to the law enforcement officers, rather than merely
pointing out that the People purported to have admissible evidence in that regard. The
court emphasized all of that evidence would be admitted before the jury, in defendant’s
own words and voice. The court read aloud defendant’s letter apologizing to the victims.
Then, despite appointed counsel interjecting and advising the court she believed it was
crossing the line from neutrality to placing undue pressure on defendant, the court
continued. It told defendant he “better reread” what he had said in the interview and his
admissions, because a jury hearing those things would not find it difficult to convict him.
The court mentioned its years of experience and informed defendant of its opinion, based
on that extensive experience, that defendant would be convicted. The court also told
defendant that in a trial, the girls and other family members would testify. The court
stated it was giving defendant a “reality check” and that it saw regularly, “sadly” what
happens when cases go to trial. Even after counsel announced they would confirm the
trial date, the trial court reminded defendant and counsel that: “I’m saying to you, you
can place the matter back on calendar if there’s any change in position. Okay?” As in
Weaver, the court repeatedly characterized the state of the evidence against defendant,
16
and encouraged the defendant to take a plea since he was facing a long period of prison
time, and that based on its experience, the defendant would be convicted. (Weaver,
supra, 118 Cal.App.4th at pp. 135-138.) In so doing, the court did not maintain its
neutrality during the plea discussions. (Sandoval, supra, 140 Cal.App.4th at p. 127.)
While the trial court’s statements may have been accurate, as far as they went,
they did not maintain the neutrality required of a judge trying to get the parties to agree to
a plea. That the court did not maintain its neutrality is further evidenced by the fact the
court did not exert equal pressure on the prosecution to move toward any common
ground to facilitate a plea agreement. The court did not suggest any weaknesses that
might exist in the prosecution’s case. At the time of these comments by the court,
appointed counsel had not completed her investigation and had not received information
on other possible suspects, at least two of whom had been specifically identified. Those
investigations could have exposed vulnerabilities in the prosecution’s case and the
credibility of the reporting parties, including inconsistent statements, confusion by the
victims in identifying the perpetrator of their molestations, or motive for falsehoods by
mother. In addition, there was an indication that the victims and mother would not
cooperate at trial, potentially undercutting the strength of the prosecution’s case. The
court’s comments also assume, and state, the evidence of the police interview would be
admissible at trial, a fact not established at the time of the plea. Moreover, in the police
report of the interview, defendant’s statements appear to be more clearly admissions than
they might appear to a jury hearing the actual recording of the interview in which the full
context of the statements is available. The interview itself included defendant’s denials,
his uncertainty in many responses, his claims of memory difficulty, and the nature of the
officer’s questioning which led to the admissions. Defendant’s family members
potentially provided additional context for the statements in the interview. The family
members described defendant as “simple” and easily influenced, and could have testified
to that effect. Defendant also had significant familial support and no criminal record,
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factors which might have made him more sympathetic to a jury. We are not saying by
these observations that defendant would be successful if the matter went to trial. We are
only pointing out that the court’s statements discussing the strength of the case against
defendant provided only one side of the case and did not appropriately maintain the
neutrality required of the court in plea discussions.
Defendant had been engaging in plea discussions with appointed counsel for at
least one month before the court’s comments. During those discussions, appointed
counsel advised him of many of the challenges he faced if he took this matter to trial.
Despite her advisements, before the court’s comments, defendant maintained his
innocence as to many of the allegations, offered an explanation for his incriminating
statements in the interview, and vacillated over wanting to enter a plea at all. Even as he
changed his plea to guilty, he could only respond “I guess” when asked if he was guilty
of the charges. As we have set forth in detail above, he testified at the hearing on the
motion to withdraw that the court’s comments to him at the settlement hearing caused
him to feel as though he had no choice other than to plead guilty, or he would never see
the light of day again. He specifically linked the court’s comments to his plea by adding
that pleading guilty was a better choice than “not getting to see daylight again.” After the
court’s comments, he declared that he felt he had no choice but to plead guilty, and the
only evidence to the contrary is the form plea agreement executed the same day as the
coercive hearing at issue here. This further supports the conclusion that the court’s
“remarks served to increase the psychological pressure on” defendant. (Sandoval, supra,
140 Cal.App.4th at p. 126.)
The legal principles and policies governing the trial court’s exercise of discretion
required it to err on the side of granting the prejudgment motion to withdraw the plea,
particularly in a case in which the least influence caused defendant to plead guilty where
there was any defense at all. (People v. Cluff, supra, 87 Cal.App.4th at p. 998; People v.
Huricks, supra, 32 Cal.App.4th at p. 1210.) The court’s comments during plea
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negotiations were more than the “least influence” and there were possible defenses
available to defendant. Based on all the foregoing, we conclude the court abused its
discretion in denying the motion to withdraw on the grounds that the court’s comments
caused defendant to be under duress and prejudiced him.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court with
instructions to allow defendant to withdraw his guilty plea, should he continue to pursue
withdrawal after remand, or reinstate the judgment if defendant does not timely pursue
his motion to withdraw. In the interest of justice, the matter shall be reassigned to a
different judge(s) for any further proceedings.
/s/
HOCH, J.
We concur:
/s/
DUARTE, Acting P. J.
/s/
KRAUSE, J.
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