People v. Senator CA4/1 ( 2021 )

Filed 9/9/21 P. v. Senator CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077983
Plaintiff and Respondent,
v. (Super. Ct. No. 19CF1176)
BRUCE RICHARD SENATOR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Douglas W. Sortino, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A.
Swenson, and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and
Respondent.
In April 2019, Bruce Senator filed documents in the Fourth District
Court of Appeal related to a worker’s compensation case. As a result of
threatening statements regarding five judges and their employees and
families contained in one of the documents, the People charged him with five
counts of threatening a public official with a prior and one count of
threatening a public officer with a prior. After one day of pretrial motions
and jury selection, Senator asked to plead no contest to all charges and to
admit all priors in open court. Before accepting his plea, the court disclosed
that it might grant a Miranda1 motion in Senator’s favor and verified that
Senator understood his rights. Senator pled no contest. Less than a week
later, Senator asked to withdraw his plea, contending he did not voluntarily
enter it because he was under duress at the time. After briefing and a
hearing on the matter, the court denied the motion to withdraw the plea. At
sentencing, Senator asked the court to strike his prior strikes, and the court
declined in part. The court sentenced Senator to seven years and four
months.
Senator appeals, contending the court erred by denying his motion to
withdraw the no contest plea because he was under duress at the time it was
entered, and he maintains that the court abused its discretion when it
declined to strike all the prior strike convictions under Penal Code2
section 1385. We find his contentions lack merit, and we affirm.
I
PROCEDURAL AND FACTUAL BACKGROUND
On April 22, 2019, Senator electronically filed a verified Request to File
New Litigation by Vexatious Litigant in connection with a worker’s
1 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
2 Further unspecified statutory references are to the Penal Code.
2
compensation appeal.3 The document included statements that threatened
violence or torture against several Orange County judges, their families and
employees, and other parties involved in the worker’s compensation matter.
Specifically, the document named five judges and claimed they had
participated in “case-fixing.” Senator wrote that he was “not averse” to the
death of the judges or of any of the judicial officers or officers of the court,
including attorneys, who were involved. He told the court that any of the
judicial officers he believed had participated in “case-fixing” or knew about
case-fixing were “subject to being killed” and that their actions justified
subjecting them to murder and torture because death alone was not enough.
He wrote that what would be appropriate would be to “Break their jaws. Rip
their teeth out. Reach in with pliers and rip their tongues out piece by piece,
cauterizing so they do not bleed to death. Then ball up their shredded
tongues, cut off their cock and balls, and stuff their shredded tongues along
with their cock and balls down their throats letting them choke to death.”
The document also said that the children of the judicial officers were
likewise subject to murder as a “ ‘tool’ to keep people in line.” Senator wrote
that his past “efforts [had] apparently led to judicial officers losing their
lives.”
Several of the named individuals believed the threats were credible and
feared for their safety. The preplea report stated Senator had one handgun
registered to him in 1995, but it was unknown if he possessed the firearm.
3 Senator concurrently filed a related habeas petition (In re Bruce
Senator (D078906)), which we ordered considered with this appeal. By
separate order, we deny the petition. Some of the facts are taken from the
exhibits he attached to his related petition.
3
After his arrest on April 30, 2019, Senator admitted he had filed the
document.
A. Pretrial and Plea Proceedings
On June 11, 2019, the Orange County District Attorney filed an
information charging Senator with five counts of threatening a public official
with a prior (§ 76, subd. (a)(2); counts 1, 3-6) and one count of threatening a
public officer with a prior (§ 71, subd. (a)(2); count 2). The information
alleged a prior conviction under section 76, subdivision (a)(1) with respect to
counts 1 and 3 through 6 and a prior conviction under section 71,
subdivision (1) as to count 2. It also alleged a prior strike conviction (§§ 667,
subds. (d) and (e)(1) and 1170.12, subds. (b) and (c)(1)).
Because the case involved allegations of threats against bench officers
in Orange County, the Orange County bench recused itself from the case and
transferred the matter to Los Angeles County, though Senator remained in
custody in Orange County.
Jury selection began on August 12, 2019. On August 13, 2019, after the
trial court informed Senator it was likely to grant a Miranda suppression
motion at least in part, Senator pled no contest to all the counts and admitted
the strike allegations in open court. The court engaged Senator in the
standard plea colloquy and told him that because there was no negotiated
agreement, Senator would be subject to the maximum sentences allowable by
law.
When the parties appeared for sentencing on August 19, 2019, defense
counsel informed the trial court that Senator wished to withdraw his plea.
Senator filed a written motion to withdraw, arguing he suffered from
physical infirmities and intimidation by Orange County deputies, which
made his plea involuntarily given under duress.
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B. Evidentiary Hearing on Senator’s Motion to Withdraw the Plea
At the evidentiary hearing, Orange County Public Defender’s office
investigator Jennifer Surges, defendant Senator, and Orange County jail
inmate Luis Groharing each testified.
Testimony of Jennifer Surges
Surges met with Senator on July 30, 2019 at the Orange County
Central Men’s Jail to discuss an envelope defense counsel had in her
possession. The envelope contained a slice of cheese that Senator had given
to defense counsel the previous day. Senator had claimed the slice of cheese
had glass in it. Surges observed a slice of American cheese wrapped in
plastic and a speck of something in the cheese. She could not tell what the
speck was, but she could see it was clear and about the size of the tip of a
pencil.
The court admitted the cheese slice and felt it to ascertain whether
there was a bump in it. The parties stipulated that photographs of it were
acceptable substitutes so the cheese could be returned to defense counsel.
Testimony of Defendant Bruce Senator
Senator testified that on June 14, 2019, he had received in his heart
healthy lunch bag a slice of cheese that had what appeared to be a piece of
glass in it. He also found shards of glass almost a half inch in size glued to
the shell of a hardboiled egg. He contacted his inmate representative and
showed him what he found. The inmate representative announced to all the
inmates to check their cheese and eggs for glass; no one else found any glass.
Senator showed the egg with glass on it to several other inmates so they
would know what to look for. He did not know who put the glass in his bag,
and he never discovered glass in any of his food at any other time. This
incident made him fear for his safety.
5
Senator testified that on August 11, the night before trial, around
11:00 p.m. deputies conducted a “mayhem march[ ],” in which they tore up
the cells, and the inmates had to clean up the disarray. This was a search of
the entire dorm, not just Senator’s cell. It left Senator’s legal papers in chaos.
He explained that prior to August 12, for hearings in Los Angeles, he
would be woken at 5:00 a.m. and would have time for breakfast and to
prepare for court before being transported at around 6:50 a.m., but on
August 12, they called him for transport around 5:30 a.m. or 5:40 a.m., so he
did not have time for breakfast before leaving. While he was waiting for
transport, one of the deputies pointed at him and yelled that he was the one
who murdered four people over the weekend, referencing an incident in which
a man stabbed several people in Garden Grove. Senator feared others would
attack him based on the deputy’s comment. He did not report the incident to
anyone at the jail. He was not retaliated against or attacked by any other
inmates after the accusation was made.
Senator also said he was never given a meal on August 12; the first
opportunity he had to eat that day was when he got back to the module in
Orange County. When the court asked if he received lunch over the noon
recess from the Los Angeles County Sherriff’s deputies, Senator replied,
“Sometimes I did. Sometimes I didn’t.” The court emphasized that it was
speaking about August 12 and asked if he received lunch that day, and
Senator responded, “At noon, lunch? Yeah, I got—I got a peanut butter, jelly
sandwich.”
Senator felt sore at the end of the first day of trial; his back was
hurting, and he was physically and mentally exhausted. He said he suffered
from a swelling back, and on days when he was transported via an SUV with
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plastic seats instead of a sedan, it was more difficult to breathe. Being placed
in chains made it difficult to breathe, hold himself up, or concentrate.
On August 13, he was woken earlier and given breakfast, but his back
was still swollen, and he had pain through his legs because he had not
recovered from the previous, long day. He thought about having to go
through the process for two weeks, with pain shooting from his thoracic spine
to his feet to the point where he could not be sharp and a contributor to his
case, so he decided to plead no contest. He wanted to stop the pain in his
back.
When the prosecutor asked why he subsequently changed his mind
about the plea, Senator said it was because he had time to start to “heal up,”
and because his housing placement had been interrupted after the plea. He
decided not to let the sheriff’s department “just destroy [his] ability” to
participate in his defense. Senator reported that on August 15, after he
entered his plea, the Sheriff’s Department removed him from his housing
unit and transferred him to another location, where he did not receive
medication. After two days, the deputies said Senator was being transferred
to Los Angeles County jail and placed him in the transfer module in the
morning. But that afternoon they transferred him back to the processing
module at the central jail for transfer out of county, and a deputy told him
they were going to re-house him. He was returned to his housing module at
about 11:00 p.m. that night.
The prosecutor asked Senator if he understood his rights at the time he
entered the plea, and Senator said he did. Senator told the prosecutor that
he also understood he had the right not to be tortured and he felt he was
being put through torture because his back was so sore, and he did not want
to put up with it anymore. When the prosecutor asked what could have
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changed his physical pain for the trial, Senator said that not having to be
transported between Orange County and Los Angeles would have improved
his situation. He acknowledged someone from medical had cleared him for
trial, but he complained that he was not given an examination before that
determination was made.
Throughout his testimony, Senator repeatedly gave nonresponsive
answers, and the court admonished him.
Testimony of Luis Groharing
Fellow inmate Groharing testified that Senator showed him an egg
with a shard of glass adhered to the side of the eggshell. He did not recall
seeing any glue or adhesive on the shell. He heard there was glass in
Senator’s cheese, but he did not see it. He had never found glass in his food
or heard of anyone else finding glass in their food. He also confirmed there
had been a mayhem search during the two weeks when he was housed next
to Senator.
Court Ruling
Following testimony, defense counsel argued that Senator’s free will
was overcome by factors outside his control, that he felt hopeless, and he had
no other option but to enter the plea. She explained that the glass and the
accusation that he was the Garden Grove stabber were evidence of a
compounding injury, and that evidence—taken together with him being
woken at an earlier time, being transported a distance in tight chains on a
plastic bench, having to sit for long hours with a swollen back, and the court’s
ruling that it did not have jurisdiction to make changes to the Orange County
Sheriff’s policies or procedures—demonstrated Senator was placed under
duress when he entered his plea.
8
The court noted that Senator bore the burden of establishing by clear
and convincing evidence that he was operating under a state of ignorance or
some other factor that overcame the exercise of free will. It concluded that
Senator had failed to substantiate his claims and lacked credibility.
It explained that although Senator claimed a deputy pointed him out as
the Garden Grove stabber and that he did not get medical treatment, he
offered no evidence to support either claim. Senator also did not file a
complaint with the Sheriff at the time.
The court commented that Senator’s answers sounded rehearsed, with
long narratives that accused sheriff’s deputies of misconduct, and it noted
that his affect was odd, laughing at inappropriate times. It concluded he
lacked credibility. The court offered an example: After testifying that he did
not get breakfast one morning and did not eat until he was returned to
Orange County that evening, when the court asked him if the deputies in Los
Angeles fed him lunch, Senator hesitated as if he were trying to figure out
how to answer the question. The court believed Senator had “an agenda, a
narrative, and he [was] pushing it regardless of the truth,” so it found he
lacked credibility.
The court also expressed concern that Senator’s position was that
because of his medical condition, he was incapable of entering a knowing,
voluntary, intelligent plea, and while it was a hassle to travel from Orange
County to Los Angeles, that was a fact of the case because of conduct that he
had admitted, making threats against Orange County judges. It did not
believe that Senator’s will was overcome by pain and exhaustion in this case;
it found Senator to be manipulative and to lack credibility, and it therefore
did not find there was sufficient evidence to support the motion to withdraw
the plea.
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C. Sentencing
At the sentencing hearing, the prosecution argued Senator had a
lifetime of making threats and said that he had been unsuccessful with
probation and parole.
The nature and circumstances of the felony were extremely aggravated
because the document threatened family members, and Senator wrote that
he had been responsible for judges’ deaths in the past. Although the court
indicated it believed Senator was someone with serious psychological issues
who was in part delusional, the threats to bench officers and their family
members, including underage children, were aggravating.
The court also noted threats were made against five different judges,
one who was presiding over the appeal that prompted the filing and one who
had previously prosecuted him, demonstrating Senator harbored grudges and
lashed out when he had the opportunity.
Senator had not taken advantage of opportunities to rehabilitate after
committing similar offenses in the past; he was unsuccessful with probation
and parole, and he repeatedly committed the kinds of offenses for which he
was appearing before this court. The court commented that as a practical
matter, it believed Senator was a threat out of custody and could not be relied
upon to follow through with appropriate mental health treatment.
The court exercised its discretion under Romero4 to strike the strikes
as to some of the counts and to allow for concurrent time on the counts that
involved judges incidental to Senator’s direct dealings. It retained the strikes
as to counts 1, 2, and 6. It applied section 654 to count 1. It struck the
strikes on counts 3, 4, and 5.
4 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
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The court sentenced Senator to three years on count 2, doubled to six
years for the strike, and to one-third the midterm of two years on count 6,
which is eight months doubled to 16 months for the prior strike. It also
sentenced him to three years, doubled to six years because of the prior strike,
as to count 1, but applied section 654 and stayed that part of the sentence
pending completion of the sentence in count 2. For counts 3, 4, and 5, the
court struck the prior strikes and imposed two years to run concurrently.
The total sentence was seven years and four months.5
Senator timely appealed.
II
DISCUSSION
A. Denial of Motion to Withdraw Plea
1. Burden of Proof and Standard of Review
A trial court may permit a defendant to withdraw a guilty or no contest
plea if the defendant shows good cause by clear and convincing evidence.
(§ 1018; People v. Patterson (2017) 2 Cal.5th 885, 894; People v. Breslin (2012)
205 Cal.App.4th 1409, 1416 (Breslin).) To establish good cause, the
defendant must show he was “operating under mistake, ignorance, or any
other factor overcoming the exercise of his or her free judgment, including
inadvertence, fraud, or duress.” (Breslin, at p. 1416.) Section 1018 should be
liberally construed (Patterson, at p. 894), but a defendant cannot withdraw a
plea because he changed his mind (People v. Nance (1991) 1 Cal.App.4th
1453, 1456 (Nance)).
“A decision to deny a motion to withdraw a guilty plea ‘ “rests in the
sound discretion of the trial court” ’ and is final unless the defendant can
5 The court also opted not to impose fees, and it issued a protective order.
11
show a clear abuse of that discretion. [Citation.] Moreover, 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
(Fairbank); Breslin, supra, 205 Cal.App.4th at p. 1416.) “[T]he fact that a
hearing court’s ruling on a section 1018 motion is reviewed by us under the
‘abuse of discretion’ standard appropriately results in our paying
considerable deference to the hearing court’s factual findings: ‘ “All questions
of the weight and sufficiency of the evidence are addressed, in the first
instance, to the trier of fact, in this case, the trial judge.” ’ ” (Nance, supra,
1 Cal.App.4th at p. 1460, fn. 4.)
2. Senator has not met his burden.
Senator paints a picture of physical and mental exhaustion at the end
of the first day in court clouding his ability to voluntarily enter a no contest
plea, but the court did not find Senator to be credible. The court’s finding
was supported by substantial evidence. (Fairbank, supra, 16 Cal.4th at p.
1254.) Specifically, Senator repeatedly gave nonresponsive answers despite
the court’s admonishments so that he could outline alleged past
mistreatment while in Orange County’s custody rather than focus on the
reasons for his alleged duress at the time of the plea. The court noted that
his allegation that a deputy pointed to him and announced he was the
Garden Grove stabber was uncorroborated and lacked any supporting
evidence, like a grievance form. And although Groharing testified that he
saw glass found in Senator’s food bag, there was no evidence regarding how
the glass got there. Additionally, that incident was not significant enough to
him that he requested a plea during any of the court dates that immediately
followed it.
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Further, Senator’s behavior called into question his sincerity and
believability: many responses sounded rehearsed; he gave long narratives
that were not focused on his alleged distress; and his affect was odd because
he laughed at inappropriate times. And some of his responses seemed
contradictory or inaccurate. For example, he explained that his housing
placement had been disrupted for a few days during which he did not receive
proper medication, but despite the disruption in his schedule and the
movement, he had time to start to “heal up.” Additionally, he told the court
he had not received any food on August 12 and was initially evasive when
challenged, saying he sometimes got lunch and sometimes did not. When the
court pressed him, he admitted he received a peanut butter and jelly
sandwich over the lunch recess that day. Thus, there was reason for the
court to doubt Senator’s claims.
Although the court acknowledged that duress could be caused by pain
and exhaustion, Senator did not provide any evidence beyond his testimony
to prove his medical condition or how it was exacerbated by traveling
between Orange County and Los Angeles using standard procedures, and he
admitted someone from medical had cleared him for trial.
Further, the court observed him during the plea and stated that his
testimony regarding duress was completely at odds with its observations of
him during the plea. Senator understood his rights at the time of his plea.
Finally, the court noted that it was difficult to believe, given its colloquy with
him before the plea and the defense counsel’s lengthy conversation with him,
that his reasoning for withdrawal was credible.
Even taking into consideration the evidence supplied by Senator to
explain his change of heart, we cannot conclude the court abused its
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discretion by concluding Senator failed to provide clear and convincing
evidence that he suffered from duress at the time he entered his plea.
B. Section 1385, Prior Strike Convictions
Senator contends the court abused its discretion by denying his request
to strike a prior strike conviction due to remoteness in time and because the
court failed to give adequate weight to his mental health problems. He also
contends that the factor in aggravation relating to violent conduct was
inapplicable because his crime did not involve actual violence and the conduct
for which he was convicted shows a de-escalation from previous threats.
Trial courts have discretion to dismiss “strike” prior convictions in
limited cases (Romero, supra, 13 Cal.4th at p. 530), when the dismissal is “in
furtherance of justice” (§ 1385; People v. Thimmes (2006) 138 Cal.App.4th
1207, 1213). A trial court’s failure to strike a prior conviction allegation is
subject to review for abuse of discretion. (People v. Carmony (2004) 33
Cal.4th 367, 371, 374; People v. Gillispie (1997) 60 Cal.App.4th 429, 434-435
(Gillispie).) The court must consider both the defendant’s constitutional
rights and the interests of society. (Romero, at p. 530.) “Where the record
demonstrates that the trial court balanced the relevant facts and reached an
impartial decision in conformity with the spirit of the law, [the reviewing
court] shall affirm the trial court’s ruling, even if [it] might have ruled
differently in the first instance.” (People v. Myers (1999) 69 Cal.App.4th 305,
310.) A court abuses its discretion when it exceeds the bounds of reason.
(People v. Williams (1998) 17 Cal.4th 148, 162.)
Here, the court considered the arguments Senator raises on appeal. It
properly considered the nature and circumstances of the present offenses, the
nature of the convictions, and the particulars of Senator’s background and
character. It addressed the interests of society, noting that the threats were
14
made against five different judges, including one presiding over his appeal,
and their families. It found the threats to be aggravated because of who was
threatened and also because he claimed responsibility for the previous death
of a judge. The court believed Senator was a threat to society and could not
be relied upon to follow through with mental health treatment.
The length of time between the previous convictions in 1997 and 2007
and the present one did not weigh in Senator’s favor here because the court
concluded that Senator harbored grudges for long periods and lashed out
when he had the opportunity. And while Senator contends the court did not
give proper weight to his mental health issues, he does not explain how this
abused the court’s discretion. The court explained that it could not take into
account any formal psychiatric diagnosis because the only information before
it was at least 22 years old. Although the court recognized that Senator
suffered from some kind of mental issues, it also commented that Senator
had failed to take advantage of opportunities to rehabilitate after committing
similar offenses in the past, and he had been unsuccessful on probation and
parole.
The fact that Senator’s crime did not involve actual violence did not
restrict the court’s application of California Rules of Court, rule 4.421 as an
aggravating factor here. The court reasonably concluded that Senator’s
present offense was not a de-escalation because Senator’s statements claimed
responsibility for previously causing the death of judicial officers. This at
least implied his actions could likewise directly lead to death in the present
case.
Despite its concerns and its finding that there were significant factors
in aggravation, the court exercised its discretion to grant the motion as to
counts 3, 4, and 5. The trial court is not required to offer its reasons for
15
declining to exercise discretion under section 1385 (Gillispie, supra, 60
Cal.App.4th at p. 433), but the explanation the court offered on the record
here demonstrates the court’s reasonableness in declining to strike the prior.
(See id. at p. 434 [“ ‘[A]ll that is required on the appellate record is a showing
that the court was aware of its discretion to select an alternative
disposition’ ”].)
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
DO, J.
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