People v. Almazo CA4/1 ( 2021 )

Filed 1/15/21 P. v. Almazo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077565
Plaintiff and Respondent,
v. (Super. Ct. No. SCN288698)
SANTIAGO G. ALMAZO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Harry M. Elias, Judge. Affirmed.
Suzanne Antley, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael
Pulos and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and
Respondent.
On March 2, 2011, the San Diego District Attorney filed a complaint
charging defendant Santiago G. Almazo with six counts of lewd acts on a
child under the age of 14 (Pen. Code,1 § 288, subd. (a); counts 1-6);
penetration of a person under the age of 16 with a foreign object (§ 289, subd.
(i); counts 7-8 and 10-11); and sodomy of a person under the age of 16. (§ 286,
subd. (b)(2); count 9.)
On July 10, 2019, pursuant to a negotiated disposition, defendant
entered a plea of guilty to two counts of lewd acts upon a child. In return, the
court dismissed the remaining charges. The court denied probation and
sentenced defendant to eight years in state prison. On October 11, 2019,
defendant hired private counsel and moved to withdraw his guilty plea. After
an evidentiary hearing, the trial court denied his motion. Defendant
obtained a certificate of probable cause and appealed. Affirmed.
STATEMENT OF FACTS
N. was about 11 years old when she moved with her mother and two
sisters from Mexico to the United States. Once in this country, N.’s mother
married defendant, her stepfather. Defendant’s 19-year-old brother,
Raymundo, moved in with the family.
When N. was 15 years old, she told her mother defendant was sexually
abusing her. N.’s mother confronted defendant about the abuse, which he
denied. N.’s mother then directed N. to report the abuse to her middle school
counselor. The next day, N. told her counselor about the abuse and a deputy
was called to interview N. During the interview, N. reported defendant over
the previous three years had raped her numerous times.
Specifically, N. told the deputy that while her mother was at work,
defendant would send her younger sisters to their aunt’s home and defendant
would then fondle her and have sexual intercourse with her. She estimated
1 All further statutory references are to the Penal Code unless otherwise
noted.
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this had occurred more than 50 times, beginning when she was 12 years old.
N. disclosed the last incident of sexual abuse had occurred about three weeks
earlier, when defendant entered her bedroom, grabbed her breasts,
threatened to hit her, then took off his clothes and tried to force N. into
having sexual intercourse. N. admitted during the interview that she was
sexually active with Raymundo, defendant’s younger brother. After the
interview, Child Protective Services removed N. and her siblings from the
home.
On February 8, 2010, N. met with a forensic interviewer. During the
video-recorded interview, N. initially denied the sexual abuse by defendant.
However, as the interview continued, N. told the interviewer defendant had
started touching her sexually shortly after she arrived in the United States.
At the time, defendant was 33 years old and she was 12 years of age. She
reported that defendant would put his penis in her vagina, and the incidents
included ejaculation and oral copulation. N. also told the interviewer about
her consensual sexual relationship with defendant’s brother.
On the day of the forensic interview, N. took a pregnancy test that
came back positive. In August 2010, N. gave birth to a daughter. A DNA test
revealed the child was Raymundo’s.
DISCUSSION
Defendant argues the trial court erred in denying his motion to
withdraw his guilty plea. Specifically, he argues his plea was not knowing or
intelligent because before entering his plea, he did not have the opportunity
to watch the forensic video in which N. initially recanted her testimony
regarding the sexual abuse. He further argues this evidence would have
created a doubt about his guilt if it had been presented at trial. Defendant
also argues that at the time of his plea, he was unaware N. had a consensual
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sexual relationship with his brother and there was a resulting pregnancy.
We conclude the trial court did not abuse its discretion in denying his motion.
A. Additional Background
At the evidentiary hearing held in response to defendant’s motion,
defendant confirmed that prior to entering his guilty plea, the court asked if
he had sufficient time to speak with defense counsel and review the
allegations brought against him. He acknowledged on cross-examination
that, with the assistance of an interpreter, he reviewed the change of plea
form with his counsel and initialed and signed it. He also stated he had the
opportunity to ask questions about the plea, but did not ask anything of the
court.
In addition, defendant’s former public defender testified at the hearing
that on April 24, 2019, she met with the defendant and read through the
police reports and the statements N. made to the police, contradicting
defendant’s testimony at the hearing. She confirmed this meeting took place
with the assistance of a court-certified Spanish interpreter. Counsel also
testified that she obtained the video of N.’s forensic interview, reviewed it
and took six or seven paragraphs of notes based on its contents. She stated
that the majority of the video was in English and any portions in Spanish
were later repeated in English. With the assistance of an interpreter she
read her notes to defendant, and he then did not appear to have any concerns
or questions about the video or its contents.
Counsel further testified she advised defendant that the plea was in his
best interests, but placed no undue pressure on him to enter a guilty plea.
Indeed, counsel stated she explained that if they proceeded to trial, they had
arguments they could make based on discovery and lack of admissions; and
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that it was defendant’s choice whether to accept the plea offer or proceed to
trial.
Following the presentation of the evidence on defendant’s motion, the
court found defense counsel more credible than defendant regarding the
information that had been available to defendant before he pleaded guilty.
Specifically, the court was impressed by the fact defense counsel had taken
notes of N.’s forensic video. In addition, the court did not find the failure to
show the video to defendant was sufficient to allow withdrawal of the plea
because defense counsel described to defendant what she saw and heard on
the video. The court thus denied the motion, finding defendant’s plea was
voluntary and uncoerced. We find no error.
B. Guiding Principles and Analysis
Section 1018 authorizes a trial court to allow a defendant to withdraw a
guilty plea for “good cause.” To establish “good cause,” a defendant must
show by clear and convincing evidence that he or she was operating under a
mistake, ignorance, or any other factor overcoming his or her free judgment.
(People v. Breslin (2012) 205 Cal.App.4th 1409, 1416 (Breslin).)
Factors that can overcome the exercise of free judgment include
inadvertence, fraud, duress or the prosecution’s suppression of evidence
favorable to the defendant. (People v. Huricks (1995) 32 Cal.App.4th 1201,
1208.) A plea, however, cannot be changed merely because a defendant has
changed his or her mind. (Ibid.) “ ‘The burden is on the defendant to present
clear and convincing evidence the ends of justice would be subserved by
permitting a change of plea to not guilty. [Citation.]’ ” (People v. Weaver
(2004) 118 Cal.App.4th 131, 146 (Weaver).)
The decision to deny a motion to withdraw a plea rests in the sound
discretion of the trial court; and, as a court of review, we must adopt the trial
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court’s factual findings if they are supported by substantial evidence.
(Breslin, supra, 205 Cal.App.4th at p. 1416.) In examining the trial court’s
ruling, we must keep in mind that a guilty plea resulting from a plea bargain
should not be set aside lightly. (Weaver, supra, 118 Cal.App.4th at p. 146.)
Here, the court properly exercised its discretion when it found
defendant was not prejudiced, thereby rendering his plea involuntary, merely
because he himself did not watch the video before he pleaded guilty. As
noted, although defendant did not watch N.’s video-taped forensic interview,
defense counsel did, took several paragraphs of notes, and then—with the
assistance of a Spanish interpreter—reviewed them with defendant. Counsel
was available to respond to any questions or concerns defendant might have
had about N.’s interview, but there is no evidence he had any prior to
pleading guilty. After weighing the credibility of defendant and defense
counsel, the trial court found defense counsel credible, as noted, and thus
found defendant was aware of the video and its contents before his plea.
Defendant nonetheless argues that had he seen the video before the
plea he might have “picked up” on crucial elements of the recantation.
Defendant’s argument is based on speculation, and, in any event, does not
support a finding his plea was involuntary or otherwise coerced, particularly
in light of the court’s finding that defense counsel reviewed the contents of
the video with him before his plea. Moreover, there is no allegation or
evidence that the prosecutor purposely withheld the video.
In summary, it is undisputed that defendant and defense counsel were
well aware of N.’s forensic video; that defense counsel watched and listened
to the video, and took considerable notes that she shared and discussed with
defendant prior to his guilty plea; and that defendant then seemed
unconcerned about the fact that he himself had not watched the video.
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Substantial evidence supports the finding defendant was not prejudiced by
his reliance on defense counsel regarding the contents of the video and its
implications, if any, to his case.
Defendant also argues his lack of knowledge of N.’s pregnancy and her
relationship with his brother Raymundo could have possibly undermined N.’s
credibility and provided him with a viable defense at trial. However, there is
no evidence, much less clear and convincing evidence (see Weaver, supra, 118
Cal.App.4th at p. 146), that his knowledge of such separately or together
overcame his free will in deciding to plead guilty.
Moreover, defense counsel’s review and discussion with defendant
regarding N.’s forensic interview, the police reports, and other discovery
support the inference that defendant was aware of the relationship between
N. and his younger brother before the plea hearing. This finding is further
supported by the fact that N. learned of her pregnancy on the day of her
forensic interview and gave birth months before the district attorney filed
criminal charges against defendant.
In any event, there is no evidence as to how defendant’s knowledge (or
lack thereof) of the relationship between N. and his brother, and N.’s
resulting pregnancy, rendered defendant’s guilty plea involuntary and
coerced; or otherwise would have created a reasonable doubt about his guilt,
inasmuch as it is less than certain that the “evidence” of N.’s relationship
with Raymundo would have been admissible at trial. (See Evid. Code, § 782,
subd. (a)(1) [requiring a defendant seeking to introduce evidence of the
witness’s prior sexual conduct to file a written motion accompanied by an
affidavit containing an offer of proof concerning the relevance of the proffered
evidence to attack the credibility of the victim]; see also People v. Mestas
(2013) 217 Cal.App.4th 1509, 1514.)
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Defendant’s reliance on People v. Randle (1982) 130 Cal.App.3d 286 is
misplaced. There, the reviewing court found an abuse of discretion by the
trial court where a motion for new trial was denied, inasmuch as newly
discovered evidence—20 declarations made by 17 individuals—did more than
impeach the complaining witness. No such showing is made here.
In light of the above, we conclude the trial court did not abuse its
discretion in denying defendant’s motion to withdraw his guilty plea.
DISPOSITION
The order is affirmed.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
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