People v. Pennello CA4/2 ( 2015 )

Filed 10/6/15 P. v. Pennello CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E061537
v. (Super.Ct.No. FVI1102598)
DANILO SERGIO PENNELLO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. William Jefferson
Powell IV, Judge. Affirmed as modified.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C.
Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Danilo Pennello is serving 25 years to life after he pled no contest to
attempted second degree robbery and admitted to having six prior strike convictions.
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Defendant challenges the trial court’s ruling denying his motion to withdraw his plea and
its decision to impose a $750 attorney fee. As discussed below, we reverse the attorney
fee order but affirm the court’s denial of defendant’s motion to withdraw his plea.
FACTS AND PROCEDURE
On the morning of November 10, 2011, defendant made a purchase and then
loitered around the inside and outside of a bakery shop. The employees believed he
might be on drugs. The owner and employees became concerned, so the owner
approached defendant and asked if she could help him. Defendant left the shop, but
eventually returned. Defendant walked up to the cash register with his right hand in his
pocket, as if he had a gun. He told the owner in a loud and aggressive voice, “Open your
fucking drawer. I want your money.” The owner told him, “No.” Defendant then said,
“You’re a bitch. Will you fucking open the drawer and give me your money?”
Defendant left the store when the owner told one of the workers to call police.
At the police station, defendant told the interviewing deputy that he was sorry for
the incident and, after prompting, wrote an apology letter to the store owner.
On November 30, 2011, the People filed an information alleging defendant
committed attempted second degree robbery (Pen. Code, §§ 664, 211).1 The People also
alleged defendant had six prior strike convictions (§§ 667, subd. (b) & 1170.12, subd.
(a)), eight serious felony convictions (§ 667, subd. (a)(1)) and two prior prison term
convictions (§ 667.5, subd. (b)).
1 All section references are to the Penal Code unless otherwise indicated.
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On May 10, 2012, the trial court ordered defendant to be evaluated under section
1026 to determine whether he was legally sane when he allegedly committed the
attempted robbery. The two psychological assessments, filed on June 27 and June 28,
2012, indicate defendant was legally sane at the time of the offense, but suffered from
methamphetamine intoxication and “non-psychotic psychiatric conditions.” Defendant
was described as being of “borderline to dull normal intelligence” by one evaluator and
“borderline range (the range between low average and mild intellectual disability/mental
retardation)” by the other. The evaluators reported that defendant appeared to suffer from
poor impulse control, hyperactivity and Tourette Syndrome, and self-reported a history of
anxiety, depression, and paranoia.
On March 19, 2014, defendant pled no contest to the attempted robbery and
admitted the six strike convictions. When accepting the plea, the trial court said to
defendant regarding sentencing, “It is my understanding that you want to come back in
about 90 days or so,” to which defendant himself replied, “Yes, your Honor.”
On June 5, 2014, defendant moved to withdraw his plea, based on sexual
harassment and assaults in jail by a named sheriff’s deputy. The People filed their
opposition on June 26, 2014.
On June 27, 2014, the trial court held a hearing on the motion and then denied it.
On that same date, the court sentenced defendant to 25 years to life pursuant to the plea
agreement.
This appeal followed.
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DISCUSSION
1. Motion to Withdraw the Plea
Defendant argues the trial court abused its discretion when it denied his motion to
withdraw his no contest plea because defendant established by his declaration that this
plea was not the product of “free and clear judgment.” Specifically, defendant argues he
pled no contest under duress to escape sexual harassment and assaults by Deputy Brock
Teyechea while in local custody pending the resolution of his criminal case. Defendant
also argues he pled guilty to escape potential assaults by other jail inmates based on the
deputy’s purposeful comments that implied defendant was a homosexual.
In his declaration attached to the motion, defendant states he was sexually
harassed and assaulted by the deputy in February of 2014. Defendant also states that the
deputy questioned him about his sexuality in front of other inmates, which caused him to
fear he would be subject to additional harassment and assaults by inmates at the jail.
Defendant states that, when he entered his plea on March 19, 2014, he did not answer
“Yes” when asked if he was forced or threatened to get him to plead no contest because
one or more sheriff’s deputies was present in the courtroom and he feared retaliation at
the jail. Defendant states that Deputy Teyechea had since been fired and that defendant
was suing the deputy and others for the assault and harassment. Defendant asserts that he
only pled guilty so he could escape the assault and harassment at the jail by being
transferred to state prison. Defendant attaches newspaper articles documenting that
several named inmates, not including defendant, were suing the sheriff’s department for
the abusive actions of Deputy Teyechea and other deputies between January 1, 2013, and
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the end of March 2014. One of the articles notes that Teyechea no longer works for the
sheriff’s department.
In its response filed June 26, 2014, the People argued that defendant finally pled
no contest and accepted the People’s offer of 25 years to life after the jury had been
impaneled, which is also the day after defendant viewed a video of the attempted robbery
and heard the trial court rule that the video was admissible.
After hearing argument from the parties on the motion, the trial court noted that
defendant had been “adamant” that he wanted a trial, going so far as to have his case
moved from Victorville to San Bernardino to get an open courtroom—until defendant
saw the video of the crime, which the trial court described as being “in color,” “very
clear,” and having “even very clear audio.” The court also noted that defendant had told
the probation officer that he wanted to change his plea to get a lower sentence and never
mentioned any duress or coercion as a reason for wanting to withdraw his plea.
“On application of the defendant at any time before judgment . . . the court
may, . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of
not guilty substituted.” (§ 1018.) However, a plea may not be set aside simply because a
defendant has changed his mind. (In re Vargas (2000) 83 Cal. App. 4th 1125, 1143.)
Rather, in bringing a motion to withdraw a guilty plea, the defendant must establish by
clear and convincing evidence that mistake, ignorance, fraud, duress, or some other factor
overcame his exercise of free judgment when making the plea. (People v. Cruz (1974) 12
Cal. 3d 562, 566.) The grant or denial of such a motion is within the sound discretion of
the trial court, and we uphold the trial court’s exercise of that discretion unless an abuse
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of discretion is clearly demonstrated. (People v. Ravaux (2006) 142 Cal. App. 4th 914,
917.) We accept all factual findings of the trial court that are supported by substantial
evidence. (People v. Fairbank (1997) 16 Cal. 4th 1223, 1254.)
Here, defendant has not established that the court abused its discretion when it
found he had not proven by clear and convincing evidence that he pled no contest only
under the duress of sexual and physical abuse by Deputy Teyechea and fear of potential
assaults by other jail inmates. First, the trial court was not required to believe
defendant’s declaration, and obviously did not. A trial court is not bound to give full
credence to the statements of a defendant in support of a motion to withdraw a plea, even
if uncontradicted, because the defendant has an obvious interest in the outcome of the
proceeding. (People v. Hunt (1985) 174 Cal. App. 3d 95, 103.)
Second, the circumstances surrounding defendant’s plea support the trial court’s
conclusion that he was motivated by the desire to avoid a near-certain conviction and a
much longer sentence because of his numerous prior convictions. The trial court acted
reasonably when it concluded that defendant was motivated to change his plea by the
admission of the video of the crime and the seeming certainty of a conviction and even
longer sentence. Further, at the hearing on his motion to withdraw the plea, defense
counsel argued that defendant “entered that guilty plea to get out of county jail and
immediately go to state prison.” However, as the People point out, at the change of plea
hearing on March 19, 2104, defendant himself asked that sentencing be delayed until 90
days later, which is inconsistent with defendant’s declaration that he was desperate to
transfer from jail to state prison to avoid Deputy Teyechea. For these reasons, we cannot
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say that the trial court abused its discretion when it denied defendant’s motion to
withdraw his plea.
2. Attorney Fees to be Stricken
At sentencing, the trial court followed the recommendation in the probation report
and imposed an appointed counsel fee of $750. Defense counsel asked for this fee to be
waived because, “With the 25 to life sentence, I don’t think he has the ability to pay.”
The trial court responded, “Well, that is kind of inconsistent with the concept that he was
actually abused and has a multimillion dollar civil suit pending.” The trial court then
reiterated that it was imposing the fee.
Defendant argues the attorney fee order must be reversed because the trial court
abused its discretion when it found he had the ability to pay based on the civil lawsuit.
The People concede and we agree.
Section 987.8, subdivision (g)(2)(B) sets forth the assumption that “[u]nless the
court finds unusual circumstances, a defendant sentenced to state prison shall be
determined not to have a reasonably discernible future financial ability to reimburse the
costs of his or her defense.” (People v. Prescott (2013) 213 Cal. App. 4th 1473, 1476.)
The record reveals no unusual circumstances to rebut this presumption that defendant will
be unable to pay the fee because he will be in prison for the next 25 years. The probation
report shows defendant was last employed in 2005, lived with his parents, and had no
assets. Two pieces of evidence did support the existence of a civil lawsuit by defendant
against the sheriff’s department and others—both his declaration in support of the motion
to withdraw his plea, and a declaration from his defense counsel stating he had spoken
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with a civil attorney who confirmed that he represented defendant in a civil lawsuit
resulting from the physical assaults by Deputy Teyechea while defendant was in custody.
However, any “multimillion dollar” payout from the litigation, upon which the trial court
based its imposition of the appointed counsel fee, is merely speculative. The fee is herby
stricken.
DISPOSITION
The judgment is modified to strike the $750 appointed counsel fee but is affirmed
in all other respects.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
CODRINGTON
J.
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