People v. Apostolas CA4.1

Filed 12/19/13 P. v. Apostolas CA4.1
Opinion following order vacating prior opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063476
Plaintiff and Respondent,
v. (Super. Ct. No. SCD241724)
STEVEN J. APOSTOLAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Dwayne
Moring, Judge. Affirmed.
Patrick Morgan Ford for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Sean M.
Rodriquez and Jennifer Truong, Deputy Attorneys General, for Plaintiff and Respondent.
Steven Apostolas was charged in an amended complaint with numerous counts
and appended enhancements, and with 10 prior serious felony convictions and 10 prior
strike convictions. He faced life sentences if convicted. Instead, he entered into a plea
agreement to plead guilty to numerous counts and appended enhancements, and to admit
to a prior serious felony conviction and prior strike conviction in return for a stipulated
determinate prison term of 30 years. On appeal, he asserts the trial court abused its
discretion when it denied his motion to withdraw his guilty plea, because his plea was not
knowing and voluntary and he was denied effective assistance of counsel.
FACTUAL AND PROCEDURAL BACKGORUND
A. Facts
The facts, drawn from the probation report, are that Apostolas was previously
convicted of 10 counts of lewd acts on the children of his then-girlfriend. On June 22,
2012, Apostolas drove a car to a local park, where he was seen in the company of the
victim, an eight-year-old homeless male. Police were concerned when the car Apostolas
was driving was shown to be owned by a registered sex offender, and they investigated
but could not find Apostolas or the victim. They returned the following day, and located
and interviewed the victim. When they asked the victim if Apostolas had made him
uncomfortable, he said, "Yea, he told me people come here to have sex." When police
asked if Apostolas had touched his private parts, the victim looked away, crossed his
legs, crossed his hands over his stomach, and said, "No" in a low voice. However, the
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victim told police Apostolas had coerced him into removing his clothes and going into a
small body of water with him.
Two days later, police took the victim to the Polinsky Center. During a June 27
interview by a social worker at the center, the victim stated Apostolas had touched the
victim's private parts under his clothing on more than one occasion.
B. The Guilty Plea
The amended complaint charged Apostolas with three counts of lewd and
lascivious touching and one count of attempted sexual abuse with restraint, and also
alleged numerous enhancements and prior serious felony and prior strike convictions. He
faced life sentences, with a minimum 30-year term, on each count for which he was
convicted. In exchange for a stipulated determinate sentence of 30 years, he pleaded
guilty and admitted the underlying factual allegations, the enhancements, and the prior
serious felony convictions and prior strike convictions. He acknowledged his guilty plea
was entered freely and voluntarily, his judgment was not impaired, and he understood the
guilty plea surrendered his rights to confront and cross-examine witnesses against him
and to present evidence. At the August 2, 2012, court hearing at which the plea was
accepted, he verbally reiterated these admissions; the court found Apostolas acted
knowingly and voluntarily, and that there was a sufficient factual basis for the plea.
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C. The Motion to Withdraw the Plea
Five weeks later, Apostolas filed a Marsden1 motion alleging his counsel
(Mr. Aragon) did not investigate the case or communicate with Apostolas, coerced him
into agreeing to plead guilty without giving him the opportunity to consult with others or
to review the discovery, and allowed him to plead guilty even though he was in "no
mental state" to do so. The following week, Apostolas filed an in propria persona motion
seeking to withdraw his guilty plea that reiterated these allegations. On October 31,
2012, new counsel for Apostolas filed a more detailed motion seeking to withdraw his
plea, alleging Aragon had refused to provide an investigator for the case, and alleged
Aragon told Apostolas his case was a "lost cause" and to stop wasting the court's and
Aragon's time. Apostolas claimed he did not understand the consequences of his plea
agreement, had only been given 15 minutes to review the charges in the amended
complaint and, had he known the terms to which he ostensibly agreed, he would not have
pled guilty.
Aragon filed a declaration stating he had extensively discussed the evidence with
Apostolas, along with possible defenses and his potential sentencing exposure. At no
time did Aragon say it was a lost cause or to stop wasting anyone's time, and he did not
decline a request by Apostolas for an investigator. Aragon averred he had met with
Apostolas in advance of the plea hearing to discuss the new charges with him, reviewed
the change of plea form with him at the plea hearing and described the consequences of
1 People v. Marsden (1970) 2 Cal.3d 118.
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pleading guilty, and that Apostolas understood the impact of his plea and wanted to plead
guilty.
Apostolas called no witnesses at the hearing on his motion to withdraw his plea.
The People called Aragon, who testified he reviewed the discovery, including twice
watching a video of one of the interviews of the victim, and also went to the park at
which the molestations occurred. He met with Apostolas and thoroughly reviewed the
materials with him, and offered to give him all of the materials but Apostolas declined.
Aragon discussed the inconsistencies in the victim's statements with Apostolas and asked
for his opinion as to the minor's credibility, and also advised him of Aragon's concerns
that Apostolas's prior misconduct with children would be potential Evidence Code
section 1101, subdivision (b), evidence at trial. Aragon was "perfectly willing" to take
the case to trial, and considered consulting with an expert about suggestive questioning to
undermine the minor's testimony, but Apostolas stated the victim was credible and he
wanted to avoid a longer sentence, which obviated the need to consult with an expert.
Aragon negotiated the plea agreement and discussed whether to take the plea or to go to
trial and attack the victim's credibility, and Apostolas instructed him to accept the offer.
Aragon also met with Apostolas one or two days before the plea agreement hearing to
discuss the new charges, and Apostolas affirmed his desire to take the plea deal. On the
day of the plea hearing, he appeared to understand what was going on, and Aragon again
reviewed the plea agreement with him. Apostolas, after having an additional "couple of
hours" to consider it, still wanted to accept the agreement.
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The court found Aragon's testimony credible, and that Apostolas's declaration
containing contrary allegations was not. The court found there was no evidence Aragon
coerced him into accepting the agreement, and found Apostolas did understand the nature
of the plea and its consequences. The court also found Aragon "did a thorough job" in
investigating the case, in explaining to Apostolas the "pros and cons" of the case, and in
negotiating the plea agreement.
ANALYSIS
A. Legal Standards
Penal Code section 1018 provides, in part: "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. . . . This section shall be
liberally construed to effect these objects and to promote justice." In general, "[m]istake,
ignorance or any other factor overcoming the exercise of free judgment is good cause for
withdrawal of a guilty plea." (People v. Cruz (1974) 12 Cal.3d 562, 566.) However, "[a]
plea may not be withdrawn simply because the defendant has changed his mind."
(People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) The defendant has the burden to
show, by clear and convincing evidence, there is good cause for withdrawal of his or her
guilty plea. (Id. at p. 1457.)
The decision to grant or deny a motion to withdraw a guilty plea is left to the
sound discretion of the trial court. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254;
People v. Nance, supra, 1 Cal.App.4th at p. 1457.) "A denial of the motion will not be
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disturbed on appeal absent a showing the court has abused its discretion." (Nance, at
p. 1456; see also Fairbank, at p. 1254 ["A decision to deny a motion to withdraw a guilty
plea . . . is final unless the defendant can show a clear abuse of [the trial court's]
discretion."].) "Moreover, a reviewing court must adopt the trial court's factual findings
if substantial evidence supports them." (Fairbank, at p. 1254.) Our role in determining
whether Apostolas satisfied his burden of producing clear and convincing evidence in the
trial court in support of his motion to withdraw a guilty plea is a limited one, because
" '[a]ll 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. We cannot reverse his order if
there is substantial evidence or a reasonable inference to be drawn from it which supports
the order. Where two conflicting inferences may be drawn from the evidence it is our
duty to adopt the one supporting the challenged order.' " (People v. Harvey (1984) 151
Cal.App.3d 660, 667.)
B. Analysis
Apostolas contended his plea was not a voluntary plea because Aragon coerced
him into pleading guilty by telling him his case was a "lost cause" and to stop wasting the
court's and Aragon's time, and by refusing to provide an investigator. Apostolas also
contended his plea was not a knowing plea because Aragon did not adequately explain to
him the potential exposures or the potential avenues of defense for the case. The trial
court rejected these claims because it credited Aragon's testimony that he did not coerce
Apostolas into accepting the agreement, that he "did a thorough job" in investigating the
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case and explained to Apostolas the "pros and cons" of the case, and that he did discuss
the charges with Apostolas, who appeared to understand the nature of the plea and its
consequences. Because there was substantial evidence supporting these findings, the trial
court did not abuse its discretion in concluding Apostolas's plea was entered knowingly
and voluntarily. (People v. Hunt (1985) 174 Cal.App.3d 95, 104 (Hunt).)
Apostolas's alternative claim is that he was denied effective assistance of counsel
because Aragon did not hire an investigator or otherwise fully investigate the case, but
instead merely reviewed the materials turned over by the prosecution. A defendant who
has been denied the effective assistance of counsel in entering a plea of guilty is entitled
to reversal and an opportunity to withdraw his plea if he or she so wishes, because a valid
guilty plea must be based upon a defendant's full awareness of the relevant circumstances
and the likely consequences of his or her action. (People v. McCary (1985) 166
Cal.App.3d 1, 7-9.) We apply the two-step analysis to determine adequacy of counsel.
First, Apostolas must show trial counsel did not act in a manner expected of reasonably
competent attorneys acting as diligent advocates. Second, he must establish that
counsel's acts or omissions resulted in withdrawal of a potentially meritorious defense.
(Hunt, supra, 174 Cal.App.3d at pp. 104-105.)
In the context of a claim that a guilty plea should be vacated based on ineffective
assistance of counsel, when a defendant expresses a desire to plead guilty, counsel acts in
a manner expected of reasonably competent attorneys acting as diligent advocates when
he or she has investigated carefully all factual and legal defenses available to the
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defendant and advised the defendant of all options. (Hunt, supra, 174 Cal.App.3d at
p. 105.) Here, the court found Aragon "did a thorough job" in investigating the case, in
evaluating Apostolas's options, and in explaining to him the "pros and cons" of the case,
and Aragon's testimony provides substantial evidentiary support for that finding. The
trial court's rejection of Apostolas's claim of ineffective assistance of counsel as the
predicate to his motion to withdraw his plea was not an abuse of discretion because there
was substantial evidentiary support for the conclusion he was not denied effective
assistance of counsel.
DISPOSITION
The judgment is affirmed.
McDONALD, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
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