People v. Kivett CA3

Filed 12/20/21 P. v. Kivett 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Siskiyou)
----
THE PEOPLE, C093274
Plaintiff and Respondent, (Super. Ct. Nos. SCCRCRF201911971,
SCCRCRF201917491,
v. SCCRCRF20195651,
SCCRCRRS20195161)
JOSEPH MICHAEL KIVETT,
Defendant and Appellant.
In a global resolution of four cases, defendant Joseph Michael Kivett pled guilty to
several charges and admitted a prior strike allegation in exchange for a stipulated
sentence of 12 years and 8 months, dismissal of one of the cases and the remaining
counts and enhancements in the other three cases, and the prosecution’s agreement not to
file charges against Stacy Phillips, defendant’s wife. As part of his plea, defendant pled
guilty to committing second degree robbery and false imprisonment against Anthony S.
and Rachelle G., and attempting to prevent or dissuade Rachelle by force or implied
threat of force or violence from reporting a crime as a victim or witness.
1
Pertinent to this appeal, defendant later filed a motion to withdraw his plea,
arguing his motion was supported by good cause under Brady v. Maryland (1963) 373
U.S. 83 [10 L.Ed.2d 215] and Penal Code1 section 1054.1, subdivision (e) because the
prosecution failed to provide him with impeachment evidence as to Rachelle and
Anthony before defendant entered his plea. The trial court denied the motion.
Defendant appeals the denial of his motion to withdraw his plea and asserts,
“[g]iven the fact the alleged victims and the prosecution’s central witnesses were recently
involved in criminal activity, the prosecution was both constitutionally and statutorily
required to disclose this information to [defendant] before he entered his plea.” Finding
no merit in defendant’s arguments, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The substantive facts underlying defendant’s convictions are irrelevant to the issue
raised on appeal and are therefore not recounted here. We recite only the background
pertinent to our consideration of the trial court’s denial of defendant’s motion to
withdraw his plea.
Defendant entered his plea on September 5, 2019. 2 On October 8, at the
sentencing hearing, defendant said he intended to file a motion to withdraw his plea. The
trial court responded it had concerns regarding the stipulated term of the plea because it
appeared to be “an unusually generous disposition.” Thus, the trial court invited
comment, explaining “it might expedite matters to get an opinion from the Court as to
whether or not the Court will even approve this resolution that might obviate the need for
a motion.”
1 All further section references are to the Penal Code unless otherwise specified.
2 All further date references are to 2019 unless otherwise specified.
2
The prosecutor explained he had spoken with the district attorney “who made the
offer” and her recollection was, among other things, “that there was quite extensive
discussion with counsel and [another judge]. And part of those conversations included
some significant issues and concerns about credibility of some of the witnesses, including
the victims. And their testimony is quite important to a number of charges.” Defense
counsel added, among other things, that the preliminary hearing transcript was supposed
to be the factual basis for the plea, but it appeared the police report was used instead. The
trial court acknowledged the parties’ comments and noted Anthony “is someone who
does have some significant criminal history, . . . that would pose some issues with regard
to credibility.” The trial court stated it would tentatively follow the recommended
sentence and scheduled a hearing on the motion to withdraw the plea.
Defendant filed his first motion to withdraw the plea on October 18, which was
denied following the hearing on February 6, 2020. That motion is not at issue in this
appeal; thus the specifics of that motion are not recounted here. Defendant filed his
second motion to withdraw the plea on March 19, 2020, when he was representing
himself in pro. per. In his declaration accompanying that motion, defendant stated the
grounds for his motion were “the prosecutor’s suppression of favorable evidence, and
ineffective representation of counsel.” (Underlining omitted.) As to the evidence
suppression allegation, defendant stated that, on the date he entered the plea, the
prosecution failed to disclose that Rachelle had pending charges from August 16 for
receiving stolen property, burglary, identity theft, and possession of a controlled
substance. This information, defendant declared, was impeachment evidence and, had he
known about Rachelle’s pending charges, he would not have entered his plea.
The prosecution opposed defendant’s motion. As to the suppression of evidence
claim, the prosecution noted defendant “refers to an incident that occurred on August 16,
2019,” “[t]he district attorney’s office did receive a police report for this incident,” and
“[t]he district attorney’s office filed a case against Anthony . . . and Rachelle . . . as co-
3
defendants for this incident on October 9, 2019.” The prosecution asserted both the
United States Supreme Court and the California Supreme Court have “ruled that the
government is not required ‘to disclose material impeachment prior to entering a plea
agreement with a criminal defendant.’ ” (Citing United States v. Ruiz (2002) 536 U.S.
622, 633 [153 L.Ed.2d 586, 597] and In re Miranda (2008) 43 Cal.4th 541, 582.) The
prosecution further argued “it is very unlikely that the pending unadjudicated case against
[Anthony and Rachelle] would have been admissible as impeachment evidence at trial.”
The trial court denied the motion as to defendant’s ineffective assistance of
counsel argument; defendant does not appeal the trial court’s decision on that ground.
The trial court considered defendant’s evidence suppression allegation in support of his
motion to withdraw the plea at a separate hearing. During that hearing, defendant was
represented by appointed counsel.
Defendant verbally asked the trial court to take judicial notice of three cases,
including the case filed against Rachelle and Anthony. The trial court granted the
request. Defendant further orally provided the trial court with the following pertinent
timeline: charges were filed against defendant and Phillips in March; in May,
defendant’s counsel communicated with the then-prosecutor about Anthony’s violation of
probation; after receiving Anthony’s probation violation petition and report, defense
counsel “didn’t feel like it would have any impact on [defendant’s] case” and she
conferred with defendant in that regard; on August 16 and 26, Anthony and Rachelle
“allegedly engaged in activities which are now the subject of a criminal Complaint that
has been filed”; defendant pled guilty on September 5; the complaint was filed against
Anthony and Rachelle on October 9. Defendant argued the charges against Anthony and
Rachelle “on their face allege crimes of moral turpitude” and “it is facially Brady.”
(Italics added.) Defendant asserted “that if he had known that [Anthony and Rachelle]
were facing charges of this nature, he would not have pled to these charges. He would
4
have proceeded to trial, which is what he was scheduled to do the day that he entered his
plea. His plea was entered at [a trial management conference].”
The prosecutor responded the prosecutor who had previously handled the case
went on vacation on October 11 and left the district attorney’s office a week later. As far
as the prosecutor was aware, “the last report [in the case against Anthony and Rachelle]
came in on September 19th, 2019.” The prosecutor explained: “And so the case was --
you know, we didn’t really have a case. We did actually have like an initial report, and
some reports actually came in on [Anthony’s] and [Rachelle’s] case. I researched it
during the week that the plea happened. But my review of our case files, it doesn’t
appear that anyone had even reviewed it. So I don’t think [the prior prosecutor] knew
about it. I didn’t know about it.
“I know he and I at times had discussed the -- [Anthony’s] case, as I knew he was
preparing for trial, [the prior prosecutor] was. And I was fully expected to come in and
just confirm the case when I showed up on September 5th. But [defense counsel] and I
discussed, and she said she thought that [the prior prosecutor’s] offer was too harsh.
“So I went back and I said I’ll review it. So I spent an hour or so and I reviewed
the case, and that’s when I made my offer. . . . [¶] But we didn’t even really know about
it -- we didn’t know about the case at the time of the plea. That being said, [the prior
prosecutor] and I were in discussions, you know, throughout his handling of [Anthony’s]
case and all of [his] prior convictions. I don’t think [Rachelle] had any. But there was a
disclosure made by [the prior prosecutor]. So I think he made every effort and our office
made every effort to discover, you know, crimes of moral turpitude of both defendants.
“But I guess overarching that is the issue of the Ruiz case, the [United States]
Supreme Court case, that we’re just not required to legally disclose impeachment
evidence prior to a plea.
5
“Once the defendant pleads, then it’s not -- I mean it’s not that it doesn’t matter,
but it’s not -- doesn’t make the plea involuntary. That’s what that case says.” (Italics
added.)
The trial court asked whether the prosecutor knew “what the ultimate resolution
was for [Anthony] and [Rachelle].” The prosecutor explained the case had not yet been
adjudicated and had been continued numerous times. The prosecutor noted Anthony’s
prior criminal history, which was disclosed to defendant prior to his plea. Defendant
explained “it’s never [Anthony] that was the focus. It was [Rachelle]. They were both
alleged as victims, both separate victims. [¶] And so the addition of moral turpitude
information about [Rachelle] was something that was never available. And so that is the
part that’s new and that is the subject of Brady.” (Italics added.) The trial court asked
the prosecution whether, prior to the plea, defendant was provided “any information
about [Rachelle] having impeachment prior convictions, including crimes of moral
turpitude?” The prosecutor responded the prior prosecutor was aware of Rachelle’s cases
before he left his employment and added: “But I would be also, I want to throw in, and I
don’t have anything to prove this, but I know that [Rachelle], even though she has some
failures to appear, her and [Anthony’s] case has been called in court numerous times on
Tuesdays and Wednesdays when [defense counsel] and other public defender attorneys
were here. So to us it was no big secret.”
The trial court granted defense counsel’s request for an in camera hearing to
explain why the alleged Brady violation “would have made things different” and “why
[defendant’s] plea was not knowing or voluntary.” Defense counsel thereafter argued:
“At least in the discovery I received, some of the incidents are all in August. Some of the
reports say closed in September. But at least one of the reports, the incident is in August
and it was closed in August.” She added: “So, I’m not suggesting that anybody saw this
and suppressed it, but I’m suggesting that there’s at least the appearance that they could
have.” The prosecutor responded “some new potential impeachment evidence came up at
6
the last -- you know, the last hour, if you will. And he didn’t get that. But the People
didn’t know about it.” The prosecutor argued Ruiz foreclosed defendant’s Brady
argument and, even if the impeachment evidence were available to defendant at trial, it
would be inadmissible. Defense counsel responded “the [United States Supreme Court]
did hold that the Constitution does not require the government to disclose material
impeachment prior to entering into a plea agreement with a criminal defendant. But
1054.7 and 1054.1, which is the California statutory embodiment of Brady, do require
that disclosure, and there’s no impeachment exception. [Section] 1054.1 also does not
have a Ruiz exception. [¶] So Ruiz is correct, but California has gone further, if that
makes sense.” (Italics added.)
The trial court said: “So it’s hard to imagine a situation that was more, shall we
say, impactful or possibly use the word ‘coercive’ in requiring him to make a decision at
the time of [the] trial management conference to either go to trial, in which he would face
accusers, one of whom appeared to be an unblemished witness in terms of criminal
offenses. So the credibility of that person was not something that he could, with the
information that he had, attack. So he had to make a decision at [the] trial management
conference. [¶] So there’s a real question about . . . voluntariness when he did not have
information that would certainly inform his decision as to his ability to go forward. So I
have a real concern there.” After further argument by counsel, the trial court responded it
would review the three cases discussed by counsel in greater detail and welcomed further
points and authorities “because there’s been some real disagreements on the fine points of
these cases.” The trial court set a follow-up hearing on the matter.
Prior to the follow-up hearing, the parties submitted supplemental briefs. 3
Attached to the prosecution’s supplemental brief was the declaration of Deputy District
3 Defendant cites the supplemental briefs but does not discuss or outline the content
of the prosecution’s brief, as discussed post.
7
Attorney Martha Aker. Aker declared “the electronic records of the district attorney’s
office” showed that “[o]n or about September 3, 2019, the Siskiyou County District
Attorney’s office received initial reports relating to two incidents involving theft crimes
with suspect Rachelle . . . with incident dates of August 16, 2019 and August 26, 2019.”
She further declared, in pertinent part: “The reports were initially reviewed by me on
September 10, 2019, but not filed until October 10, 2019 as further investigation was
necessary. Among other problems, our office did not receive anything beyond a draft
report from the Phoenix Police Department until September 13, 2019. We also did not
receive a report from [the California Department of Justice] for a ‘rushed’ fingerprint
analysis until September 19, 2019. There were other problems of proof that I am not
going to describe because the case against co-defendants Rachelle . . . and Anthony . . . is
still pending. I can say that we needed the [Department of Justice] fingerprint analysis
completed by [the Department of Justice] to decide whether to charge felony vehicle
burglary and vandalism charges against [Rachelle and Anthony] requested by the Yreka
Police Department. Because the fingerprint results showed ‘no match’ for either
[Rachelle] or [Anthony], we did not file such charges against them.” Aker also declared
defendant’s trial was scheduled to begin on September 16.
At the follow-up hearing, the trial court denied the motion. The judge explained:
“Well, I will note that there are several -- several different legal avenues, you might say,
with regard to this issue. The Brady issue requires to -- for the purpose of establishing a
violation requires that the evidence be favorable to the accused, that it be suppressed by
the State either willfully or inadvertently and finally that prejudice ensued.
“With regard to the -- in particular the issue of prejudice, I am persuaded by [the
prosecution’s] points and authorities that, first of all, the likelihood that the impeachment
evidence would even be admitted were the trial to go forward is low and the Court does
not believe that prejudice did ensue.
8
“So as to that issue, the Court finds that the standard has not been met by the
defense and for the other reasons stated in [the prosecution’s] points and authorities the
Court denies the motion.” (Italics added.)
Defendant appeals.
DISCUSSION
Section 1018 permits a defendant to move to withdraw a plea for good cause at
any time before judgment is entered. 4 A defendant has the burden of demonstrating good
cause by clear and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562, 566
[generally, defendant must show by clear and convincing evidence the plea was the result
of mistake, ignorance, or any other factor overcoming exercise of free judgment].) A
defendant must further show prejudice in that he, she, or they “would not have accepted
the plea bargain had it not been for the mistake.” (People v. Breslin (2012) 205
Cal.App.4th 1409, 1416.) A trial court’s decision to grant or deny a defendant’s motion
to withdraw a plea is reviewed for abuse of discretion. (People v. Mickens (1995) 38
Cal.App.4th 1557, 1561.) Discretion is abused when a court acts in an arbitrary,
capricious, or patently absurd manner, which results in a manifest miscarriage of
justice. (People v. Jordan (1986) 42 Cal.3d 308, 316.)
Defendant appeals the trial court’s denial of his motion to withdraw the plea based
on the evidence suppression allegation only. In that regard, defendant generally asserts
his motion was supported by good cause because the prosecution violated its duty to
disclose impeachment evidence pursuant to Brady and section 1054.1, subdivision (e).
4 Section 1018 provides in pertinent part, “[o]n 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.”
9
We note, however, defendant’s argument on appeal principally focuses on the alleged
Brady violation.
Brady concerns the prosecution’s constitutional duty under the federal due process
clause to disclose certain information to a defendant. (Brady v. Maryland, supra, 373
U.S. at p. 87 [10 L.Ed.2d at p. 218].) The United States Supreme Court held “the
prosecution must disclose to the defense any evidence that is ‘favorable to the accused’
and is ‘material’ on the issue of either guilt or punishment.” (City of Los Angeles v.
Superior Court (2002) 29 Cal.4th 1, 7.) In that regard, “[e]vidence is ‘favorable’ if it
either helps the defendant or hurts the prosecution, as by impeaching one of its
witnesses. [Citation.] [¶] Evidence is ‘material’ ‘only if there is a reasonable probability
that, had [it] been disclosed to the defense, the result . . . would have been different.’ ”
(In re Sassounian (1995) 9 Cal.4th 535, 544.)
The problem with defendant’s reliance on Brady is that the United States Supreme
Court has rejected defendant’s federal constitutional claim in the context of entering a
plea. (United States v. Ruiz, supra, 536 U.S. at pp. 628-633 [153 L.Ed.2d at pp. 594-
597].) In Ruiz, the United States Supreme Court considered a Ninth Circuit Court of
Appeals decision that “in effect held that a guilty plea is not ‘voluntary’ (and that the
defendant could not, by pleading guilty, waive his right to a fair trial) unless the
prosecutors first made the same disclosure of material impeachment information that the
prosecutors would have had to make had the defendant insisted upon a trial.” (Id. at p.
629 [153 L.Ed.2d at p. 595].) The court explained, “[w]e must decide whether the
Constitution requires that preguilty plea disclosure of impeachment information.” (Ibid.)
The United States Supreme Court “conclude[d] that it does not” and the federal
Constitution “does not require the Government to disclose material impeachment
10
evidence prior to entering a plea agreement with a criminal defendant.” (Id. at pp. 629,
633 [153 L.Ed.2d at pp. 595, 597]).5
Defendant failed to address Ruiz in his opening brief (despite addressing it during
oral argument in the trial court) and, in his reply brief, merely states our Supreme Court
has not addressed or evaluated “the impact of Ruiz on California law.” While that may
be true (a contention we need not consider), Ruiz dealt a death knell to defendant’s Brady
argument under the federal Constitution and the trial court thus did not abuse its
discretion in denying defendant’s motion for lack of good cause in that regard.
Turning to defendant’s alternative reliance on section 1054.1, subdivision (e),
which was briefly mentioned in his opening brief, we note “the reciprocal discovery
statute independently requires the prosecution to disclose to the defense, in advance of
trial or as soon as discovered, certain categories of evidence ‘in the possession of the
prosecuting attorney or [known by] the prosecuting attorney . . . to be in the possession of
the investigating agencies.’ (§ 1054.1.) Evidence subject to disclosure includes ‘[a]ll
relevant real evidence seized or obtained as a part of the investigation of the offenses
charged’ (id., subd. (c)) and ‘[a]ny exculpatory evidence’ (id., subd. (e)). Absent good
cause, such evidence must be disclosed at least 30 days before trial, or immediately if
5 To the extent the People assert In re Miranda stands for the broad proposition that
“prosecutors are not required to disclose impeachment evidence prior to entering a plea
agreement with a criminal defendant,” we disagree. (Citing In re Miranda, supra, 43
Cal.4th at p. 581.) In that case, our Supreme Court discussed Ruiz and explained the case
before it was distinguishable because the undisclosed evidence was not merely material
impeachment evidence but also evidence that “would have tended to exculpate petitioner
by showing that another person did the killing.” (In re Miranda, at p. 582.) The court
then stated it would not decide “the broad question whether or to what extent the
prosecution has a duty to disclose evidence favorable to a criminal defendant before the
defendant pleads guilty.” (Ibid.) In the accompanying footnote, the court explained,
“[t]he question whether prosecutors must disclose material exculpatory evidence before
entering into a plea bargain has been addressed in other states and in the federal courts.”
(Id. at p. 582, fn. 6.)
11
discovered or obtained within 30 days of trial. (§ 1054.7.)” (People v. Zambrano (2007)
41 Cal.4th 1082, 1133.) “If petitioner can show he has a reasonable basis for believing a
specific item of exculpatory evidence exists, he is entitled to receive that evidence [under
section 1054.1, subdivision (e)] without additionally having to show its materiality.”
(Barnett v. Superior Court (2010) 50 Cal.4th 890, 901.)
At present, it remains an open question whether the phrase “[a]ny exculpatory
evidence” in section 1054.1, subdivision (e) encompasses impeachment evidence. (See
Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 377-378.) Defendant makes no
argument in that regard. Indeed, the totality of defendant’s section 1054.1 argument in
his opening brief consists of: (1) an assertion that “[t]he criminal reciprocal discovery
statute, which obliges the parties to disclose certain facts, also helps to guide [the section
1018] inquiry” and “not only sets forth the People’s duty to disclose exculpatory
evidence, but it also implies certain factors to be considered in determining whether the
defendant has, in fact, been afforded the rights intended by the Legislature and
guaranteed by the federal Constitution” (italics added); (2) a heading, stating “[u]nder
federal law, as well as the California criminal reciprocal discovery statute, the
prosecution has a duty to disclose exculpatory evidence or evidence which is favorable to
the defense, including impeachment evidence” (italics omitted); (3) a paragraph under the
foregoing heading that generally sets forth the requirements of section 1054.1 and its
subdivision (e), and that a violation of section 1054.1 is subject to the harmless error
standard in People v. Watson (1956) 46 Cal.2d 818; and (4) a heading stating, “[u]nder
both Brady and California law, appellant was entitled to information regarding pending
criminal charges against the alleged victims before entering the plea” 6 (italics omitted).
6 We note, in his reply brief, defendant appears to rely on Morris for the proposition
that, under section 1054.1, subdivision (e), “the prosecution’s duty to disclose all
substantial material evidence favorable to an accused ‘extends to evidence which may
12
Defendant presents no argument with associated reasoning applying
section 1054.1, subdivision (e) to the facts of this case. (See United Grand Corp. v.
Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 [we do not make arguments for
an appellant and may disregard conclusory statements and arguments failing to disclose
the reasoning by which we are asked to reach the conclusions asserted]; Nwosu v. Uba
(2004) 122 Cal.App.4th 1229, 1246 [we do not search the record on our own seeking
error].) We surmise from the factual arguments raised in defendant’s opening brief,
however, that he believes the prosecution violated section 1054.1 because: (1) criminal
charges were pending against Rachelle and Anthony at the time he entered his plea;
(2) “[a]ccording to the prosecutor, at least one of reports [sic] regarding Rachelle’s and
Anthony’s conduct was dated in August 2019 and reflects the matter as ‘closed’ in
August, before [defendant] entered his guilty plea”; and (3) the “handling prosecuting
attorney acknowledged that before leaving office, the previous prosecuting attorney was
aware of Rachelle’s pending case,” citing page 355 in the reporter’s transcript.
First, there is no evidence in the record that charges were pending against Rachelle
and Anthony on September 5, when defendant entered his plea. The trial court took
judicial notice of a complaint purportedly filed against Rachelle and Anthony on
October 9,7 well after defendant entered his plea. Second, the prosecutor did not make
the statement that defendant attributes to her. It was defendant’s counsel who said a
report regarding Rachelle’s and Anthony’s conduct was dated in August and reflected the
reflect on the credibility of a material witness.’ ” (Citing People v. Morris (1988) 46
Cal.3d 1.) To the extent defendant asserts Morris supports this assertion, we disagree. In
Morris, our Supreme Court discussed the scope of a defendant’s constitutional due
process rights; the court did not discuss or analyze a defendant’s statutory rights under
section 1054.1. (Morris, at p. 30.) Indeed, section 1054.1 was enacted two years after
Morris was decided.
7 The complaint filed against Rachelle and Anthony is not contained in the record
on appeal.
13
matter as “closed” in August, before defendant entered his guilty plea. Defendant’s
counsel’s argument is not evidence. (Evid. Code, § 140; People v. Kiney (2007) 151
Cal.App.4th 807, 815; Van de Kamp v. Bank of America (1988) 204 Cal.App.3d 819,
843.) Third and finally, while it may be true the prosecutor said the prior prosecutor was
aware of the case against Rachelle before he left the district attorney’s office, the
prosecutor also explained the prior prosecutor was in the office until October 11, when
the prior prosecutor took vacation. Thus, even if we treat the prosecutor’s argument as an
admission, the portion of the record upon which defendant relies does not establish that
the prior prosecutor had information in his possession or knew of information in the
investigating agency’s possession implicating Rachelle and Anthony in the August
incidents prior to September 5, when defendant entered his plea. We thus conclude there
is no basis in the arguments presented by defendant on appeal to support the assertion the
trial court abused its discretion in denying the motion to withdraw the plea on the ground
of a section 1054.1, subdivision (e) violation.
None of the cases discussed in defendant’s brief supports his argument. We fail to
see the pertinence of Patterson given the facts presented in this appeal. In that case, the
defendant sought to withdraw his plea on grounds of mistake or ignorance when he
learned the plea rendered him subject to mandatory deportation. (People v. Patterson
(2017) 2 Cal.5th 885, 889.) Our Supreme Court explained the defendant’s motion was
not categorically barred because he had received a section 1016.5, subdivision (a)
advisement that “a criminal conviction ‘may have the consequences of deportation,
exclusion from admission to the United States, or denial of naturalization pursuant to the
laws of the United States.’ ” (Patterson, at pp. 890, 898.) Instead, the trial court was
vested with discretion under section 1018 to consider all factors necessary to bring about
a just result, including factors bearing on the defendant’s state of mind at the time of the
plea to determine whether “the defendant would not have entered the plea had he or she
understood the plea would render the defendant deportable.” (Patterson, at p. 899.) Our
14
Supreme Court concluded the trial court erred in finding “that even if Patterson was
unaware of the actual immigration consequences of his guilty plea, he could not, as a
matter of law, show good cause to withdraw that plea because he had been advised that
his plea ‘may’ have adverse immigration consequences.” (Id. at p. 899.) Thus, the court
“reverse[d] the judgment of the Court of Appeal and direct[ed] it to remand th[e] case to
the trial court, so that the trial court [could] exercise its discretion to determine whether
Patterson has shown good cause to withdraw his guilty plea on grounds of mistake or
ignorance.” (Ibid.)
Defendant discusses Patterson but fails to explain the pertinence of the case to the
facts before us on appeal. (See Allen v. City of Sacramento (2015) 234 Cal.App.4th 41,
52 [“citing cases without any discussion of their application to the present case results in
forfeiture”].) We understand the general proposition of law espoused in Patterson but
fail to understand how the case furthers defendant’s cause on appeal. The good cause
upon which the defendant relied in Patterson was his mistake and ignorance as to the
impact of his plea on his immigration status, which thus required the court to consider
what the defendant knew when he entered the plea. Here, the good cause upon which
defendant relied in support of his motion was the prosecution’s purported failure to
comply with Brady and section 1054.1. The question is thus whether defendant proved
the basis for his good cause by clear and convincing evidence. Patterson plainly is not
analogous in that regard.
Ramirez also does not assist defendant. In that case, there was no question that the
prosecution had ample opportunity to produce a supplemental police report containing
direct exculpatory evidence to the defendant prior to the admission of his plea, but failed
to do so. (People v. Ramirez (2006) 141 Cal.App.4th 1501, 1503, 1506.) The facts of
Ramirez are thus appreciably different from the facts in this case where defendant relies
on impeachment evidence rather than direct exculpatory evidence.
15
Because we find no basis in the arguments presented on appeal to conclude the
trial court abused its discretion in denying the motion to withdraw the plea, we affirm.
DISPOSITION
The judgment is affirmed.
/s/
Robie, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Mauro, J.
16