Petition for Writ of Certiorari — Caudle v. California

Supreme Gou™. U.S

FILED

05-252 su 10%

E CLERS

No. OFFICE OF THe GLb

IN THE SUPREME COURT OF THE

UNITED STATES

October Term, 1995

KENNETH EARL CAUDLE, JR.,

Petitioner,

V.

State of CALIFORNIA,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEAL FOR THE STATE OF

CALIFORNIA, FIFTH APPELLATE DISTRICT

PETITION FOR A WRIT OF CERTIORARI

Phillip H. Cherney

214 South Johnson Street

Visalia, California 93291

(209) 732-6852

Counsel! for Petitioner

QOSESTION PRESEXTED

DOES IT VIOLATE FIFTH AND SIXTH AMENDMENT

GUARANTEES TO TRIAL BY JURY AND DUE PRO-

CESS OF LAW FOR A TRIAL COURT TO OPENLY

ACKNOWLEDGE AND PRACTICE A POLICY THAT

INDUCES AN ACCUSED PERSON TO WAIVE HIS

RIGHTS, CHANGE HIS NOT GUILTY PLEA AND AC-

CEPT A MITIGATED, CONCURRENT SENTENCE IN

APPREHENSION OF THE IMPOSITION OF AN INDI-

CATED AGGRAVATED, CONSECUTIVE TERM OF

IMPRISONMENT IF HE PROCEEDS WITH A JURY

TRIAL AND IS FOUND GUILTY OF THE CHARGES?

i es |

TABLE OF CONTENTS

CIS OPN PPE eee) SU Ai cscveincessbcecssccnaseretrssicccnen i

FR OP Ie FIG Ge bsceissicccssveniesentetsnceriee nieces ii

FABLE OF RUFF ES ecescicssivcsnctsienetaroarebeannes iii

OPTI SO NIUG shckcssrsnsecenesssseprsemepaiiaomaiains 2

FW CIS vissinsnsesserssiciaichenisudbdiininieonianen 2

CONSTITUTIONAL SAFEGUARDS INVOLVED....... 2

STAT CIIEIE S kcéunsscssascasevecnsssinstonatmestonnmaumenaaita dain 2

A. Procedural and Factual Background ............. 3

Sh. FEUW Fanrte OE FUND cascnnssnnsnatasenniverearentoonceass 9

REASONS FOR GRANTING THE PETITION ........ 12

COI AIGY vnstsssscienissneiesnnematee meen 15

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PIP PICS © asisccssensinrsssvesntenivicunivmenrnemataenaee 1b |

PP PE IIOUN © wicsicsstvecstnazetarctccemntsasatnat omens 1c

TABLE OF AUTHORITIES

CASES

Federal

Brady v. United States

BE SG FEE 1 OOP OO cnvscnseveescercensevesvenovosvocers 9,14

United States v. Jackson

SI SIF © PIED cavssoicavisisscvccnsseceedvkessevensens 11

United States v. Wiley

278 F. 2d 500 (1960, 7th Cir.) ............ccccccccceees 12

Yates v. United States

Se SAAR, SP C0 PD cevecescscsiscsossovncseiveneseesserceses 12

California

People v. Bejarano

114 Cal. App. 3d 693 (1981)... eee 11

People v. Henderson

I ED iso ste ivicanaubeieadewaens 13

People v. Walker

83 Cal. App. 3d 619 (1978) uu... cccccscseeeeeee. 11

People v. West

BE SE IE COED cvcsesossencvnencenessnovsecconverecesess 5

People v. White

ou eB 0, | ce 13

STATUTES

Federal

Constitutional Law

Pee PIII vcnmaucttencenscccuntedusresadancbes 2,11,13

Statutes and Rules

Se Weeds MUR TERT dniteasdcbecnctudstasatnncsecseserene 1

California

Judicial Council of California Rules of Court

IE I Ce GF vittennctecctceictntaencsscesbancatees 11

IE GILT wikdsdednnsnistninisaseinbuidintinieitetinsapenninds 11

NE HIE snavctrncsennistsonnensdinncexiasesnconinoeaasidees 11

kk a | Bemameuttmmnndsne ntti rare mene 11

ID itive dnctesecsitdntndaidaalastntatcaneendis 11

Penal Code

NE BEE OD bitintrinoncctebvecsticvatousstenbaideccsion 3,4

NE SIE ecissstinsuntnnssnnsducnsnmcctasvedeaoncadesias 3,4

NE BC i scieiesinecennstecicaniccdcsseiednusaceteienn 11

SG Fo rai 0 Ue CED occteneccenconssnssiteinivedsacenedan 10

SOCEOR Te CO) ODD csiscccvccsevsincsosseccesocenssense 3

iv

rn ee

Aor ae aera

IN THE SUPREME COURT OF THE UNITED

STATES

October Term, 1995

KENNETH EARL CAUDLE, JR.,

Petitioner,

V.

State of CALIFORNIA,

Respondent.

Petition for a Writ of Certiorari to the Court of

Appeal For the State of California, Fifth Appellate

District

Kenneth E. Caudle, Jr., respectfully petitions for a

writ of certiorari to review the judgment of the Court of

Appeal for State of California, Fifth Appellate District.

Opinions Below

The opinion of the Court of Appeal (App. A,

infra),denial of rehearing (App. B, infra) and Supreme

Court of California denial of review (App. C, infra) are

not published decisions.

Jurisdiction ;

The Court of Appeal entered its judgment on

March 23,1995 (App. A, infra), and jurisdiction of this

Court is invoked under 28 U.S.C. section 1257.

Constitutional Safeguards Involved

The Constitution of the United States, Fifth and

Sixth Amendments, provide that an accused person |

shall enjoy the right to a speedy, public jury trial, which

shall not be denied without due process of law.

Statement

On February 10, 1994, after a jury had been

sworn, petitioner entered pleas of "no contest" to

charges that he molested his daughter. Petitioner, who

adamantly denied culpability from detention to trial, was

informed by the trial court the day of jury selection that

2

al

if he proceeded to trial and the jury found him guilty of

the charges the court would in all probability impose the

maximum term (17 years, 4 months) of imprisonment,

whereas if he changed his not guilty pleas before

exercising his right to have a jury decide the case, the

court would impose the mitigated term (6 years) of

imprisonment. Petitioner's application to withdraw his

pleas on the ground his constitutional rights were

violated by coercive trial court practices was denied,

and he has exhausted his review remedies in the courts

of the State of California.

A. Procedural and Factual Background

Petitioner was arraigned November 15, 1993 in

Tulare County Municipal Court for California, on a

complaint filed November 1, 1993, alleging that from

July 6, 1991 - July 12,1992, he ommitted continuous

sexual abuse upon his natural daughter, Kimberly

Costa, in violation of California Penal Code section

288.5; he was also charged with two separate

molestation violations of section 288(c), in November,

1992 and January, 1993; each charge alleged a

violation of a position of trust. (Cal.Penal Code, sect.

3

————————— ee

1203.066(a)(9).) Petitioner entered pleas of not guilty to

all charges and denied the allegations.’

Petitioner retained private counsel, was held to

answer on charges December 12, 1994, and an

information was filed December 22. Petitioner was

arraigned in Superior Court for Tulare County,

December 23, he entered pleas of not guilty and denied

the allegations, and bail was reduced from $100,000 to

$30,000.

The cause was set for trial February 7, 1994. At pre-

trial conference on January 31, 1994, petitioner refused

to withdraw his not guilty pleas and confirmed the trial

date; on February 3, 1994, trial was continued to

February 9, 1994. At the pretrial conference, the court

indicated the mitigated term (six years) in state prison,

but petitioner rejected the "plea indication."

On February 9, the case was assigned for trial, and

at 10:45 a.m., a discussion about in limine motions

occurred in open court. At a time prior to general voir

1 Petitioner, who had never been arrested before, gave a full, taped

statement to Tulare police officers, denying his daughter's

accusations, made the same day he had called police to report her

as “out of control," at his estranged wife's request; he has no prior

criminal record,and voluntarily submitted to a polygraph exam,which

he passed.

4

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dire of prospective jurors, and without the court

reporter, a discussion occurred with both counsel,

petitioner, and the trial court, in which the court

explained the maximum punishment to petitioner -- in

excess of seventeen years in state prison -- and

indicated the "strong likelihood" that he would receive

such a punishment if a jury found him guilty as

charged. If, however, petitioner changed his pleas, the

court promised it would abide by the pretrial judge's

indication and impose the mitigated term (six years) in

state prison on California Penal Code, section 288.5,

and concurrent sentences on the additional charges of

violating section 288(c).

Petitioner and his trial attorney discussed the

indication from the court before jury selection on

February 9, but petitioner continued to protest his

innocence, and in the afternoon of February 9, 1994 a

jury was selected.

On the morning of February 10, 1994, petitioner and

his attorney again met with court and prosecutor and

discussed the court's indicated sentence, and the

probable punishment if convicted by the jury, i.e.,

aggravated, consecutive sentences in prison. At

5

rns is

approximately 11:00 a.m., February 10, Caudle

appeared in open court before the jury and withdrew his

not guilty pleas in order to plead nolo contendre

pursuant to People v. West 3 Cal.3d 595, 604, 91

Cal.Rptr. 385 (1970).

Upon application, accompanied by sworn affidavits,

and the prosecutor's concession that the trial court's

statements to petitioner about potential punishment had

been "inflexible," the court proceeded to hear the

application to withdraw the pleas.

The trial court inquired at the outset cf the plea-

withdrawal hearing, whether "the Court [should] have

engaged in this conduct, and was it improper for the

Court to engage in this conduct? " (RT 4/4/94, p. 22:

16-18.) It acknowledged a policy of giving defendants

an "indicated sentence" of "the probable downside risk

of going to trial...," but questioned whether the practice

violated any constitutional rights. (RT 4/4/95, p.18:9.)

In point of fact, the record of what the jury was

informed by the trial court after the plea on February 10,

1994, is the best evidence of what the court threatened

to do to petitioner in off-the-record discussions prior to

his change of plea:

"Is it fair to him? Well, he's pled guilty pursuant

to People versus West, which is a doctrine that

says that, 'l understand I'm pleading guilty and

I'm going to take every hit that the Court's going

to give me for pleading guilty. But | can't take the

risk of going to trial on this, because if I'm found

guilty, | think Judge Broadman's going to give me

17 years and four months. And, therefore, it's

better for me to do six years, knowing that I'm

going to do six years, rather than take the risk of

doing 17 years and four months.’

Because that's what he thinks I'm going to do

to him, because that's the most | could do to him.

And that's what he thinks is a probable outcome

if he were convicted." (RT 2/10/94, pp. 7-8.)

The "probability" exercising the right to trial would lead

to increased punishment was redoubled a few moments

later in the trial court's comments to the jury:

" [B]ecause he doesn't want to risk you folks

finding him guilty of 17 -- of the charges and me

sending him to prison for 17 years and four

months." (RT 2/10/94: pp. 9-10.)

Moreover, the court below accepted petitioner's factual

7

recitation in support of his application to withdraw the

pleas during arguments at the hearing:

"The most important facts:l thing is that, from

my viewpoint, he says he felt intimidated

because he felt that the most probable sentence

if he went to trial and was found guilty was 17

years, and he felt pressure as a result of that.

| can't dispute that you felt pressure as a result

of that. Only thing | can tell you is that | didn't tell

you were for certain going to get 17 years, four

months, but | told you if you were convicted it

was most probable that's what you would get,

based on what | understood to be the facts. But,

as | said before, | didn't know what all the facts

were." (RT 4/4/94, p. 8: 7-20.)

Further, in the mind of the prosecutor, there was

little doubt about the import of the trial court's words to

petitioner; when the trial court asked the prosecutor

whether it had been "inflexible" in its indication to

petitioner of the aggravated, consecutive sentences, he

responded: "| think that language that's been addressed

here that there was a strong possibility or probability

that he could receive the maximum punishment was

8

made very clear." (RT 4/4/94: 24: 17-20.) And at the

time the court denied the motion to withdraw the pleas,

it admitted: "So it is true without question that | told you

that if, in fact, everything went the way it was explained

to me, you were going to probably get the maximum

term." (RT 4/4/94: 35: 16-19.)

Nonetheless, the trial court denied the application to

withdraw the pleas but signed a Certificate of Probable

Cause, April 4, 1994, permitting direct review. Notice

of Appeal was filed April 7, 1994; the decision of the

Court of Appeal was filed March 23, and rehearing

denied April 6, 1995. The Supreme Court of California

denied review on June 14, 1995. Petitioner has been

free on bail pending review.

B. The Rights at Issue

Petitioner's guarantee to a trial by jury was

needlessly chilled by the apprehension of greater

punishment for the exercise of his fundamental right,

and due process should have protected him from

coercion of "no contest" pleas. Instead, the trial court's

admitted policy of indicated maximum punishments

prior to trial, and the actual course of events in this

9

case, reveal a practice that violates due process of law

and the right of the accused to present his defense to a

jury of his peers.

Petitioner filed a timely application to withdraw the

pleas with supportive affidavits, no evidence in

opposition was presented, and the trial court denied the

application, April 4, 1994. The Court of Appeal for the

Fifth Appellate District of California affirmed, holding

that "a waiver of the right to jury trial is valid so long as

it was voluntarily, knowingly and intelligently made,

even though fear of the maximum sentence encouraged

the waiver. (Brady v. United States (1970) 397 U.S.

742, 747-753.) " (App., infra, p. 9.)

Petitioner sought rehearing on the ground that this

Court had specifically noted in Brady, supra, p. 751, ftn.

8, "there is no claim that ... the trial judge threatened

Brady with a harsher sentence if convicted after trial in

order to induce him to plead guilty." Direct and indirect

judicial threats and inducements were reproved in

Brady and other decisions from this Court and federal

circuit courts examining similar acts, as argued by

petitioner below. (Ibid.) The Court of Appeal denied

rehearing, April 6, 1995, and Supreme Court of

10

California denied review, June 14, 1995.

Unlike Brady, at no time did petitioner acknowledge

guilt, and in fact, his affidavit on file explained that he

changed his pleas "solely because | was frightened of

the risk that if the jury found me guilty of the charges

alleged | would in all likelihood be imprisioned in excess

of seventeen years for crimes | did not commit."

Nonetheless, petitioner's statement of concern over

whether his daughter's prior sexual activity would be

admissible at trial deflected the courts below from

examination of trial court responsibility to refrain from

indicating a retaliatory punishment for exercising the

right to a jury determination. (App. A, infra, pp. 6-7.)

Petitioner's "incredible dilemma" of choosing between

exercising his right to trial, or waiving it in order to avoid

the maximum allowable punishment, was no less

violative of his rights because he may have

coextensively taken account of another legitimate

factor. Petitioner respectfully submits that his

constitutional rights to due process of law and to a trial

by jury were needlessly chilled by judicial acts that

superceded his subsidiary fears about the impact

evidentiary rulings might have on his defense.

11

|

Reasons for Granting the Petition

California has a determinate sentencing scheme that

allows trial judges wide latitude in considering factors in

mitigation and aggravation before passing judgment

upon a convicted person. At minimum, an indication of

the aggravated term of imprisonment, and consecutive

sentencing, as was done below on the day of trial,

ignores the policy mandates of California Penal Code,

section 1170.1(a)(1), and Judicial Council of California

Rules of Court 421, 423, 425. Under every

circumstance individualized sentencing choices" must

be accompanied by a statement of reasons, and only in

the most aggravated of cases and worst offenders,

could imposition of the aggravated term of

imprisonment pass scrutiny on appeal. (Cal. Penal

Code, section 1170(c); Rule 406(b)(5); People v.

Walker 83 Cal.App.3d 619, 622, 148 Cal.Rptr. 66

(1978).) Imposition of consecutive sentences would

require factors in addition to those used to aggravate

the base term. (People v. Bejarano 114 Cal.App.3d 693,

12

704-705, 173 Cal.Rptr. 71 (1981).)°

It is established that under Fifth and Sixth

Amendment analysis that "due process forbids

convicting a defendant on the basis of a coerced guilty

plea. (Citation.) " (United States v. Jackson 390 U.S.

570, 582 ftn 20, 88 S. Ct. 1209 (1968).) Judicial acts

that impact the basic rights to due process of law, self-

incrimination, and a trial by jury "cannot be pursued by

means that needlessly chill the exercise of basic

constitutional rights. (Citations.) " (Id., at p. 582.)

The essential principle is stated in United States v.

Jackson, supra, wherein this Court held it violated

defendant's fundamental right to trial by jury to expose

him to capital punishment for aggravated kidnapping

only if defendant selected trial by jury; if he pleaded

guilty or waived jury, then he was not exposed to the

death penalty. The "chilling" effect on the right to trial

by jury necessitated reversal of judgment and the

2 Petitioner's lack of record alone would be a significant factor in

mitigation under Rule 423((b)(1), which would make it difficult to

impose the aggravated term of imprisonment in most cases.

Certainly the fact that both the pretrial and trial judges indicated a

mitigated term of imprisonment in plea discussions implies that

petitioner and the crime were not actually "aggravated."

13

invalidation of the legislation. Similarly, in United States

v. Wiley, 278 F.2d 500, 503-504 (1960, 7th Cir.) citing

Yates v. United States, 356 U.S. 363, 366, 78 S.CT.

766 (1958), the review court recognized inherent

supervisory power to correct abuses in the

administration of justice by sentencing courts; in setting

aside the sentence imposed by the lower court, the

Wiley Court wrote:

“Our part in the administration of federal justice

requires that we reject the theory that a person

may be punished because in good faith he

defends himself when charged with a crime,

even though his effort proves unsuccessful. It is

evident that the punishment imposed by the

district court on Wiley was in part for the fact that

he availed himself of his right to a trial, and only

in part for the crime for which he was indicted."

California courts appear to accept the federal

interpretation of Fifth and Sixth amendment protections

in this context, as stated in People v. White, 16 Cal.3d

791, 802, 129 Cal. Rptr. 769 (1976). (See also, People

v. Henderson, 60 Cal.2d 482. 497, 35 Cal.Rptr.77

(1963), an oft-cited case for the principle that greater

14

punishment cannot be imposed for the exercise of

fundamental rights.) However, the "incredible dilemma"

of choosing between suffering an erroneous conviction

to stand unchallenged, or appealing therefrom with fear

of suffering a greater punishment for reversal, is no less

a dilemma in the assertion of a good faith defense

before a jury, and receiving benefits of individualized

sentencing guidelines, or facing unbridled, invidious

promise of maximum punishment for the exercise of the

right to trial by jury. (Ibid.) Petitioner can only surmise

from the record in this case that California courts now

ignore this Court's prior decisions and it is an important

principle at stake that must be reaffirmed by granting

certiorari here.

CONCLUSION

Petitioner cannot claim that his petition presents an

extraordinary issue of great public moment, but he

believes the record demonstrates that his personal right

to trial by jury was eviscerated by a coercive judicial

practice offensive to fundamental notions of due

process of law. Petitioner submits the California Court

of Appeal for the Fifth Appellate District misapplied

15

Brady v. United States, supra, to the specific facts of

this case, and he has exhausted his review remedies in

the courts of the State of California.

Petitioner requests that certiorari be granted to

rectify clear abuses of basic constitutional rights, and,

ultimately, in order to restore his not guilty pleas so that

he may proceed to a trial on the merits without fear of

reprisal.

DATED: August 7, 1995

Respectfully submitted,

Wh,

PHILLIV’H. CHER

Counsel for Pe a

Kenneth Earl/Caudle, Jr.

I

16

APPENDIX "A"

NOT TO BE PUBLISHED IN OFFICIAL

REPORTS

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE OF THE STATE

OF CALIFORNIA,)

)

Plaintiff and Respondent,)

MARCH 23, 1995

F021357

KENNETH E. CAUDLE, JR.,

)

)

)

)

) (Sup. Ct 34511)

)

) OPINION

)

)

Defendant and Appellant

)

APPEAL from a judgment of the Superior Court

of Tulare County. Howard R. Broadman, Judge.

Phillip H. Cherney for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George

Williamson, Chief Assistant Attorney General, Robert R.

Anderson, Assistant Attorney General, and Wanda Hill

Rouzan, Deputy Attorney General, for Plaintiff and

Respondent.

--000000--

Defendant appeals from conviction of violation

of Penal Code sections 288, subdivision (c) and 288.5,

arguing the denial of this motion to withdraw guilty pleas

constituted an of his motion to withdraw guilty plea

constituted an abuse of discretion and the trial court

"chilled" his right to trial.

STATEMENT OF FACTS

On December 22, 1993, an information was filed

alleging defendant had committed continuous sexual

abuse upon his daughter (count 1); he was also

2

charged with two separate incidents of molestation

(counts 2 and 3). Each of the three charges alleged

violation of a position of trust

(Pen. Code, sect. 1203.066 (a) (9)). Defendant entered

not guilty pleas and the case was set for trial.

A pretrial conference was conducted on January

31, 1994, before Judge Kalashian. Defendant was

offered the mitigated term of six years' imprisonment.

This plea indication was rejected.

On February 3, 1994, defendant filed a motion

for an order permitting cross-examination of the victim

as to her prior sexual conduct and for admission of

evidence thereon. Although no ruling was entered on

this motion, it appears that it was to be heard "in limine,"

which hearing was obviated by defendant's plea.

Prior to jury selection on February 9, 1994, a

conference was held in chambers at which the trial

judge, Howard Broadman, the prosecutor, Robert .

Dempsie, defendant and his counsel, Charles

Rothbaum, were present. During this conference Judge

Broadman informed defendant he would honor Judge

Kalashian's plea indication. He also stated that "if the

3

case came down the way it was related to me," and

defendant was found guilty on all charges he would

"probably" be sentenced to the maximum term of

imprisonment.

On February 10, 1994, defendant withdrew his

notguilty plea and pled no contest to all counts and

special allegations.

On March 29, 1994, defendant filed a motion to

withdraw his no contest pela. Judge Broadman denied

the motion after hearing on April 4, 1994.

Immediately thereafter, defendant was

sentenced to six years’ imprisonment on count 1; two-

year terms were imposed for counts 2 and 3, to run

concurrently with the term imposed for count 1.

DISCUSSION

Defendant argues the trial court abused its

discretion by denying his motion to withdraw guilty plea

because his free judgment was overridden by "judicial

threat" that if he exercised his right to trial and was

convicted of all charges he would be sentenced to the

maximum possible term of imprisonment.

The foundational legal principles are well

4

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.

established:

" In considering the propriety of the denial of the

motion to withdraw appellant's guilty plea, we

preliminarily observe that a plea of guilty may be

withdrawn at any time before judgment for good

cause shown under the provisions of Penal Code

section 1018. The granting or denial of an

application to withdraw a guilty plea is within the

discretion of the trial court after a consideration

of all the factors necessary to bring about a just

result; and the decision of the trial judge will not

be disturbed on appeal unless an abuse thereof

is clearly demonstrated. [Citations.] While the

section is to be liberally construed and a plea of

guilty may be withdrawn for mistake, ignorance,

or indadvertence or any other factor overreching

defendant's free and clear judgment, the facts of

such grounds must be established by clear and

convincing evidence." (People v. Waters (1975)

92 Cal.App.3d 323, 328, fn. omitted.)

Defendant's argument fails for two reasons. First, the

record does not contain clear and convincing evidence

that Judge Broadman directly or indirectly "threatened"

5

defendant to the maximum term of imprisonment if he

insisted on trial. At the hearing on the motion to

withdraw guilty plea, Judge Broadman stated that at the

February 9, 1994, conference he "did not tell

[defendant] that he was for sure going to get 17 years,

four months." The court said, "In this case I'm confident

that | told [defendant] if the case came down the way

that it was related to me by the prosecution, that the

most probable sentence would be that [defendant] was

going to get something close to 17 years in prison."

The court also stated that he did not know all the facts,

just what he had been told by the prosectuor.'

It is important to note that in his declaration in

support of the motion to withdraw guilty plea, Charles

Rothbaum, defense counsel present at the conference,

did not declare that Judge Broadman definitively stated

defendant would receive the maximum term if

convicted. Rather, Rothbaum declared that during this

1 Although we may have reservations about the propriety of the

judge “testifying” to a material contested fact and simultan-eously

resolving the very issue discussed, no objection was made at the

hearing on the motion and no contention is made on appeal the

procedure followed was wrong. There-fore, we need not discuss

this point any further.

6

meeting "[t]he court explained the maximum possible

sentence (in excess of seventeen years) under the law

to [defendant]." Mere advisement by the court of the

maximum sentence defendant faces is not erroneous.

(See, e.g., People v. Spears (1984) 153 Cal.App.3d 79,

87.) When, as here, the evidence conflicts, the trial

court's findings "cannot" be disturbed. (People v.

James (1950) 99 Cal.App.2d 476, 483.)

Second, defendant's own statements at the

hearing belie the contention that he pled guilty solely in

response to an overwhelming fear he would receive the

maximum sentence if he insisted upon his right to trial.

His words clearly establish that on the evening of

February 9th, he assessed the relative weakness of his

defense in light of his attorney's opinion the court would

not permit him to introduce evidence of the victim's prior

sexual conduct and decided it was in his best interest to

change his plea and accept a known six-year sentence.

After counsel had argued, defendant and the court

engaged in the following

colloquy:

" THE DEFENDANT: Could | speak, Your

Honor?

Er

THE COURT: Go ahead.

THE DEFENDANT: From my standpoint, the

night we are talking about, the night before the

trial and everything, a big part of, | had come to

understand, of my case was the sexual past of

my daughter. And we were to have that hearing

an hour before my opening statements were to

start on our trial, the morning of my trial. The

implication | received from my attorney was that

you, in fact, were not gonna allow that evidence

to go through, and that would have killed my

case entirely. In other words, an hour before my

trial started, | understand in my solitude that you

were not going to allow a big portion of my

evidence to be presented to the jury in my trial.

And that was the reason | was afraid to take the

17 -- | thought | would get 17 years.

THE COURT: What made you think that?

THE DEFENDANT: That was what Mr.

Rothbaum [his counsel] led me to believe, that

you would not -- that sexual past of the child was

not something that comes to court very much,

and usually he didn't feel that you were in favor

8

of letting that before the jury. And to me it was

like going to trial without having any evidence in

my pocket.

THE COURT: See, that puts a whole chill on

what you were really telling me before in the

sense of why you were -- why you were wanting

to withdraw your plea because you felt you were

going to getthe 17 years. And now | hear you

telling me you wanted to withdraw your plea

because you felt you were going to lose the

motion.

THE DEFENDANT: Well, I'm just telling you

that was one of the mitigating factors.

THE COURT: | appreciate your honesty, frankly.

THE DEFENDANT: Yes."

Further, in his declaration supporting the motion

to withdraw guilty plea, defendant stated that he and his

attorney had discussed the motion to permit cross-

examination of the victim about her prior sexual history.

He was concerned that if the court denied his motion to

cross-examine his daughter about her prior sexual

activity it "would unfairly prejudice my defense."

Thus, defendant himself provided the evidentiary

g

ea ee

support for the trial court's determination he had made

a rational decision to accept the plea bargain based on

his perception of the weakness of his defense in light of

counsel's opinion he would not be permitted to

introduce evience of the victim's sexual conduct.

Reliance on the advice of counsel doesn not provide a

basis for withdrawal of the plea. (People v. Van

Valkenburg (1952) 111 Cal.App.2d 337, 342.)

People v. Ingles (1989) 216 Cal.App.3d 1303 is

somewhat illustrative. There, defendant sought to

withdraw his guilty plea because he was afraid he would

otherwise be incarcerated immediately. Since he was

a former police officer, he feared for his safety. The

motion was denied and the reviewing court affirmed,

determining there had been no coercion. Rather,

"defendant fully comprehended his options," and made

an informed decision to accept the offered plea

agreement. (id. at pp. 1308-1309.)

Likewise here, the record does not demonstrate

that the trial court abused its discretion by concluding

defendant had not shown by clear and convincing

evidence that his free judgment had been overwhelmed

by a threat of maximum imprisonment if he exercised

10

his right to trial. "“There is nothing insidious about a

plea agreement." (People v. Ingles, supra, 216

Cal.App.3d at p. 1309.) Defendant weighed his options

and, based on his assessment of the weakness of his

defense and the possible maximum sentence he could

receive if convicted, chose to accept the plea indication.

"We have considered defendant's claim of coercion and

find in light of the testimony and findings that the court

did not abuse its discretion in denying the motion to

withdraw the plea of guilty." (Ibid.)

Equally unconvincing is defendant's argument

that the court "chilled" his right to a jury trial by informing

him that he would probably receive the maximum

sentence if he was convicted on all charges and if the

facts were as the prosecutor indicated them to be. A

waiver of the right to jury trial is valid so long as it was

voluntarily, Knowingly and intelligently made, even

though fear of the maximum sentence encouraged the

waiver. (Brady v. United States (1970) 397 U.S. 742,

747-753.

DISPOSITION

The judgment is affirmed.

Buckley, J.

WE CONCUR:

Vartabedian, Acting P.J.

Thaxter, J.

12

APPENDIX "B"

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE OF THE STATE

OF CALIFORNIA, )

)

Plaintiff and Respondent,

F021357

KENNETH E. CAUDLE, JR., ORDER

)

)

)

)

) (Superior Ct 34511)

)

)

Defendant and Appellant. )

)

Appellant's peititon for rehearing in the above entitled

matter is denied.

Dated: April 6, 1995.

Buckley, J.

WE CONCUR:

Vartabedian, Acting P.J.

Thaxter, J.

1b

APPENDIX "C" |

Fifth Appellate District No F021397

$046253

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE OF THE STATE

OF CALIFORNIA,

)

)

Respondert, )

)

)

JUNE 14, 1995

KENNETH E. CAUDLE, JR.,

ll

Appellant.

Appellant's petition for review DENIED.

LUCAS

Chief Justice

s¢