# Petition for Writ of Certiorari — Caudle v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 915

## Text

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
BPP III A vesssncsscesssresnescsciciensmaamaamanens la
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

Ra Nr Rl

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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i
:
.

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¢

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1645%3A1. Public record. Not legal advice.