California Cases August 17, 2022: People v. Fudge

Case Description

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NOT TO BE PUBLISHED

(Solano County Super. Ct. No. FCR348330)

Rodriguez, J.

Armed with an operable taser gun, Rayana Amani Fudge went into a big-box retail store, filled a shopping cart with merchandise, wheeled it outside, and then threatened store employees with the taser when they tried to apprehend her. The prosecution charged Fudge with second degree robbery (Pen. Code, § 211, statutory references are to this code). Fudge waived her right to counsel ( Faretta v. California (1975) 422 U.S. 806 ( Faretta )) and pled no contest to the charge. Thereafter, she moved to withdraw the plea. The trial court denied the motion; it suspended imposition of sentence and placed Fudge on probation.

On appeal, Fudge contends the trial court erred by permitting her to waive her right to counsel, and she challenges the denial of her motion to withdraw the plea. Fudge also argues trial counsel was ineffective for failing to request mental health diversion. Finding none of these contentions persuasive, we affirm.

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DISCUSSION

Fudge raises three claims, each of which we address below.

I.

At the outset, Fudge contends her Faretta waiver was involuntary and equivocal. We disagree.

At an April 2020 readiness conference, defense counsel moved to release Fudge on her own recognizance; the trial court denied the motion and inquired whether the prosecution had made a plea offer. The most recent offer, the prosecutor replied, was to plead to the "charge, a low-term top," with felony probation with a "top of low term" and "no immediate state prison." Before the prosecutor finished reciting the offer, Fudge said she wanted "to take it." The prosecutor added that Fudge would be released from custody until sentencing, at which time the parties would discuss "the amount of county jail that she should do." Fudge reiterated, "I want to take it." When the court suggested Fudge consult with defense counsel, Fudge insisted, "I want the offer."

The trial court gave Fudge an opportunity to discuss the offer with defense counsel. More than an hour later, the court recalled the case, and defense counsel expressed his opposition to the plea. Counsel opined the plea would not be knowing, intelligent, or voluntary based on his knowledge of the case, Fudge's motivation for accepting the plea - her desire to see her ailing grandmother - and the "obvious PTSD and trauma that she's incurred" in her life. Counsel also questioned whether the plea promoted public safety, given that the court had declined to release Fudge on her own recognizance. When the court asked whether Fudge wanted to accept the offer, defense counsel replied, "I don't know, because I haven't been able to go through it

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with her. She's a 19-year old." Fudge responded that she was 20 years old, and she was "ready" to accept the offer.

At that point, defense counsel suggested the trial court relieve him and that Fudge - if she wanted "to go pro per" - complete a Faretta form. The court addressed Fudge. It observed, "it's clear to me you wish to take the plea. Is that true?" Fudge replied, "Yes, Your Honor." The court queried whether Fudge would like to represent herself in accepting the plea, and Fudge responded, "Yes, Your Honor." Then the court carefully reviewed the Faretta form with Fudge, pointing out the dangers of self-representation and noting defense counsel's opposition to the offer. When the court asked Fudge whether she understood she would receive no special consideration because she was representing herself; that she would be opposed by a trained prosecutor; that she must comply with the rules of criminal procedure and evidence; and that she had a right to appointed counsel, Fudge replied, "Yes, Your Honor." In response to questions about her education and training, Fudge said she completed 12th grade and that she had listened to defense counsel's advice and decided not to follow it.

The trial court reviewed the plea form with Fudge. The court told Fudge that the maximum punishment for second degree robbery - a serious felony and strike offense - was five years in prison. The court also advised Fudge of the consequences of pleading to a strike offense. Fudge said she understood. The court suggested that if Fudge gave her "lawyer additional time to work on this case," there was a distinct possibility Fudge would receive a better result, and that by accepting the offer, she was "completely eliminating the opportunity to get a plea that is not a strike." Fudge said she understood. The court warned Fudge that because she was representing herself - and voluntarily agreeing to the plea - she would "not be able to

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undo" the plea or "complain about [her] own bad lawyering" if she later changed her mind. When the court asked Fudge whether she understood, she replied, "Yes, Your Honor." Then the court reviewed the rights Fudge would relinquish by entering a plea; Fudge said she understood - and agreed to give up - those rights.

Finally, the trial court explained that the only promise made to Fudge was that she "would get probation, no initial state prison." The court told Fudge she "could get up to a year in the county jail. You'd be released today, report to probation . . . to come back for judgment and sentence." The court said Fudge might be "getting out of jail just for a short term in order to immediately come back. Do you understand that?" Fudge confirmed she understood and that she wanted to enter a plea.

The trial court determined Fudge "knowingly, intelligently, and understandingly" waived her right to counsel based on findings that Fudge had an opportunity to speak with defense counsel, "that she expressed both before and after speaking with her counsel that she wished to take this plea," and based on findings that Fudge was informed of the drawbacks of entering the plea. The court relieved defense counsel but allowed him to stay in court "to assist." Thereafter, Fudge pled no contest to the charge. The court released Fudge, ordered her to report to the probation department, and set a date for sentencing.

"A defendant has a federal constitutional right to the assistance of counsel during all critical stages of a criminal prosecution" ( People v. Mickel (2016) 2 Cal.5th 181, 205) but a defendant may waive that right and represent herself, provided the waiver is "knowingly and voluntarily made," timely asserted, and unequivocal. ( People v. Doolin (2009) 45 Cal.4th 390, 453; Faretta , supra , 422 U.S. at p. 835.) When a defendant validly waives the

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right to counsel, the trial court must grant the defendant's request for selfrepresentation. We independently review the entire record to determine the validity of the Faretta waiver, keeping in mind that the defendant has the burden to demonstrate the waiver is invalid. ( People v. Sullivan (2007) 151 Cal.App.4th 524, 547, 549.)

Fudge contends her Faretta waiver was not voluntary because defense counsel "effectively abandoned" her during plea negotiations. Fudge insists she wanted to enter a plea against defense counsel's advice, " but with his assistance ," and that counsel's refusal to participate in the negotiation process rendered her waiver involuntary. (Italics added.) The record belies this claim. The trial court carefully reviewed the required admonishments with Fudge, taking pains to ensure her waiver of the right to counsel was made with an understanding of "the significance and consequences of the decision and . . . without coercion." ( People v. Koontz (2002) 27 Cal.4th 1041, 1070.) During their colloquy, the court reminded Fudge that she had a right to appointed counsel and ensured she was electing to proceed without counsel's assistance. Defense counsel remained in the courtroom "to assist," but Fudge did not enlist his support, and she did not request that another attorney represent her. The only plausible inference supported by this clear record is Fudge voluntarily waived her right to counsel so she could accept the prosecution's plea offer after defense counsel strenuously discouraged her from accepting it. A "defendant has a personal right to enter the plea . . . she wants, even if counsel believes that plea is a bad tactical choice." ( People v. Clemons (2008) 160 Cal.App.4th 1243, 1251.)

The cases upon which Fudge relies - including United States v. Hernandez (9th Cir. 2000) 203 F.3d 614 and Crandell v. Bunnell (9th Cir. 1998) 144 F.3d 1213 -

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are distinguishable. The defendants in those cases faced an unconstitutional choice - pleading guilty or "submitting to an unconstitutional trial" ( Hernandez , at p. 627) or having "incompetent counsel or no counsel at all." ( Crandall , at p. 1214.) Here, by contrast, Fudge was under no such compulsion. Her decision to forego representation to accept the plea offer did not render her choice involuntary. ( People v. Ware (2020) 52 Cal.App.5th 919, 960 [defendant's "selection of self-representation, over the delay necessitated by a mistrial and retrial with new counsel, did not render his choice involuntary"], review granted Dec. 9, 2020, S263923.)

Also unavailing is Fudge's contention that her Faretta waiver was equivocal. Before accepting a defendant's request for self-representation, a trial court "must determine 'whether the defendant truly desires to represent . . . herself.' [Citation.] Thus, 'an insincere request or one made under the cloud of emotion may be denied.'" ( People v. Tena (2007) 156 Cal.App.4th 598, 607 ( Tena ); People v. Marshall (1997) 15 Cal.4th 1, 23 [words or conduct "reflecting ambivalence about self-representation" may support denial of Faretta request].) As discussed above, the record demonstrates Fudge wanted to represent herself so that she could accept the plea offer. ( People v. Ware , supra , 52 Cal.App.5th at p. 961 [defendant "knew exactly what he was doing" when he asked to represent himself].) That Fudge may have been motivated to enter a plea to spend time with an ailing family member does not suggest equivocation in her desire to represent herself. (See People v. Burgener (2016) 1 Cal.5th 461, 471.)

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Fudge analogizes her request for self-representation to the equivocal request made by the defendant in Tena , supra , 156 Cal.App.4th 598. In that case, the defendant's remarks regarding self-representation were "impulsive reactions to his frustrated attempts to secure an attorney who would subpoena the witnesses that he desired, rather than unequivocal Faretta requests." ( Id. at p. 608.) As the Tena court observed, the defendant's "goal was a defense based on these witnesses but presented by counsel, rather than by himself." ( Ibid. ) Here - and unlike Tena - Fudge's request for selfrepresentation was not the product of emotion. Rather, it was a reasoned, informed decision made after Fudge had discussed the plea offer with defense counsel and engaged in an extensive colloquy with the trial court. In contrast to Tena , the record does not suggest Fudge wanted counsel's assistance in entering the plea. That Fudge did not expressly "ask that defense counsel be relieved" is of no moment. Fudge was made aware of her right to appointed counsel, and she unequivocally waived that right.

In sum, Fudge has failed to satisfy her burden to establish her waiver of the right to counsel was invalid.

II.

Next, Fudge challenges the trial court's denial of her motion to withdraw the plea. We are not persuaded.

Two months after entering a no contest plea, Fudge asked the trial court to reappoint counsel. The court granted the request. Then, in May 2021, Fudge moved to withdraw the plea. Fudge acknowledged the court engaged in a detailed voir dire before accepting her plea, but nevertheless argued the plea was not knowing, intelligent, or voluntary because she was cognitively impaired, had a traumatic childhood, and suffered from post-traumatic stress disorder and depression. Additionally, Fudge claimed she

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had recently had a change in her "psychiatric medication," and that she had not received her daily medication when she entered her plea. She also alleged she was afraid of being incarcerated during the COVID-19 pandemic and concerned about her ailing grandmother's health. In support of the motion, a clinical psychologist opined these circumstances could "have impaired [Fudge's] ability to exercise good judgment." According to the psychologist, Fudge likely "decompensated" at the plea hearing and "was so distraught that she was not thinking logically or linearly." The prosecution opposed the motion.

The trial court denied the motion to withdraw the plea, finding Fudge's plea was knowing, intelligent, and voluntary. It acknowledged the psychologist's "conclusions may in fact be true, but some of the things the doctor indicated - that [Fudge] was decompensated, that she was distraught - those were not reflected in her demeanor or . . . the words she used" at the plea hearing. The court disagreed with defense counsel's characterization of Fudge's behavior at the plea hearing - Fudge, the court noted, did not appear to be in "psychiatric crisis." To the contrary, the court found that her behavior "fell well within the range of people who are acting respectfully and appropriately." And as the court pointed out, Fudge's competency at the plea hearing was never in doubt. Last, the court reasoned that there was a difference between a wise decision, and a "knowing, intelligent, and voluntary [one]. And when I look at the questions I asked [Fudge] in open court, and the burden is on her to convince me otherwise, I find it was knowing, intelligent, and voluntary."

"A change of plea must be voluntary and intelligent, with a defendant being advised of his or her constitutional rights, and of the direct consequences of the conviction." ( People v. Dillard (2017) 8 Cal.App.5th 657, 664.)

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A defendant may, before entry of judgment, move the trial court to set aside a guilty plea for good cause. (§ 1018.) To establish good cause, "the defendant must show by clear and convincing evidence . . . she was operating under mistake, ignorance, or any other factor overcoming the exercise of . . . her free judgment, including inadvertence, fraud, or duress." ( People v. Breslin (2012) 205 Cal.App.4th 1409, 1416 ( Breslin ).) Good cause "does not include mere 'buyer's remorse' regarding a plea deal." ( People v. Simmons (2015) 233 Cal.App.4th 1458, 1466.) The trial court's decision on a motion to withdraw a guilty plea is discretionary and will not be disturbed except on a showing of clear abuse. ( Breslin, at p. 1416 . ) In ruling on the motion, the court may rely on "its own observations of the defendant" ( People v. Ravaux (2006) 142 Cal.App.4th 914, 918) and may consider "the defendant's credibility and . . . her interest in the outcome of the proceedings." ( Dillard, at p. 665.) On appeal, we must accept" 'the trial court's factual findings if substantial evidence supports them.'" ( Breslin, at p. 1416 . )

Applying these principles, we conclude the trial court did not abuse its discretion in denying Fudge's motion to withdraw the plea. At the April 2020 hearing, Fudge repeatedly - and adamantly - asked to enter a plea. The court gave Fudge more than an hour to discuss the plea offer with defense counsel, after which she indicated she was "ready" to accept the offer against the advice of her attorney. The court told Fudge the charge was a strike offense, and it advised Fudge of the maximum punishment for that offense and the enhanced punishment she would receive if convicted of additional felonies. It also meticulously reviewed the rights Fudge would relinquish by entering a plea. Fudge indicated she understood the consequences of the plea and the rights she was waiving. On this record, there is no evidence Fudge

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was ignorant of her rights or the consequences of her plea. ( People v. Huricks (1995) 32 Cal.App.4th 1201, 1210.)

Fudge contends several "coercive" circumstances - including her fear of being incarcerated during the pandemic and her concerns for her grandmother's health - overcame her exercise of free judgment. We disagree. These circumstances, whether taken individually or collectively, do not amount to clear and convincing evidence of coercion. ( People v. Huricks , supra , 32 Cal.App.4th at p. 1208 [defendant's anxiety about the charges and his "fear that he would be personally harmed" in custody did not establish his "free will was overcome in entering the plea"].) Nor are we persuaded that Fudge's traumatic childhood, and her "compromised" mental and emotional state at the hearing, constituted clear and convincing evidence of duress. The psychologist's opinion that Fudge "was so distraught that she was not thinking logically or linearly" was at odds with what the trial judge - who presided over the plea hearing - recalled about Fudge's conduct and demeanor. ( People v. Ravaux , supra , 142 Cal.App.4th at p. 918.) The court was entitled to rely on its own observations of Fudge, and its conclusion that Fudge was not under duress when she entered the plea is supported by substantial evidence. ( Ibid .)

This case bears no resemblance to People v. Sandoval (2006) 140 Cal.App.4th 111. There, "abundant evidence" - including a codefendant's threat of physical violence, a short deadline for the defendant to accept the plea offer, and the bench officer's involvement in the plea negotiations - supported a finding that the defendant's "guilty plea was the product of coercion." ( Id. at p. 127.) None of these circumstances is present here. The trial court's observation that the prosecution's offer was consistent with offers made in other cases cannot reasonably be construed as improper judicial

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participation in the plea negotiations. (Cf. People v. Weaver (2004) 118 Cal.App.4th 131, 150 [trial court thrust itself into "the center of the negotiation process" and made repeated comments suggesting a "less-than-neutral attitude about the case or the defendant"].)

In sum, the trial court acted well within its discretion in concluding Fudge "failed to meet her burden by clear and convincing evidence to show that she entered her guilty plea under mistake, ignorance, or any other factor overcoming her exercise of free judgment." ( Breslin , supra , 205 Cal.App.4th at p. 1418.)

III.

Finally, Fudge contends defense counsel rendered ineffective assistance by failing to request mental health diversion pursuant to section 1001.36. That statute authorizes a trial court to grant pretrial mental health diversion if it finds the defendant is eligible because, among other factors, the defendant suffers from a qualifying mental disorder, the disorder played a significant role in the commission of the charged offense, and the defendant's symptoms will respond to mental health treatment. (§ 1001.36, subd. (b)(1)(A)-(F); People v. Gerson (2022) 80 Cal.App.5th 1067, 1078-1079.) The maximum period of diversion is two years; if the defendant performs

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satisfactorily, the court must dismiss the charges that were the subject of the proceeding at the time of the diversion. (§ 1001.36 subds. (c)(3), (e).)

To establish ineffective assistance, a defendant must show "counsel's performance '"' "fell below an objective standard of reasonableness . . . under prevailing professional norms." '" '" ( People v. Mickel , supra , 2 Cal.5th at p. 198 . ) We presume "counsel's actions fall within the broad range of reasonableness, and afford 'great deference to counsel's tactical decisions.'" ( Ibid. ) A defendant's burden to establish ineffective assistance is" 'difficult to carry on direct appeal,' as [we] will reverse . . . based on ineffective assistance of counsel on direct appeal only if there is affirmative evidence that counsel had '" 'no rational tactical purpose'"' for an action or omission." ( Ibid. ) In addition to establishing deficient performance, the defendant must show resulting prejudice, i.e., "but for counsel's deficient performance, the outcome of the proceeding would have been different." ( Ibid. )

Fudge's ineffective assistance of counsel claim fails because she has not demonstrated defense counsel's performance was deficient. ( People v. Mickel , supra , 2 Cal.5th at p. 200.) Fudge posits that she "appears to be a good candidate" for mental health diversion, but she fails to show defense counsel had" 'no rational tactical purpose'" for failing to request diversion. ( Ibid. ) And Fudge appears to concede the record sheds no light on why counsel failed

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to raise the issue. There may have been legitimate reasons why defense counsel did not pursue mental health diversion - counsel may have concluded Fudge's mental disorder did not play a significant role in the commission of the robbery, or Fudge may have refused to consent to diversion. Given these potentially valid reasons why defense counsel might not have raised the issue of diversion, we cannot conclude - on this silent record - that defense counsel was ineffective. ( Ibid. ; People v. Banner (2022) 77 Cal.App.5th 226, 238-239 [rejecting ineffective assistance of counsel claim premised on counsel's failure to request mental health diversion].)

In sum, Fudge has not satisfied her burden to establish ineffective assistance of counsel.

DISPOSITION

The judgment is affirmed.

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WE CONCUR: Fujisaki, Acting P. J., Petrou, J.