P. v. Beswetherick

Filed 12/20/06 P. v. Beswetherick CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
MARK DOUGLAS BESWETHERICK,
Defendant and Appellant.
H029404
(Santa Clara County
Super.Ct.No. CC320853)
Appellant pleaded no contest to attempted murder with a firearm enhancement,
assault with a firearm, and exhibiting a weapon at a peace officer. (Pen. Code,
§§ 664/187, 12022.5, subd. (a), 1203.06, 245, subd. (a)(2), 417.8.) Seven months later,
through new counsel, he filed a motion to withdraw his plea. The trial court denied the
motion and sentenced appellant to 21 years in state prison. Appellant contends that "the
conditions under which he pleaded rendered his plea unconstitutional on several
grounds." We affirm.
Background
Around midnight on July 11, 2003, appellant bought beer at a 7-11 market and
remained in the store. The store clerk asked appellant to leave. Appellant refused at first
but eventually left. Appellant returned and asked the clerk whether he was still upset
about appellant not leaving earlier. The clerk asked appellant to leave. Appellant pulled

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out a handgun, pointed it at the clerk, and said "I'll kill you." Appellant tried to pull the
trigger but the gun failed to fire. The clerk jumped over the counter and fled yelling for
help. A witness with the clerk saw appellant raise the gun towards them and cock it back
with his right hand. The police arrived and met with the clerk. Appellant walked out of
the store with the gun in his hand. The officer told him to put the gun down. Appellant
said, "No, just shoot me" and pointed the gun at the officer. Appellant suffered gunshot
wounds and was taken for medical treatment. His blood alcohol level was .24 percent.
On July 23, 2003, appellant was charged by complaint with one count of
attempted murder of the clerk with an enhancing allegation for the personal use of a
handgun, one count of assault with a firearm, and one count of exhibiting a firearm at a
peace officer. Appellant's family arranged for him to be represented by Phil Pennypacker
who retained Dr. Leonard Donk, a forensic psychologist, to review the police reports and
medical records and interview appellant. Following surgery for his gunshot wounds,
appellant was placed in a medically induced coma for weeks. Later, as appellant was
recovering from his gunshot wounds in the jail infirmary, Pennypacker met with him.
On September 4, 2003, Pennypacker appeared with appellant for a bail reduction
motion. In court, the prosecutor, Dana Overstreet, played a videotape of the events at the
7-11. Appellant watched as much of the video as he could. Later, appellant said that his
view of the tape had been partially obstructed. Overstreet told Pennypacker that if the
motion went forward she would file new charges, including three counts of attempted
premeditated murder. After consulting with appellant, Pennypacker withdrew the bail
reduction motion.
Appellant was arraigned on October 21, 2003, and shortly thereafter Pennypacker
was appointed to the superior court. At Pennypacker's suggestion, Tony Christensen
became involved with appellant's case. Christensen had been handling criminal cases
since 1972 and had handled "mental defenses, capacity questions, insanity questions,
[and] a number of mental health issues through the years."

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Around this time, the jail medical staff provided appellant with Neurontin and
Depakote for bipolarism and anxiety and Prozac for depression. He was also taking
Vicodin for pain. Years earlier appellant had been diagnosed with bipolar disorder and
had been prescribed medication but was non-compliant with this treatment. This time
appellant felt that his anti-anxiety medication was not working and had it discontinued.
Appellant told Christensen that he had no memory of the events at the 7-11 or the
hours leading up to them. In late October, Christensen met with appellant twice, gave
him copies of the police reports, and talked to him about the videotape of the incident.
On November 4, 2003, Christensen made a special appearance with appellant
while appellant's family finalized the arrangements to retain Christensen.1 Christensen
continued to discuss the case with appellant and with the district attorney. The district
attorney told Christensen that the best offer she would consider for settlement would be
for appellant to plead to the complaint and receive the maximum sentence of 21 years.
Christensen knew that if a settlement was not reached, the prosecutor planned to pursue a
grand jury indictment for multiple counts of attempted premeditated murder, which
would expose appellant to multiple life terms if convicted.
On November 4, 2003 or, at the latest, November 7, Christensen talked to
appellant about the prosecutor's position on the case. By then, Christensen had watched
the videotape. He reviewed appellant's "gait, walkability, [and] his actions." He "wanted
to see if there was any evidence that [he] could determine of delusions, of hallucinations,
of any manifestations of that sort." He had listened to the audiotapes of the victim's
statements, and read reports from the police, the defense investigator, and the laboratory.2
1 Appellant made one appearance without counsel during the transition in
representation. At that appearance, the prosecutor told appellant to have his counsel call
her as soon as possible.
2 Particularly concerned about the premeditation issue, Christensen assessed the
evidence this way: "Mark entered that store . . . . And during the conversation with the
clerk there was some talk about hiccups. Ultimately the clerk got upset, the clerk found

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Christensen also discussed the case with Dr. Donk and with a psychiatrist who had
previously treated appellant for bipolarism.
Christensen discussed with appellant what he saw as mitigating circumstances in
the case. Appellant was a 48-year-old software engineer with Hewlett Packard.
Appellant's only criminal conviction was for driving under the influence in 1994.
Appellant suffered from mental illness and was intoxicated at the time of the crime. The
safety was on the gun and the gun did not discharge. Christensen met with the prosecutor
on November 13 but the offer remained the same. Christensen conveyed this offer to
appellant. He also told appellant that he should decide what he wanted to do by the next
day because the prosecutor would then set the matter for a change of plea on Monday,
November 17, 2003. The grand jury was scheduled to convene on November 18.
Christensen explained to appellant that he could choose to accept the offer, which was to
plead to the complaint as charged for a 21-year sentence, or to decline the offer, in which
case the prosecutor would present the case to the grand jury and seek an indictment for
multiple counts of premeditated attempted murder which could lead to multiple life
terms. Appellant thought this offer was "very unfair and very unreasonable." Appellant
Mark to be a nuisance and told Mark to leave. Mark got angry, started swearing and
looked at the clerk and said, I'll kill you, you motherfucker. That's what Mark said before
he left the store. About an hour and 45 minutes later after going and obtaining a gun and
driving back to the store, having the wherewithal to do both of those, came back into the
store, looked at the clerk and said, are you still mad at me? The clerk said, no. Mark
then within a matter of seconds draws down with both hands on the clerk, who's
cowering behind the counter, point blank at his forehead and pulls the trigger three times,
according to the clerk. Mark then raises back up, walks over a distance for a few
seconds, comes back and draws back down point blank within a manner of inches, pulls
the trigger once again, and then walks around the counter and draws down on the clerk,
according to what the clerk said in the police report, and the clerk then jumps over the
counter and runs out of the store. [¶] In the meantime Mark had banged the gun on the
counter, according to the clerk, as if the gun was jammed. And not only that, three shells
are ejected in the store. Mark did not bring an unloaded gun into that store. He brought a
loaded gun into that store and the video captures the two drawdowns point blank."

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asked Christensen about the defense of diminished capacity and Christensen explained
that that was "no longer a viable defense in California." According to appellant,
Christensen did not discuss diminished actuality with him.
The next day, Christensen returned to the jail to talk to appellant. Appellant later
said that he felt that his decision-making ability was compromised by the combination of
the stress of making such an important decision, the process of recovering from his
injuries, and his medication. Appellant considered that there was longevity in his family
and that, if he accepted the offer, that he could serve the sentence and then "have another
10 or 15 years outside after that." He determined, "That's an acceptable result. It's
certainly a lot better than life in prison." Appellant told Christensen that he would accept
the offer.
On November 17, 2003, appellant appeared with Christensen who made his first
general appearance and announced that the matter was ready for disposition. Christensen
made a long statement to the court about the case. He said that he had "been involved in
a very intense way with Mr. Beswetherick's case for the last three and a half weeks." He
said, "I've reviewed each and every element with him, all possible defenses . . . ." The
court conducted the plea voir dire, confirming that although appellant had consumed
prescription medication neither appellant nor Christensen believed that this altered
appellant's ability to understand the proceedings. Appellant confirmed that he had had
the opportunity to fully discuss the case with Christensen, including possible defenses
and the elements of the charges. Appellant pleaded no contest to the charges in the
complaint.3
According to appellant, "A week [after his plea] when things had had a chance to
sink in" he "realized" that this long prison term would be "awful." In January 2004, an
3 The following day, appellant testified before the grand jury which was
investigating officer shootings.

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attorney who had been contacted by appellant's family met with Christensen to discuss
"the circumstances of the entry of the plea and the situation." That attorney "concluded
there was nothing more that he felt he could do or would do." In February 2004, attorney
Robert Lyons contacted Christensen. Appellant retained this new counsel and, on
July 21, 2004, Lyons and Cindy Diamond substituted in for Christensen as appellant's
counsel.4 On July 30, 2004, Lyons filed a motion to withdraw appellant's no contest plea
contending that appellant's medications "prevented him from being able to knowingly and
intelligently make such an important decision in his case" and that appellant was denied
due process and effective assistance of counsel because Christensen "could not
adequately assess the case and possible defenses in a short period of time, and a threat by
a prosecutor of new charges if a plea was not entered swiftly."
The hearing on appellant's motion to withdraw his plea took place October 15 and
December 3, 2004, and April 15 and May 20, 2005, and the transcript of the hearing is
well over 400 pages long. Christensen, appellant, Dr. Donk, Overstreet, and the
psychiatrist who had treated appellant before his arrest all testified. Dr. Donk testified
that after interviewing appellant for almost 20 hours and reviewing other materials, he
concluded that appellant suffered from alcoholism and bipolar disease. A psychiatrist
who had reviewed appellant's jail medical records testified that he thought that appellant
may have been under-medicated for his bipolarism. The tendency to be impulsive is a
symptom of an under-medicated bipolar patient.
On August 4, 2005, the trial court issued a four-page ruling and order denying
appellant's motion to withdraw his plea. The court rejected appellant's arguments about
the prosecutor's conduct and duress observing, "Being a defendant in a criminal matter is
a very stressful position." The court rejected appellant's argument concerning his
physical and mental ability to enter the plea. The court said, "The Court finds that the
4 Lyons and Diamond continue to represent appellant in this court.

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defendant at the time he entered his plea was in full possession of his mental faculties.
The defendant was bright, alert, responsive, and even testified that he considered the offer
and knew his plea would avoid the possibility of a life sentence by entering an early
plea. . . . The Court's personal observations of the defendant at the plea hearing clearly
indicated the defendant was fully aware of the consequences of his plea. Again the
defendant's own testimony clearly establishes to this Court that his mental and physical
state was at the time of his plea did not interfere with his decision to enter a plea. [¶]
The Court rejects defendant's argument that he was unable to make a waiver of his right
to have a trial and enter a plea based on his physical or mental condition." The court
rejected appellant's argument concerning Christensen's competence, saying, "This clearly
is the defendant's weakest argument." The trial court sentenced appellant to nine years
for attempted murder, 10 years for the gun enhancement, and one year each, consecutive,
for the remaining charges for a total term of 21 years in prison.
Discussion
Penal Code section 1018 allows a trial court to grant a defendant's application to
withdraw his or her plea of guilty or no contest before judgment. Good cause must be
shown for such a withdrawal, based on clear and convincing evidence. (People v. Cruz
(1974) 12 Cal.3d 562, 566.)
" 'When a defendant is represented by counsel, the grant or denial of an application
to withdraw a plea is purely within the discretion of the trial court after consideration of
all factors necessary to bring about a just result. [Citations.] . . .' 'Guilty pleas resulting
from a bargain should not be set aside lightly and finality of proceedings should be
encouraged.' [Citation.]" (People v. Weaver (2004) 118 Cal.App.4th 131, 146.) In
determining facts,"the trial court is not bound by uncontradicted statements of the
defendant." (People v. Hunt (1985) 174 Cal.App.3d 95, 103.) The requisite "good
cause" must comprise more than post-plea remorse: "To establish good cause, it must be
shown that defendant was operating under mistake, ignorance, or any other factor

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overcoming the exercise of his free judgment. [Citations.] Other factors overcoming
defendant's free judgment include inadvertence, fraud or duress. [Citations.] However,
'[a] plea may not be withdrawn simply because the defendant has changed his mind.'
[Citation.]" (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) Once the trial court
has made a good cause determination on the issue whether to permit withdrawal of a plea,
a reviewing court will not disturb the decision unless abuse of discretion is clearly shown.
(People v. Fairbank, supra, 16 Cal.4th at p. 1254.) Moreover, a reviewing court must
defer to the trial court's factual findings if substantial evidence supports them. (Ibid.)
Appellant sweeps past this body of law concerning the withdrawal of pleas,
declining even to cite to Penal Code section 1018 or the standard of review on appeal
from the denial of a motion brought under it. Appellant contends that he "was not able to
make a free and voluntary decision about whether or not to accept the deal, at the time he
changed his pleas to nolo contendere; therefore his pleas were not free and voluntary and
thus were unconstitutional." The voluntariness of a plea is a question of law reviewed de
novo. (Marshall v. Lonberger (1983) 459 U.S. 422, 431; People v. Vargas (1993) 13
Cal.App.4th 1653, 1660.)
Appellant argues that at the time he entered his plea he was having a "mild manic
episode, which rendered his plea involuntary as a matter of law." The trial court, having
observed appellant at both the time of the plea and during the motion to withdraw the
plea, found that "[appellant's] mental and physical state . . . at the time of his plea did not
interfere with his decision to enter a plea." The judge's observations of a defendant at the
time of the change of plea can be part of the substantial evidence supporting the
conclusion that a defendant's plea change was voluntary. (People v. Fairbank, supra, 16
Cal.4th 1223, 1254.) Christensen, privy to far more extensive discussions of the case and
having greater opportunity to evaluate appellant's mental state than the trial court did,
was likewise certain that appellant's decision to plead no contest was free and voluntary.
Nothing in the testimony of the doctors at the hearing would indicate that appellant's plea

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was involuntary as a matter of law. Appellant may have been anxious, but that is
appropriate for someone deciding to enter a plea to 21 years in prison.
Appellant contends, "Due to counsel's inadequate factual and legal research and
ineffective representation, appellant was uninformed about the details of his case and his
pleas were therefore not knowing and intelligent, and were thus unconstitutional." These
bold and unsupportable accusations about the adequacy of trial counsel's representation
do not persuade us that appellant's plea was not knowing and intelligent. Perhaps
acknowledging the exceedingly high esteem the trial court obviously held for
Christensen, appellant argues, "counsel's omissions are still a deprivation of appellant's
rights when, as is likely here, they were the result of a hard working honest lawyer who
was prevented from effectively representing his client through governmental
interference."
Appellant focuses on the limited time he had to make a decision to plead to the
charges in the complaint or face more serious charges. This is the situation in almost
every case in which the prosecutor makes an offer. If anything, appellant had more time
to confer with his attorney and more time to consider the offer than is usually the case.
Appellant asserts, "A video tape of the assault on the 7-11 clerk was played in
court at appellant's bail hearing, when appellant was in court and presumably could see it,
but he watched [it] from a wheelchair at a strange angle and did not have an opportunity
to review the video in private while discussing it with his first attorney." Appellant
complains that counsel "did not know that appellant was holding the gun in his hand
which could not fire the gun properly, thus he could not inform appellant there was direct
evidentiary support to the argument that appellant did not have an intent to kill."
Appellant discussed the video with Christensen and had seen at least some of it. Very
often the most favorable offers are made early on in the proceedings, sometimes before
there has been time for any defense investigation at all. A criminal defendant does not

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have to have seen every piece of evidence against him in order to make a voluntary,
knowing, and intelligent decision to enter a plea.
Appellant argues that counsel "had not researched the law and had not thus
determined that the actual mental state of a mentally ill or intoxicated person could be
raised as a defense to a specific intent crime." Appellant's testimony concerning his
discussions with Christensen of available defenses is, at best, cagey. There is simply no
support in the record for the assertion that Christensen was unaware of what mental
defenses could be raised when a specific intent crime is charged.
Appellant contends, "The cumulative effect of the time pressure imposed by the
district attorney, and appellant's under-medicated mental illness, was to compound the
constitutional errors affecting the plea proceedings." We find no errors in the plea
proceedings to cumulate.
Appellant contends, "The sentence must be reversed because imposition of the
aggravated term without a waiver violated appellant's Sixth Amendment right to a jury
trial and his Fourth Amendment right to due process of law." Appellant acknowledges
that the Supreme Court rejected this claim in People v. Black (2005) 35 Cal.4th 1238, but
"makes this argument to preserve it for federal court review." We are bound to follow
Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

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Disposition
The judgment is affirmed.
______________________________
ELIA, J.
WE CONCUR:
_____________________________
RUSHING, P. J.
_____________________________
PREMO, J.

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