P. v. Houk

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Filed 4/12/07 P. v. Houk CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
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THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLES ADAM HOUK,
Defendant and Appellant.
C052937
(Super. Ct. No.
CM024233)
Defendant Charles Adam Houk pled no contest to first degree
murder (Pen. Code, § 187), and guilty to attempted murder (Pen.
Code, §§ 187, 664) and admitted to personal discharge of a
firearm for the murder count (Pen. Code, § 12022.53, subd.
(c)(2)). The trial court sentenced him to 59 years to life.
On appeal, defendant contends the trial court should have
allowed him to withdraw his plea and that his upper term
sentence for attempted murder violates Blakely v. Washington

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(2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). We affirm the
judgment.
BACKGROUND
The facts of defendant’s crimes are not relevant to his
appeal, and are briefly summarized from the probation report.
On the night of September 14-15, 2005, defendant, who was a
passenger in a vehicle driven by Joseph Snow, shot Snow in the
head several times, killing him. Defendant pulled Snow out of
the vehicle and left him at an intersection in Oroville. He
eventually admitted to the police that he killed Snow.
On another occasion, defendant and codefendant attacked
another man, hitting him in the head several times with a
baseball bat and shoving his head into a wall. Defendant also
urged codefendant to stab the victim with a knife.
DISCUSSION
I
Defendant contends the trial court should have allowed him
to withdraw his pleas of no contest and guilty.
Defendant initialed and signed a change of plea form.
Under the terms of the bargain, defendant would plead guilty to
first degree murder and attempted murder in exchange for the
prosecution dismissing the remaining charges, special
allegations, and enhancements, subject to a Harvey1 waiver.
1 People v. Harvey (1979) 25 Cal.3d 754, 758.

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Defendant initialed a statement that the plea was not induced by
any promises or representations other than the dismissal of the
remaining charges, allegations, and enhancements.
At the plea colloquy, defendant admitted to discussing the
facts and circumstances of the case with his attorney. He
admitted going over the plea form, initialing it, and signing
the form. When asked if he had enough time to talk to his
lawyer, defendant replied: “Yes I did. I understand that,
regardless of what I plead, in the end I am going to do life
anyways; so I am willing to go ahead, accept this deal that I
was offered.”
Defendant subsequently moved to withdraw his plea. At the
hearing on the change of plea motion, defendant’s ex-wife, her
father, and stepmother all testified that the ex-wife told
defendant’s attorney to go to trial and reject the prosecution’s
offer.
Defendant testified that on the day of his plea, counsel
told him of the prosecution’s offer, and defendant replied that
he wanted to go to trial because he was not guilty. Counsel
then told defendant he could get the death penalty if he went to
trial. Just before counsel told him of the possible death
sentence, he told defendant that his ex-wife wanted him to take
the deal and plead guilty.
According to defendant, plea negotiations started early in
the morning, and throughout the day defendant repeatedly told

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counsel he wanted to take the case to trial. However, in the
afternoon counsel told defendant that his family wanted him to
take the deal and if he did not, defendant could get the death
penalty.
Defendant testified that his family’s concern about him
getting the death penalty was one factor behind his decision to
accept the prosecution’s offer. Defendant also believed he
should plead guilty because the public defender’s office was
representing the prosecution rather than his own interests.
Stephen King, defendant’s counsel during the plea
negotiations,2 also testified. He acknowledged receiving an
offer letter from the district attorney3 and discussing it with
defendant. King and defendant probably discussed the offer
twice before the day defendant accepted it.
King never told defendant the prosecution would seek the
death penalty if the prosecution’s offer was rejected. He did
explain to defendant that the death penalty was an option, as
the prosecution could dismiss the case and refile the charges,
2 Citing a conflict of interest, King withdrew from
representing defendant after the plea but before the motion to
set aside the plea. The trial court determined the conflict had
no bearing on the effective assistance of counsel, and defendant
does not challenge this ruling.
3 This was the offer that defendant eventually accepted,
pleading guilty to first degree murder with a personal use of a
firearm enhancement and attempted murder, with a potential
sentence of 59 years to life.

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but that the prosecutor told him his office would not seek the
death penalty in this case. King did not believe there was a
threat of the case being refiled with capital charges, but he
felt it was his duty to explain all of the possibilities to
defendant.
King testified to discussing the benefits of pleading
guilty with defendant and his ex-wife, namely that the
codefendant, the ex-wife’s son and defendant’s stepson, would
see defendant “standing up and being responsible for his acts.”
In King’s initial discussions with defendant’s ex-wife and her
family on the day of the plea, he got the impression they
thought the deal would be good for the codefendant. By the
afternoon, King spoke more with defendant’s ex-wife, and told
defendant “that his family either did not want him to take the
deal, or they didn’t like the deal, something to that effect;
and this went back--there were numerous trips back and forth,
and this went on for quite some time, and the discussions
between [sic] Mr. Houk, [the prosecutor] and the family, at
least on one or two occasions.”
King promised defendant’s ex-wife that he would not let
defendant plead guilty unless he was convinced that the facts,
the proof, and defendant’s desire to plead guilty were all true.
Counsel also told her that he would not let defendant plead
guilty unless he thought the plea was an intelligent and

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informed decision. (RT 47) King thought defendant’s plea was
knowing, intelligent, and voluntary.
Defendant contends the evidence supports a finding that
defendant was misled by counsel and he therefore did not
understand what he was doing when he made his plea. The
contention is not supported by the record.
Upon a showing of good cause based on clear and convincing
evidence, a court may permit a defendant to withdraw his guilty
plea before judgment has been entered. (Pen. Code, § 1018.)
“To establish good cause, it must be shown that defendant was
operating under mistake, ignorance, or any other factor
overcoming the exercise of his free judgment. [Citations.]
Other factors overcoming defendant’s free judgment include
inadvertence, fraud or duress. [Citations.]” (People v.
Huricks (1995) 32 Cal.App.4th 1201, 1208.) “‘[A] plea may not
be withdrawn simply because the defendant has changed his mind.’
[Citation].” (Ibid.)
The court’s determination whether to permit a defendant to
withdraw a guilty plea is discretionary, and its ruling will not
be disturbed on appeal absent a showing of abuse of discretion.
(People v. Mickens (1995) 38 Cal.App.4th 1557, 1561.) An abuse
of discretion occurs when the court “exercises discretion in an
arbitrary, capricious or patently absurd manner resulting in a
manifest miscarriage of justice. [Citation.]” (People v. Shaw
(1998) 64 Cal.App.4th 492, 496.) “[A] reviewing court must

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adopt the trial court’s factual findings if substantial evidence
supports them.” (People v. Fairbank (1997) 16 Cal.4th 1223,
1254.)
In denying defendant’s motion to withdraw the plea, the
trial court found “no over-reaching, no deception, no failure to
communicate information to [defendant] by Mr. King. There is no
undue pressure. There is no coercion.” Defendant’s claim
revolves around a conflict between the testimony of defendant
and King. The trial court resolved the conflict in favor of
King, and nothing in the record supports our second-guessing the
trial court’s finding that counsel was more credible than the
client.
II
Citing Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403],
defendant contends he was entitled to a jury trial on
aggravating factors used by the court to impose the upper term
sentence for attempted murder. Although the trial court
erroneously relied on factors not found by a jury, we find the
error to be harmless beyond a reasonable doubt.
In Blakely, the United States Supreme Court reiterated its
holding in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147
L.Ed.2d 435, 455] (Apprendi) that, “‘[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.’” (Blakely,

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supra, 542 U.S. at p. 301 [159 L. Ed. 2d at p. 412].) The
statutory maximum is the greatest sentence the court can impose
based on facts reflected in the jury’s verdict or admitted by
the defendant. (Id. at p. 303 [159 L.Ed.2d at p. 413].)
The contention that the procedure for determining upper
term sentences violates the rule of Apprendi and Blakely was
rejected by the California Supreme Court in People v. Black
(2005) 35 Cal.4th 1238, 1244. However, Black’s holding that the
judicial factfinding necessary to impose an upper term does not
violate Blakely was recently overruled by the United States
Supreme Court. (Cunningham v. California (2007) 549 U.S. ___,
___ [166 L.Ed.2d 856, 864] (Cunningham).)
Neither Cunningham, Blakely, nor Apprendi prevent the
imposition of an upper term sentence under all circumstances.
The rule of Blakely does not apply to the use of prior
convictions to increase the penalty for a crime. (Apprendi,
supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455; Cunningham,
supra, 549 U.S. at p. __ [166 L.Ed.2d at p. 869].) One valid
aggravating factor is sufficient to expose defendant to the
upper term. (People v. Cruz (1995) 38 Cal.App.4th 427, 433.)
The trial court relied on a valid aggravating factor when
sentencing defendant. In imposing the upper term for attempted
murder, the trial court relied on several factors, including
defendant’s “numerous” prior convictions. We are satisfied
beyond a reasonable doubt that the trial court would have

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imposed the upper term based on this factor alone. Therefore,
any error in considering the facts that defendant had engaged in
violent conduct, has a history of violence, and is a dangerous
person was harmless. (See Washington v. Recuenco (2006) 548
U.S. ___, ___ [165 L.Ed.2d 466, 473, 476-477].)
DISPOSITION
The judgment is affirmed.
CANTIL-SAKAUYE , J.
We concur:
BLEASE , Acting P.J.
RAYE , J.

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