Filed 10/20/17 P. v. Craig CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Otis Sterling III, Judge. Affirmed.

Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant and appellant John Taylor Craig III was charged by amended information with criminal threats (Pen. Code,[1] § 422, count 1), and misdemeanor brandishing an imitation firearm (§ 417.4, count 2). The amended information further alleged that defendant personally inflicted great bodily injury in the commission of count 1. (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8).) The information was orally amended to add a new count of misdemeanor battery. (§ 242, count 3.) Pursuant to a plea agreement, defendant pled guilty to counts 2 and 3. The trial court dismissed count 1 and the section 12022.7 allegation on motion by the People. The court placed defendant on probation for a period of 36 months, under specified conditions.

Defendant filed a notice of appeal challenging the trial court’s denial of a motion to withdraw his plea. We affirm.

PROCEDURAL BACKGROUND

On December 14, 2015, defendant was charged by amended information with criminal threats (§ 422, count 1) and misdemeanor brandishing an imitation firearm (§ 417.4, count 2).

On January 28, 2016, the information was orally amended to add one count of misdemeanor battery. (§ 242, count 3.) Defendant signed a misdemeanor plea form that advised him of his rights to a speedy and public trial, to cross-examination of adverse witnesses, to compel witnesses and present evidence, to be represented by counsel, to have a court reporter at all proceedings, and the right against self-incrimination. Defendant initialed the boxes acknowledging these rights. The plea form also listed the consequences of his plea. Defendant initialed the boxes acknowledging these consequences. Defendant also initialed the boxes stating that no one had made any threats to him or placed any pressure on him to make him plead guilty, that he understood that if he violated any of his probation terms he could be sentenced to the maximum custody term possible under his charges, that he waived any right to appeal, and that he agreed there was a factual basis for the plea. The plea agreement further stated that he was pleading guilty to counts 2 and 3 in exchange for three years of summary probation, and that he would do 120 hours of community service and be given credit for one day of custody. Defendant, his attorney, and the prosecutor signed the plea agreement.

At the hearing on January 28, 2016, the prosecutor recited the terms of the plea agreement, and defense counsel concurred with the recitation. The court asked defendant if he agreed to plead guilty, and defendant said, “Yes, sir.” The court then asked him if he had had enough time to talk to his attorney, and he answered, no. So, the court said it would call the matter later, when he was ready to go forward. After the court heard unrelated matters, defense counsel stated they were ready, and the court recalled the matter. The court informed defendant that it was the court’s job to make sure the plea was a free, voluntary, and knowing waiver of his rights and entry of a plea. The court stated that it did not want anybody forcing defendant into anything, and then it confirmed with him that he signed the plea agreement and that he agreed to plead guilty to counts 2 and 3. The court accepted the plea and placed defendant on probation, under the specified terms. The People moved to dismiss count 1 and the personal infliction of great bodily injury allegation.

Defendant was appointed a conflicts panel attorney to represent him, and he subsequently requested a Marsden[2] hearing. The court held a hearing on October 5, 2016. Defendant said he wanted to file a motion to withdraw his plea, but he believed his counsel would not go forward with it. The court questioned defense counsel, who said the basis of defendant’s motion was he felt he did not receive competent representation; however, counsel disagreed. The court discussed the matter with counsel, and counsel then agreed that he was capable of putting forth whatever issues and facts defendant wanted him to. Thus, he said he would prepare the motion to withdraw the plea. The court then addressed defendant, who asked what judge would hear the motion. Defendant also stated that he had not committed any crime and that he had no mens rea to commit the offenses he was accused of. The court explained that mens rea was irrelevant to a motion to withdraw his plea. The court denied the Marsden motion and stated that defense counsel would remain defendant’s attorney and file the motion to withdraw.

At a hearing on August 29, 2016, the court was informed that defendant’s probation was revoked for failure to do his community service. The court appointed counsel to represent defendant on his violation of probation.

On October 25, 2016, defendant filed a motion to withdraw his plea, arguing that he was pressured into entering a guilty plea. He asserted that he stated in open court that he had not had sufficient time to discuss the matter with his attorney, “[y]et this issue was never revisited prior to the ultimate entry of his plea.”

The prosecutor filed an opposition to the motion, arguing that defendant’s motion was untimely, since it was filed nearly nine months after his guilty plea. The prosecutor further argued that defendant had failed to demonstrate his plea was not knowing, intelligent, and voluntary.

The court held a hearing on November 9, 2016. The prosecutor pointed out that defendant had the benefit of being on probation, and he did not file a motion to withdraw his plea until after the probation department filed a motion for violation of probation. The point was well taken by the court. Then, defendant testified on his own behalf. When asked why he waited so long to file his motion, he said he went back to school and took a course in criminal justice and realized he needed to file it. He further stated he realized that “proof of innocence [was] probably the strongest reason for withdrawing the guilty plea.” The court denied the motion because it was filed over six months after defendant was placed on probation and because there was no basis for withdrawing the plea. The court stated that defendant’s biggest reason for wanting to withdraw his plea was his belief that he was innocent; however, that was not a legal basis for allowing him to withdraw his plea.

DISCUSSION

Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and several potential arguable issues: (1) whether defendant’s motion to withdraw his plea was untimely; (2) whether the trial court abused its discretion in finding that defendant had not established good cause to excuse his delay; (3) whether defendant established good cause to withdraw his plea; (4) whether the trial court should have granted the Marsden motion; and (5) whether defense counsel failed to assert the grounds for withdrawing the plea that he represented he would at the Marsden hearing. Counsel has also requested this court to undertake a review of the entire record.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

FIELDS

J.