Filed 7/19/17 P. v. Hinesley 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Yuba)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

KENNETH LEE HINESLEY,

Defendant and Appellant.
C083494

(Super. Ct. No. CRF150000401)




Defendant Kenneth Lee Hinesley pled no contest, pursuant to West, to one count of lewd or lascivious acts on a child under 14. Following his plea, he moved unsuccessfully to withdraw his plea. Later, after obtaining new counsel, he again moved unsuccessfully to withdraw his plea. On appeal, defendant contends the trial court abused its discretion in denying both motions. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
As part of his plea, defendant signed a plea form stating he would plead to one count for no state prison at the outset and, per the agreement, he would undergo a Penal Code section 288.1 psychiatric evaluation. The form explained, “With a positive [section] 288.1 evaluation, he would be eligible for a grant of probation. If the court rejects the plea, he will be returned to a not-guilty status.”
In taking the plea, the trial court confirmed defendant had had enough time to talk with his attorney and had no more questions. The court asked if he was taking medications. Defendant replied he was and specified, “Metformin, gemfibrozil, lisinopril,” confirming he was taking them on doctor’s orders. The court asked if he was “perfectly capable of understanding” everything his attorney and the court told him. Defendant said he was.
The court told defendant he would be pleading to a strike. Defendant responded: “This is a strike?” His counsel confirmed it was.
The court admonished defendant, “You will be required to register as a sex offender for the rest of your life. [¶] Do you understand this?” Defendant replied, “I was not understanding that.” His counsel asked for a moment and thereafter said, “We are ready to proceed. . . .” Defendant acknowledged he understood.
Defendant then pled no contest, pursuant to West, to one count of lewd or lascivious acts on a child under 14. As per the agreement, the court struck a substantial sexual conduct allegation in order to make defendant probation eligible.
 
The trial court found defendant had made “a knowing, intelligent waiver of rights.” It directed him to comply with the section 288.1 report requirement and released him on his own recognizance.
I
The First Motion To Withdraw The Plea
Three months later, defendant moved to withdraw his plea. His counsel argued defendant would be required to undergo sex offender treatment and he could not do so successfully because participants must offer admissions, which defendant is unwilling to do. Counsel added, because defendant had received an unfavorable section 288.1 report (describing him as a poor candidate for treatment and not amenable to rehabilitation), probation seemed unrealistic.
The trial court asked if it could grant probation based on the report’s finding that defendant was not a sexual predator. The prosecution confirmed it could.
On defendant’s prompting, defense counsel added that when defendant pled, he was suffering from a variety of physical ailments and was not receiving proper treatment in jail. He was in “considerable physical discomfort and under a lot of distress.”
The court denied the motion, noting it had asked defendant about medications and if he could comprehend everything. Defendant said he could. The court added, “I imagine someone looking at 16 years’ state prison is anxious whenever they show up in court.”
The court went on, “We can deal with the complexities of putting somebody on felony probation who denies [the] activity that places him on felony probation. It’s not a wholly unheard-of circumstance.” It then made an unusual case finding and granted probation.
 
II
The Second Motion To Withdraw The Plea
A month later, defendant retained new counsel. His new counsel moved to continue sentencing to bring a new motion to withdraw the plea. The court “reluctantly” acceded. But it remanded defendant, determining he should not now benefit from his prior plea negotiations.
At the hearing, defendant testified that when he pled, he could not read his plea form because he did not have his glasses. When he asked for his glasses, his original attorney refused and made him fill out the form without telling him what he was signing.
Defendant claimed he did not understand that he would have to undergo counseling, that he was pleading to a strike, or that he was agreeing to lifetime sex offender registration. His attorney had told him he would only register for seven years, and it would be expunged. When the judge admonished him of the lifetime registration, his attorney told him he would take care of it. His attorney also told him he could change his plea because West was a “loophole” allowing him to change his plea.
He also testified he did not have his diabetes medication when he pled, adding, “[W]hen your sugar is high, you really can’t think.” And though he told the court of his medications, he had not been given them on the day of his plea.
Defendant’s original trial counsel also testified at the hearing. He testified he went over the plea form with defendant and explained each item. He could not recall if defendant had glasses, but he denied refusing him his glasses.
The attorney knew of defendant’s medical issues and his objections to the medical treatment in jail. But defendant did not appear to be in “unusually excruciating pain.” And nothing gave him concerns about defendant’s ability to knowingly and intentionally enter a plea.
The attorney denied telling defendant he could change his mind after the plea: he had explained a West plea is entered to take advantage of a settlement and does not include an admission of guilt. He also denied telling defendant he would not have lifetime sex offender registration -- though he did discuss seeking a pardon.
The trial court denied the motion to withdraw. It noted it had asked defendant about the plea form and medications. It had explained that a West plea has the same effect as a guilty plea. And defendant had represented that he was perfectly capable of understanding everything the court and his attorney were telling him. The court added, “While he may have buyer’s remorse after he left custody, I don’t think there has been an adequate showing . . . for me to set aside the plea because of that buyer’s remorse.”
The court granted probation for five years.
DISCUSSION
On appeal, defendant contends the denial of his motions was as an abuse of discretion. He argues he was unaware of the consequences of his plea. His original counsel labored under a conflict of interest when bringing the first motion. The trial court failed to inquire, with specificity, into his claim of physical distress. The trial court amended a significant term of the plea agreement by refusing to allow the plea to be withdrawn despite the unfavorable section 288.1 evaluation. And the court improperly characterized his multi-pronged request as a case of buyer’s remorse.
We find no abuse of discretion.
Any time before judgment, the court may permit the defendant to withdraw a plea for good cause. (§ 1018.) The defendant bears the burden of showing good cause by clear and convincing evidence. (People v. Breslin (2012) 205 Cal.App.4th 1409, 1415-1416.) Good cause exists if the defendant was “operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment,” including inadvertence, fraud, or duress. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) He must also show prejudice in that he would not have accepted the plea but for the mistake. (In re Moser (1993) 6 Cal.4th 342, 352.) “A plea may not be withdrawn simply because the defendant has changed his mind.” (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)
On a motion to withdraw, the trial court is the exclusive judge of credibility. (People v. Caruso (1959) 174 Cal.App.2d 624, 636.) It need not “accept and give credence to the affidavits submitted in support of the motion.” (Ibid.) Nor must it “ ‘accept as true the sworn testimony of a witness, even in the absence of evidence contradicting it.’ ” (Ibid.)
We will affirm unless the defendant demonstrates the trial court exercised its discretion in an “arbitrary, capricious, or patently absurd manner, resulting in a manifest miscarriage of justice.” (People v. Shaw (1998) 64 Cal.App.4th 492, 496.)
Here, the trial court acted well within its discretion in denying the motions. Defendant’s arguments on appeal simply do not alter the fact that neither motion offered good cause. Indeed, the trial court need not have credited defendant’s contradicted assertions that he did not understand the consequences of his plea. And defendant failed to show that his ailments overcame his exercise of free judgment -- particularly where the trial court had conducted an extensive voir dire, ensuring defendant understood the consequences of his plea. Similarly, the record cannot support defendant’s claim that his original counsel had a “conflict of interest” when he filed the first motion by not including all of defendant’s complaints. These assertions were flatly contradicted by his attorney’s testimony and the trial court’s voir dire.
Finally, the trial court did not alter the agreement by granting probation despite the unfavorable section 288.1 evaluation. The plea agreement did not hinge on a positive section 288.1 report -- it hinged on the trial court not rejecting the agreement. And the trial court did not reject the agreement; it granted probation, consistent with the plea agreement.
The trial court, therefore, acted within its discretion in denying the motions to withdraw the plea.
 
DISPOSITION
The judgment is affirmed.



/s/
Robie, J.



We concur:



/s/
Blease, Acting P. J.



/s/
Renner, J.