Filed 9/5/18 P. v. Johnson CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Danquay Johnson appeals from a judgment entered pursuant to a guilty plea to one count of misdemeanor grand theft of a person (Pen. Code, § 487, subd. (c))[1] and one count of participation in a criminal street gang (§ 186.22, subd. (a)). In accordance with the negotiated disposition, the trial court sentenced defendant to two years in prison, satisfied through credit for time served and good conduct. It additionally imposed gang registration (§ 186.30) and various fines and fees.

His appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so. Upon independent review of the record, we conclude no arguable issues are presented for review and affirm the judgment.

Section 1237.5 generally precludes an appeal from a judgment of conviction after a plea of no contest or guilty unless the defendant has applied for, and the trial court has granted, a certificate of probable cause. There are two exceptions: (1) a challenge to a search and seizure ruling, as to which an appeal is proper under section 1538.5, subdivision (m); and (2) post-plea sentencing issues. (See People v. Shelton (2006) 37 Cal.4th 759, 766; see also People v. Buttram (2003) 30 Cal.4th 773, 780.) Defendant did not make a suppression motion. Defendant did, however, apply for a certificate of probable cause with respect to the denial of his motion to withdraw his plea, which the trial court granted.

Conflicts counsel was appointed for the purpose of determining whether there was any basis for a motion to withdraw defendant’s plea. On the basis of a recent psychological evaluation, defendant moved to withdraw his plea. The report indicated a history of emotional and psychological issues and that defendant has had at least six prior evaluations. He has consistently tested in the “low average” and “borderline” range on numerous tests. The most recent evaluation described defendant as intellectually functioning at the level of an 11 year old and as being at risk for “difficulty with impulse control, poor judgment, and being vulnerable to influence by others.” He did not have a stable childhood, and has a lengthy history in the justice system.

The report stated defendant’s lawyer had commented before the plea that her client does “ ‘not seem to be getting it.’ ” It then recounted numerous comments defendant made about his case, including that he did not want to take the plea, but was “ ‘forced’ ” by his lawyer, who said if he did not accept, he “ ‘could get life or 30 years.’ ” Defendant stated he had also felt pressured by a co-defendant. He described the plea as throwing his life away, and while describing a plea bargain as agreeing to a lesser charge for a lesser sentence, claimed “ ‘that’s not what I got.’ ”

With respect to whether defendant’s plea was “knowing, intelligent, and voluntary,” the report stated “several factors raise the possibility that it was not.” These included his immaturity and cognitive deficits placing him at risk of being influenced by others, including his lawyer. The report also noted defendant had said he had used morphine the day of the plea and that on three occasions in the juvenile court he had been found incompetent to stand trial. However, defendant had been able to explain the plea bargain in the instant case “in simple terms,” although he seemed to have “some difficulty” in understanding the details. The report also pointed out that defendant had “a history of indecision and sabotaging decisions he has previously made.” The concluding assessment was that defendant’s “cognitive deficits and immaturity do not appear to render him incapable of pleading guilty in the future, but he will need assistance in fully understanding the details of a plea and what he is agreeing to before proceeding.”

Defendant testified at the hearing on his motion. He asserted he did not want to plead guilty, but “was forced by” his lawyer. “She like did a scare tactic on me.” When asked if there were any “other” reasons why he pled guilty when he did not want to, defendant said: “I don’t know. Too much going on. I was like—I wasn’t in my right state of mind.” Then he added, he was “under the influence” of morphine.

On cross-examination, defendant claimed he did not remember any of the details of the day of his plea, including, for example, his interactions with his attorney. What he remembered was his lawyer telling him “if you don’t take this, you get 30 years, basically.” He did not remember any specifics. “She just told me it was two years. I don’t have to go to the pen.” Nor did he remember that the counts were read to him in court, or any of the inquiries or admonitions by the court prior to accepting his plea. When asked why he wanted to withdraw his plea, he replied, “Because I made a mistake.” He did not believe he was “a gang member,” and said he should have taken “it all the way until it’s proven.”

Dr. Amanda Gregory, who prepared the psychological report attached to defendant’s motion, also testified. Dr. Gregory reiterated the conclusions previously set forth in her report.[2]

The prosecution, in turn, asked the court to take judicial notice of the transcript of the change of plea hearing, to which there was no objection.

After hearing argument by defense counsel and the prosecution, the trial court denied the motion to withdraw the plea. It observed that while Dr. Gregory testified defendant had a number of psychological deficits that might place him at risk of not knowing what the plea entailed, she also testified he had “a basic understanding” of the plea deal. The court further quoted from the transcript of the plea hearing where defendant clearly and unequivocally confirmed that he understood the terms of the proposed disposition, that the terms were as he expected, and that he had not been pressured into agreeing to the plea. The court therefore found defendant had not proven by clear and convincing evidence that he did not understand the plea deal or that he had been under duress when he agreed to the disposition and pled guilty. The court additionally pointed out the transcript reflected defense counsel anticipated that by the time defendant was sentenced, he would not, in fact, serve two years in prison (the agreed upon sentence), but would, with credits, serve only one year in county jail. The court then confirmed defendant’s custody credit status, and it was, indeed, going to yield that result. In fact, by the date of sentencing, defendant had enough credits that he had a “paper commitment.”

It is clear defendant had adequate representation in connection with his motion to withdraw his plea, and it is clear he had a full and complete opportunity to make an evidentiary showing in support of his motion. The trial court also correctly stated that his burden was to show by “clear and convincing evidence” that he had not understood the terms of the negotiated disposition or that he had been subjected to coercion or duress. (People v. Breslin (2012) 205 Cal.App.4th 1409, 1416 [“To establish good cause to withdraw a guilty plea, the defendant must show by clear and convincing evidence that he or she was operating under mistake, ignorance, or any other factor overcoming the exercise of his or her free judgment, including inadvertence, fraud, or duress.”].) As we have recounted, substantial evidence supports the trial court’s findings here. Accordingly, the court did not abuse its discretion in denying defendant’s motion. (See Breslin, at p. 1416 [“ ‘A denial of the motion will not be disturbed on appeal absent a showing the court has abused its discretion.’ [Citations.] ‘Moreover, a reviewing court must adopt the trial court’s factual findings if substantial evidence supports them.’ ”].)

After defendant filed his motion to withdraw his plea, but before the hearing on the motion, he made a Marsden[3] motion. We have reviewed the sealed reporter’s transcript of the hearing. Defendant was given a full opportunity to state his concerns, and defense counsel also stated his position on the points raised by defendant. The essence of defendant’s complaint was that his new attorney was not sufficiently enthusiastic about his case because new counsel, after reviewing the discovery, reached the same conclusion as had his prior attorney—that defendant should accept the plea deal. The trial court did not abuse its discretion in denying the motion. (See People v. Streeter (2012) 54 Cal.4th 205, 230, disapproved on other grounds as stated in People v. Harris (2013) 57 Cal.4th 804, 834.)

Disposition

After a full review of the record, we find no arguable issues and affirm the judgment.

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Banke, J.

We concur:

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Margulies, Acting P.J.

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Dondero, J.

A151959, People v. Johnson