P. v. Moreno

Filed 8/7/07 P. v. Moreno CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Patrick J. O'Hara, Judge.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Wanda Hill Rouzan and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

This is an appeal from a judgment entered after no contest pleas pursuant to a plea agreement. Contending he did not understand that the plea bargain would subject him to a prison term of 21 years to life, defendant and appellant Agustin Martinez Moreno^[1]asserts that the trial court abused its discretion when it denied his motion to withdraw his pleas of no contest.

Facts and Procedural History

Defendant, whose blood alcohol level was measured at .19 percent an hour after the collision, drove at 80 to 100 miles per hour through red lights and stop signs until another car entering an intersection struck defendants truck. The collision caused defendants truck to leave the road; it struck a utility pole, killing defendants wife and two children. Defendant and the other driver were also injured.

Defendant was charged with three counts of second degree murder (Pen. Code,  187, 189) and three counts of gross vehicular manslaughter while intoxicated (Pen. Code,  191.5, subd. (a)). The information also alleged one count of causing injury while driving with an alcohol level in excess of .08 percent (Veh. Code,  23152, subd. (b)) and various other counts and special allegations. Defendants maximum sentence, as charged, would have been 52 years to life.

After extensive negotiation with the prosecutor, defendant entered into a plea agreement in which he pled no contest to the manslaughter counts, the special allegations of prior convictions that resulted in a mandatory minimum sentence of 15 years to life (Pen. Code,  191.5, subd. (d)), and the Vehicle Code section 23152, subdivision (b) count. The agreement called for a maximum sentence of 21 years to life. On August 14, 2006, the court (through a Spanish language interpreter) questioned defendant about his understanding of the plea agreement and obtained defendants waiver of rights. Defendant stated he understood the agreement and entered his no contest plea to the relevant counts and allegations.

At the sentencing hearing on October 6, 2006, defendant moved to withdraw his pleas. Separate counsel was appointed to represent defendant on the withdrawal motion and the case was continued to October 12.

At the October 12 hearing, defendant testified that his attorney never told him prior to his no contest pleas that he could spend the rest of my life incarcerated. He told me that in less than 15 years, maximum 15, that I would be able to get out. He said that, by the time he was questioned by the court about the plea bargain, he felt very pressured and did not understand what the court was saying. Defense counsel testified he had discussed the matter extensively with defendant, using the defense investigator, who was very familiar with the case, as an interpreter. Counsel testified he talked with defendant on several occasions (and for hours) about the case and about the life sentence. The day of the change-of-plea hearing, counsel and another attorney from the public defenders office spent a considerable amount of time with defendant; basically all we discussed, was the life term, the consequences, what his parole hearings would be like, and things of that nature. On that occasion, counsel used the court interpreter.

After hearing the evidence, the court concluded defendants testimony was not credible; the court denied the motion to withdraw the plea. The court then sentenced defendant to prison for 21 years to life.

Defendant filed a notice of appeal.

Discussion

Defendant acknowledges that we review the trial courts ruling for abuse of discretion. He acknowledges that we must defer to the trial courts credibility findings where supported by substantial evidence. (People v. Weaver (2001) 26 Cal.4th 876, 919.) And he acknowledges that good cause to withdraw a guilty plea must be established by clear and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562, 566.)

Defendant contends, however, that since a defendants subjective experience is not subject to contradiction no matter how convincing the evidence is that appellant was properly advised of the potential punishment, the trial court should have permitted appellant to withdraw his plea. This assertion, made without any citation of authority, is clearly contrary to established law.

Mental state is nearly always established by circumstantial evidence. Direct evidence of the mental state of the accused is rarely available except through his or her testimony. The trier of fact is and must be free to disbelieve the testimony and to infer that the truth is otherwise when such an inference is supported by circumstantial evidence regarding the actions of the accused. (People v. Beeman (1984) 35 Cal.3d 547, 558-559.) The finder of fact is entitled to accept the circumstantial evidence of the required mental state and reject as incredible defendants own denial of the mental state. (See People v. Savage (1944) 66 Cal.App.2d 237, 242; see also People v. Wiley (1976) 18 Cal.3d 162, 176 [Appellant denied that she intended to cause William cruel pain and suffering, although she admitted that she realized that (her accomplices) acts would cause pain. Her intent in this regard therefore was necessarily based on inferences drawn from the circumstances in which the homicidal attack on William occurred and the means by which the beating was administered.].)

Defendant offers no rationale, plausible or otherwise, why this rule, permitting the trier of fact to reject a defendants testimony and decide the relevant mental state on the basis of circumstantial evidence, should not be applicable to a trial courts consideration of a defendants intent and understanding in the context of a motion to withdraw a plea. We hold that the rule is fully applicable, and there is ample circumstantial evidence to support the courts finding of fact in the present case. The court did not abuse its discretion in denying defendants motion to withdraw his plea.

Disposition

The judgment is affirmed.

^* Before Vartabedian, Acting P.J., Wiseman, J. and Hill, J.

^[1]Defendants given name appears in the record as Augustine and Agustine. We use the spelling used by defendant in his request for appointment of counsel.