P. v. Ramirez

Filed 4/25/07 P. v. Ramirez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Dennis A. McConaghy, Judge. Affirmed with directions.

Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Lilia E. Garcia, Supervising Deputy Attorney General, for Plaintiff and Respondent.

Defendant pled guilty to one count of selling methamphetamine (Health & Saf. Code,  11379, subd. (a)), and admitted four prior prison term allegations (Pen. Code,  667.5, subd. (b)). Prior to sentencing, defendant moved to withdraw her plea. The court denied the motion and sentenced defendant to a five-year prison commitment pursuant to the courts indicated sentence. On appeal, defendant contends the trial court erred in denying her motion to withdraw her guilty plea. For the reasons set forth below, we shall affirm the judgment.

I. FACTUAL AND PROCEDURAL HISTORY

On April 28, 2005, an undercover officer with the Riverside Police Department knocked on the door of codefendant Laura Chavez with the intent of making a purchase of controlled substances.^[1] The officer had previously purchased methamphetamine from Chavez. Chavez came to the door and, at the officers request, took $20 from him, retrieved a bag containing what was later determined to be methamphetamine, and handed the bag to defendant. Defendant then tore off a piece of plastic from a garbage bag, wrapped the methamphetamine in plastic, and handed it to the officer. The officer later obtained a warrant for defendants arrest for the selling of a controlled substance.

On October 25, 2005, the People filed an amended information charging defendant with selling a controlled substance (count 2 ‑‑ Health & Saf. Code,  11379, subd. (a)) and alleging four prior prison terms (Pen. Code,  667.5, subd. (b)). On the date set for trial, defendant informed the court she was willing to plead guilty to all charges in return for the courts indicated sentence of five years.^[2] The court took defendants plea and continued the matter for the preparation of a probation officers report and sentencing.

On the date set for sentencing, defendants counsel indicated defendant now wished to withdraw her plea. The court continued the matter so another attorney could be appointed to advise defendant on her efforts to withdraw the plea. Conflict counsel subsequently filed a motion to withdraw defendants plea to which the People filed opposition. After a hearing, the court denied the motion and sentenced defendant to a total term of five years. The court imposed the midterm of three years on count 2 (selling methamphetamine), struck two of the admitted priors, and imposed one year, consecutively, for each of the two remaining priors.

On appeal, defendant challenges the trial courts denial of her motion to withdraw her guilty plea.

II. DISCUSSION

A. The Trial Court Properly Denied Defendants Motion to Withdraw Her Plea

Defendants sole contention on appeal is that the trial court erred in denying her motion to withdraw her guilty plea. Defendant essentially enumerates three bases for overturning the trial courts decision: (1) defendant did not understand the nature and consequences of her plea due to her learning disabilities; (2) the trial court failed to provide defendant with sufficient time to contemplate entering the plea; and (3) defense counsels lack of preparedness to proceed with trial compelled defendant to enter the plea. We shall address each contention in turn.

A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. [Citations] [Penal Code] Section 1018 provides that . . . On application of the defendant at any time before judgment . . . the court may, . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. Good cause must be shown for such a withdrawal, based on clear and convincing evidence. [Citation.] [Citations.] 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 defendants free judgment include inadvertence, fraud or duress. [Citations.] [Citation.] The burden is on the defendant to present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty. [Citation.]

When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] On appeal, the trial courts decision will be upheld unless there is a clear showing of abuse of discretion. [Citations.] [Citation.] Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged. [Citation.] (People v. Weaver (2004) 118 Cal.App.4th 131, 145-146.)

Abuse of discretion is established if, considering all of the circumstances before it, the trial court exceeded the bounds of reason. [Citation.] Of course, [t]he scope of discretion always resides in the particular law being applied; action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an abuse of discretion. (People v. Parmar (2001) 86 Cal.App.4th 781, 792-793.)

Defendant contends her learning disabilities, placed in context with the confusion she exhibited during the proceedings, demonstrates that she lacked the mental capacity to understand the nature and consequences of her plea such that the plea was involuntary. Attached to defendants motion to withdraw the plea were several reports prepared by clinical psychologists all reflecting defendants difficulty understanding some procedures and tasks, as well as showing she had a memory deficit. Defendant also repeatedly stated on the record that she was confused about the proceedings. Moreover, defendant and her counsel both submitted declarations averring that her learning disabilities interfered with her ability to understand her plea. She also maintains that she believed she was required to plead guilty because her codefendant did so. This, defendant contends, made the plea the result of her lack of free judgment.

We disagree with defendants contention. First, as the People below correctly noted, neither defendants nor her counsels declarations were signed under penalty of perjury. As such, the trial court was well within its discretion in disregarding them. (Code Civ. Proc.,  2009; Evid. Code,  710; Osborn v. City of Whittier (1951) 103 Cal.App.2d 609, 619.) Second, determinations of credibility and the truth or falsity of the facts on which the determinations depend are trial court functions. (People v. Jones (1990) 51 Cal.3d 294, 314; People v. Anderson (1991) 1 Cal.App.4th 318, 322.) Thus, the trial court may simply have disbelieved defendants and her counsels assertions in the declarations, a determination which would have been well within its authority. Third, defendants experience with the legal system is a relevant factor to consider when determining whether she understood the nature and consequences of her plea. (People v. Mosby (2004) 33 Cal.4th 353, 365.) Here, as the People correctly note, defendant had substantial prior familiarity with legal proceedings. As part of her plea, defendant admitted convictions for four prior felonies. Moreover, the probation officers report reflects defendant had at least 17 prior convictions. Thus, the trial court could have appropriately determined that defendants knowledge and sophistication with regard to the plea process was considerable. Fourth, and finally, none of the psychological reports submitted by defendant actually state that she was incapable of understanding the legal proceedings against her. Rather, one report suggested she portrays adequate understanding of rules [and] procedures. Likewise, another asserted that while she had comprehension problems, such difficulties could be overcome with assistance and simple instructions.

This is precisely what her counsel and the court below provided her. When defendant herself suggested the possibility of going to trial without her codefendant, the court assured her it would determine whether or not this would occur, to which she expressed comprehension. Defendant later confirmed that counsel thoroughly explained the plea agreement to her. The court asked defendant if she needed any additional time to discuss the proceedings with counsel or if she had any questions of the court. Defendant replied that she did not. Moreover, defendant initialed the appropriate sections of the plea agreement indicating she understood her rights and the consequences of the plea. Thus, any confusion defendant may have exhibited prior to the taking of the plea appear to have been remedied by counsel and the courts explanations thereafter. Indeed, the record does not reflect any expression of confusion on defendants part during or after the taking of the plea.

In a related argument, defendant appears to maintain that the trial courts failure to reference the documentation in support of her motion resulted in an abuse of discretion. Defendant specifically notes the failure of the court to allude to the declarations she and her counsel submitted on behalf of the motion. Initially, we note defendant fails to cite any authority for the proposition that the trial court, in ruling on a motion to withdraw the plea, is required to allude to each and every document and basis in support of the motion. Failure to cite to legal authority on a particular point authorizes an appellate court to treat the issue as waived. (People v. Stanley (1995) 10 Cal.4th 764, 793.) Moreover, while the court did not specifically reference the reports, it expressly indicated it had read defendants moving papers and the opposition papers thereto. (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 563 [judicial officers presumed to have lawfully performed their duties].) It then requested of counsel if there was anything else it needed to read, and counsel responded there was not. Thus, the record duly establishes that the court considered all evidence submitted to it prior to ruling on the merits of defendants motion.

Defendant also contends she was denied sufficient time to contemplate entering the plea. Here again, defendant fails to cite any authority for the proposition that a trial court is required to allow a defendant some minimal amount of time to reflect upon the proffered agreement before entering into it. (People v. Stanley, supra, 10 Cal.4th at p. 793.) Nonetheless, even if the court were required to permit the defendant a particular amount of time, this record lacks sufficient information to establish how much time this defendant had to consider the plea and the courts indicated sentence. Apparently, the communication of the plea and indicated sentence took place off the record in chambers; however, we have no indication when.

Nevertheless, the record reflects the court permitted defendant sufficient time to contemplate the plea. When the court called the case initially for the taking of the plea, defendants counsel indicated defendant was confused and would require at least a day to consider her options. The court declined giving her an additional day, noting the jury panel was already prepared. Indeed, the record here reflects the commencement of trial had been continued a number of times already, originally having been set for September 19, 2005, and the plea agreement taking place on January 9, 2006. Nonetheless, the court declared a recess during which defendants counsel apparently explained the nature and consequences of the plea to defendant. Thus, when the court recalled the case for the taking of the plea, defendant no longer expressed any confusion. In fact, in response to the courts query as to whether defendant had any questions or needed any more time to discuss the matter with counsel, defendant replied that she did not. Therefore, the record demonstrates that defendant had sufficient time to contemplate and discuss the plea with counsel such that it was entered into voluntarily. (People v. Thompson (1949) 94 Cal.App.2d 578, 583.)

Finally, defendant contends her trial counsels lack of preparedness for trial coerced her into entering the plea. Specifically, defendant avers that because counsel had never visited her in jail, he was not ready to proceed. Her premise that a jail visit would be requisite to preparedness for trial is not at all self-evident. As noted above, the commencement of trial had been continued numerous times, affording defendants trial counsel an opportunity at each occurrence to confer with defendant. Defendant herself, in her declaration, concedes that she and counsel had spoken at various court proceedings. Moreover, defendants contention is belied by the fact that trial counsel explicitly informed the court he was ready to proceed on November 18, 2005, almost two months prior to the taking of the plea. Furthermore, on the day the court entered the plea, defense counsel brought clothing for defendant, implicitly indicating he was ready to proceed to trial. Thus, the only evidence adduced that trial counsel was unprepared to proceed was defendants own self-serving declaration which was not executed under oath. (People v. Hunt (1985) 174 Cal.App.3d 95, 103 [trial court not obligated to believe defendants uncontradicted statements].) This was information the trial court was well within its discretion to disregard or consider outweighed by the other evidence before it.

Ultimately, the trial court acted well within its discretion in denying defendants motion to withdraw the plea. While some evidence supports defendants contention that she was confused by the proceedings and that she lacked a high degree of mental acuity, the trial court, nonetheless, had sufficient evidence in which to determine that the defendant entered the plea voluntarily. Indeed, as the trial court explained at the time it denied the motion: I specifically remember this plea, mainly because of the facts of the case, and the fact that [trial counsel] spent an extraordinary amount of time talking to [defendant], as did I. [] I was more careful in taking this plea because she at first, if I remember correctly, she wasnt certain what she wanted to do. She wanted to enter the plea. So for those reasons I dont see any good cause to set aside the plea. (Italics added.) Thus, the record affirmatively shows that defendant was fully cognizant of the nature and consequences of her plea and the trial court acted within the bounds of reason and did not transgress the confines of the applicable principles of law in denying her motion to withdraw it.

III. DISPOSITION

The trial court is directed to prepare a modified abstract of judgment which reflects the striking of two of the four admitted priors. The trial court is furthermore directed to correct the minute orders dated January 9, 2006 and May 5, 2006, to reflect defendants admission of four priors and, in the latter minute order, the striking of two priors. The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Ramirez

P.J.

/s/ Hollenhorst

J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line attorney.

^[1] This appeal does not involve codefendant Chavez.

^[2] There is a discrepancy in the record regarding how many priors defendant admitted and how they were dealt with for purposes of sentencing. The minute orders dated January 9, 2006 and May 5, 2006, and the abstract of judgment reflect defendants admission of only three priors; however, the plea agreement, the oral taking of the plea, and the reporters transcript of sentencing all demonstrate defendant admitted four priors. Likewise, the minute order dated May 5, 2006, and the abstract of judgment reflect the court imposed one-year consecutive sentences for two priors and stayed imposition of time on a third prior, nowhere indicating the fourth admitted prior. However, the reporters transcript of sentencing indicates the court struck two of the four priors and imposed consecutive one-year enhancements on the remaining two priors. The latter scenario appears the most credible when viewed in the context of the record as a whole; therefore, we will direct the superior court to amend the minute orders dated January 9, 2006 and May 5, 2006, and the abstract of judgment to reflect that defendant admitted four priors and that the court struck two of the priors at the latter hearing. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Smith (1983) 33 Cal.3d 596, 599; People v. Vasquez Diaz (1991) 229 Cal.App.3d 1310, 1316.)