Filed 1/11/18 P. v. Salzbrunn 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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. Richard T. Fields, Judge. Affirmed.

James John Salzbrunn, in pro. per.; and Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On March 24, 2015, an information charged defendant and appellant James John Salzbrunn with assault with a deadly weapon, e.g., leather reins, under Penal Code section 245, subdivision (a)(1) (count 1); and assault by means of force likely to produce great bodily injury under Penal Code section 245, subdivision (a)(4) (count 2).

On August 17, 2016, following the trial court’s determinations that counts 1 and 2 should be considered misdemeanors, defendant pled guilty to those counts. Thereafter, criminal proceedings were suspended, and the court placed defendant on summary probation for 36 months, with 180 days in county jail. Defendant received two days’ credit, with the remaining 178 days to be served in a work release program.

On November 17, 2016, defendant’s new counsel filed a motion to withdraw his guilty plea. The prosecution opposed the motion. On December 29, 2016, the trial court denied defendant’s motion.

On January 27, 2017, defendant filed a timely notice of appeal from the judgment, and from the denial of his pretrial motions and his posttrial motion to withdraw his plea. On January 30, 2017, the court granted defendant’s request for a certificate of probable cause.

B. FACTUAL HISTORY

1. THE UNDERLYING CRIMES

On June 8, 2014, around 6 p.m., Conrad Jauregui, his wife, and a neighbor were riding their horses on a trail in their neighborhood in Norco. As they were heading home, defendant, who was also on horseback and whom Jauregui had never met before, approached Mrs. Jauregui and offered her something to drink. Thinking that defendant was “hitting” on his wife, Jauregui asked defendant why he had not offered Jauregui anything, then told defendant to leave them alone. Defendant responded, “you f’ing Mexican, you think you’re going to challenge me,” then began whipping Jauregui and his horse with defendant’s reins. Defendant referred to Jauregui as a “Mexican riding a stud horse,” then charged at him, saying, “you Mexicans, you think you can come over here and take over everything. I’m not going to stop until I beat you to the ground.” Defendant then used his reins to strike Jauregui on the head, face and back more than 10 times, and also struck the head of Jauregui’s horse.

Jauregui, who was also pulling a colt behind, said both his horse and the colt became scared because of defendant’s screaming. The colt got loose. Jauregui went home and put his horse behind the gate. As Jauregui came through the gate, defendant again charged him with his horse. Jauregui grabbed defendant’s shirt and ripped it. Defendant began hitting Jauregui with his reins. When a neighbor came out and told defendant to leave Jauregui alone, defendant responded, “Well, your neighbor’s an a-hole,” then left. According to Jauregui, defendant appeared to be drunk.

Riverside County Sheriff’s Deputy Jonathan Kehrier was dispatched to the area. When he first saw defendant, he was riding away from the area at full gallop. Deputy Kehrier interviewed defendant at Valley View and Fifth. Defendant “was a little bit belligerent.” He refused to get off his horse until the deputy aimed his Taser at defendant. Defendant displayed signs of being under the influence, e.g., bloodshot and watery eyes, slurred speech, and smelled of alcohol. Defendant told the deputy that Jauregui charged him, knocked off his hat and ripped open his shirt.

When speaking with Jauregui the day after the incident, Deputy Kehrier noticed that Jauregui had raised red welts on his back, and a small laceration on his face, which the deputy opined to be consistent with being struck by reins. Jauregui was prescribed pain medication by a doctor, and was off of work for one week.

2. MOTION TO WITHDRAW THE GUILTY PLEA

At the time of his plea on August 17, 2016, defendant indicated to the court that he had gone over the plea form with his attorney, and understood his rights and the consequences of his plea. He also indicated that he had time to discuss the plea with his attorney. The court indicated the bases for reducing the charges to misdemeanors was because defendant was 60 years old and had “no real prior record.” Thereafter, the court reviewed the charges with defendant, and defendant pled guilty to each charge. Immediate sentencing was requested by defendant’s counsel. Imposition of sentence was suspended and defendant was placed on 36 months of summary probation.

On November 17, 2016, new counsel for defendant filed a motion to withdraw the guilty plea. The bases of the motion was defendant’s claim that his guilty pleas “were made without effective assistance of counsel, proper advice and time for him to think and consider what he was pressured into doing, i.e. pleading guilty on a case he had been vigorously fighting.” Defendant claimed that very little time was spent with counsel prior to defendant signing the guilty plea form; that defendant was pressured to take the deal; and defendant was confused while speaking with counsel based upon a prior surgery for the removal of a tumor at the base of his skull, and was currently on disability for a work-related injury to his shoulder. Defendant used a service dog and had a history of confusion, and problems understanding/comprehending data.

At the time of the hearing on the motion, the trial court indicated that it was not considering the declaration of defendant’s former counsel, which was submitted by the prosecution in support of its opposition to defendant’s motion; the declaration was neither dated nor signed. The court, however, indicated that it had considered the plea form and the fact it personally inquired of defendant and found that it did not detect any problems with respect to defendant’s comprehension. Moreover, it “did not detect any problem . . . of his understanding of what he was charged with, what he was pleading to, whether or not he had adequate time to speak with his counsel, and that’s why I asked him specifically, and the record speaks for itself what his answers were in response to the Court’s question.” On that basis, the court denied defendant’s motion.

DISCUSSION

After 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, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record.

We offered defendant an opportunity to file a personal supplemental brief. On November 8, 2017, defendant filed a one-page typewritten brief, with 68 pages of additional documents attached to his brief. In his brief, defendant challenges the validity of his plea. In sum, defendant argues “The only reason I pled guilty was because I had made about 34 appearances and I just wanted it to end.” Defendant also claims that his former counsel “lied” to him about the plea deal.

Penal Code section 1018 states, in pertinent part: “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. . . . This section shall be liberally construed to effect these objects and to promote justice.” To establish good cause, the defendant must show, by clear and convincing evidence, that he pled guilty because of mistake, ignorance or any other factor that overcame his exercise of free judgment. (People v. Cruz (1974) 12 Cal.3d 562, 566.) Indeed, “[t]he 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.” (People v. Shaw (1998) 64 Cal.App.4th 492, 496.) Determinations of credibility and the truth or falsity of the facts on which the determinations depend are trial court functions. (People v. Anderson (1991) 1 Cal.App.4th 318, 322.) “Withdrawal of a guilty plea is left to the sound discretion of the trial court. A denial of the motion will not be disturbed on appeal absent a showing the court has abused its discretion.” (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)

We are satisfied from this record that the trial court did not abuse its discretion in denying defendant’s motion to withdraw his guilty plea. At the hearing on the motion, the trial court noted: “I have considered the plea form, though, because the plea form is, in fact, part of the plea agreement and the plea taken by the Court. And in that plea form, defense counsel does assert, as an officer of the court—it’s not a declaration, but it is a plea form and is a court record, that he is the attorney for the defendant, that he’s satisfied the defendant understands his or her constitutional rights, and understands that a guilty plea would be a waiver of those rights, that the defendant has had adequate opportunity to discuss this case with counsel, including any defenses he may have to the charges. The defendant understands the consequences of guilty plea.

“My issue here is that I personally asked the gentleman those questions, did he have sufficient time to speak with his counsel, from me to him, and his answer was yes. And I asked him did he initial and sign the form only after he had reviewed it carefully with his attorney, and his answer was yes. So the assertions now seem to be contrary to the direct questions the Court asked him.

“And I do absolutely think I have authority to allow him to withdraw the plea if I think that’s appropriate. I don’t have a problem with doing that if I think it’s appropriate. And like I said, in reviewing it, I didn’t see—from my view of the case, I didn’t see anything that suggested the defendant was not understanding. . . .

“But anyone who’s been here who’s come here a couple days will know, I don’t hesitate to stop a plea if a person shows a lack of comprehension. There’s no value in that to me, and I always feel like there’s going to be regrets if we do that later, so I’d rather say, no, just stop. Let’s just stop right now. Speak to your counsel.

“Unless I’m satisfied, I don’t—I say, and have said on the record, I prefer the person go to trial. That way there’s no ambiguities. If the jury rules in your favor, more power to you, because that’s our system and I honor it. If the jury says you’re acquitted, you are acquitted. If you get convicted, you’re convicted. I honor it. I don’t make these things personal in any way.

“But in reviewing it, I cannot see any problem. I’m not saying the gentleman doesn’t have any problems. I’m just saying I did not detect any problem, in my view of his understanding of what he was charged with, what he was pleading to, whether or not he had adequate time to speak with his counsel, and that’s why I asked him specifically, and the record speaks for itself what his answers were in response to the Court’s question.

“So I do think I have authority to do it, but I just don’t see anything in this record at all that would warrant in this particular case—because it’s really a case-by-case basis, and in particular, in reviewing the transcript, as well as the plea form. But for me, the plea form really is not enough. I think the Court should inquire personally. I did. And in looking at it, I’m satisfied, and I remain satisfied, so I’m going to deny the defendant’s motion.”

Based on the record in this case, we agree with the trial court’s assessment of the case. Therefore, we conclude that the trial court did not abuse its discretion in denying appellant’s motion.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no error.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

RAMIREZ

P. J.

CUNNISON