P. v. Warren

Filed 10/16/07 P. v. Warren CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

This is an appeal challenging the validity of a guilty plea entered by appellant Bernard Warren on one count of grand theft of property. Appellant seeks reversal of the sentence and judgment against him on the ground that the trial court abused its discretion in denying his motion to withdraw his guilty plea. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On September 1, 2005, an information was filed charging appellant with second degree robbery (count 1) and petty theft with a prior conviction (count 2).

The charges stemmed from events occurring on August 5, 2005 in San Francisco. Specifically, a security guard at a drugstore on Market Street saw appellant take an iron from the shelf, place it in a Hallmark bag, and then hand the bag to co-defendant Shirley Johnson. The security guard followed appellant and Johnson out of the store, identified himself as a drugstore employee, and advised that he was placing them under citizens arrest.[1] When the security guard attempted to escort appellant back into the store, appellant wrestled him to the ground, injuring his ankle. The police arrived soon after to arrest appellant and Johnson.

On August 4, 2006, the information was amended to charge appellant with grand theft of property over $400 (count 3). The same day, appellant pleaded guilty to count 3, and counts 1 and 2 were dismissed.

On December 28, 2006, appellant moved to withdraw his guilty plea on grounds of ignorance, coercion and impaired judgment. The trial court denied appellants motion and, at the subsequent sentencing hearing, suspended his sentence and placed him on probation for three years. The trial court also imposed a $200 restitution fine and a $200 probation revocation fine.

This appeal followed.

DISCUSSION

Appellants sole contention on appeal is that the trial court erred in denying his motion to withdraw the guilty plea.

Penal Code section 1018 provides: On application of the defendant at any time before judgment . . . the court may . . . for . . . 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.

 Mistake, ignoranceor any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citation.] (People v. Ramirez (2006) 141 Cal.App.4th 1501, 1506; see also People v. Cruz (1974) 12 Cal.3d 562, 566.) Clear and convincing evidence of any such factor, however, is required. (Ibid.; People v. Wharton (1991) 53 Cal.3d 522, 585.) Moreover, [a] plea may not be withdrawn simply because the defendant has changed his mind. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)

Whether to permit withdrawal of a guilty plea is a matter left to the trial courts sound discretion. (People v. Cruz, supra, 12 Cal.3d at p. 566; People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) Absent clear abuse of that discretion, we will not disturb the trial courts decision on appeal. (People v. Cruz, supra, at p. 566; People v. Huricks, supra, at p. 1208.) Further, we defer to the trial courts findings of fact supporting its decision so long as those findings are based on substantial evidence. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)

Here, appellant sought to establish good cause for withdrawing his guilty plea based on the following circumstances: (1) he was not informed that he may be required to pay restitution directly to the victim (the drugstore security guard, who was slightly injured during the crime); (2) he mistakenly believed he could refile his case after pleading guilty; (3) depression, stemming in part from his belief that he lacked adequate legal representation, precluded him from understanding the plea proceedings; and (4) his plea was coerced due to inadequate legal representation.

After a full evidentiary hearing, at which both appellant and his attorney testified, the trial court denied appellants motion.[2]In denying the motion, the trial court found that appellants guilty plea had been voluntarily made, that no evidence existed of coercion, and that appellants depression, even if it existed, did not contribute to his plea. We conclude the trial court acted within its discretion in rendering this decision.

The record before the trial court in ruling on appellants motion showed that, before entering his guilty plea, appellant was fully advised of the consequences of doing so. In particular, before entering his plea, appellant confirmed to the trial court that his attorney had advised him of the charges against him and their possible defenses, of the terms of the plea bargain, including the sentence he would receive pursuant to it, and of the fact that, by entering a guilty plea, he would be waiving his constitutional rights, including his right to a jury trial and his privilege against self-incrimination.

Later, at the hearing on the motion to withdraw the guilty plea, appellant acknowledged to the trial court that he never told his attorney he lacked understanding of the plea proceedings or their consequences. Appellant also acknowledged previously telling the trial court that he in fact understood the proceedings. Moreover, appellant admitted having pled guilty to crimes in the past, lending further support to the trial courts conclusion that he had understood the nature of the proceedings and had voluntarily entered his plea in this case.

We acknowledge appellants testimony that, when he entered his plea, his ability to understand the proceedings was affected by depression, which included feelings that his attorney was not adequately representing him or his interests. Appellant claimed he had suffered from depression for about six years, and that it really has gotten bad, because the attorney I have right now and Im not really sure that hes working with me. I cant explain the extent of it right now, but I just dont have no communications with my attorney right now. And Im not thoroughly informed on whats going on. . . . So I am just having a hard time with it.

Even assuming, however, that a showing of depression could support appellants claim that his plea was entered without free judgment, the evidence before the trial court failed to meet the requisite clear and convincing standard for motions to withdraw guilty pleas. (E.g., People v. Cruz, supra, 12 Cal.3d at p. 566.) In particular, appellant offered no evidence aside from his own self-serving statements that supported his claim of depression, including no evidence of having undergone medical treatment. Moreover, appellant admitted failing to tell his attorney and the trial court of his purported condition, and failing to tell the trial court that his attorneys conduct was interfering with his judgment at the time of the plea proceedings. And while appellants attorney acknowledged suspecting at the time of the plea proceedings that appellant may have had low grade mental issues, nothing at that time caused him to suspect appellant was depressed or otherwise lacked understanding of the proceedings or their consequences.

We also acknowledge appellants testimony that he entered the guilty plea under the mistaken understanding that he could later refile on the case, and without the understanding that he would be required to pay restitution directly to the drugstore security guard, the victim of his crime. With respect to appellants alleged belief that he could refile after pleading guilty, the evidence supporting it was disputed. Appellant testified his attorney told him he could refile, but admitted he never mentioned this purported fact when the trial court asked whether he understood he was waiving his rights to a jury, to confront witnesses, and to the privilege against self-incrimination.[3]Moreover, appellants attorney denied under oath that he told appellant he could later take back the guilty plea and proceed to trial, confirming instead that he advised appellant that certain of his constitutional rights would be waived by entering the plea. This testimony, inconsistent with appellants testimony, supported the trial courts decision not to withdraw the guilty plea. (People v. Grgurevich (1957) 153 Cal.App.2d 806, 811 [the trial courts ruling will not be disturbed in the face of conflicting evidence]; People v. Fairbank, supra, 16 Cal.4th at p. 1254 [the reviewing court must adopt the trial courts factual findings if supported by substantial evidence].)

With respect to whether appellant was advised that he may be required to pay restitution directly to the victim, we fail to grasp the relevance of such fact, even if we were to find it true. First, the record undisputedly proves appellant was advised he would have to pay a restitution fine pursuant to Penal Code section 1202.4 as part of his plea bargain. Moreover, when asked whether the guilty plea would have changed had he known that he may be required to pay restitution directly to his victim, appellant admitted he did not know. Rather, appellant replied that, had he known, he probably would have asked for some time to think it out. Given appellants vague reply, we cannot conclude his lack of notice regarding who would receive his restitution payment required the trial court to withdraw his guilty plea. (People v. Walker (1991) 54 Cal.3d 1013, 1022-1023 [an uninformed waiver of rights based on the trial courts failure to advise the defendant of the consequences of pleading guilty constitutes error requiring the plea to be set aside only if the error was prejudicial to the defendant].)

Finally, we note in closing that appellant, who has a long history of involvement in Californias criminal justice system, received a very favorable bargain after entering his guilty plea. Under the plea bargain, appellant received probation for three years, with a suspended sentence, despite the Probation Departments description of him as a marginal candidate for probation based on his numerous prior convictions and parole violations. We conclude such plea bargain should not be lightly set aside. (People v. Sandoval (2006) 140 Cal.App.4th 111, 123.)

Accordingly, based on our review of the appellate record, we conclude the trial court properly exercised its discretion in denying appellants motion to withdraw his guilty plea. As such, we decline to disturb the trial courts decision.

DISPOSITION

The judgment is affirmed.

_________________________

Horner, J.*

We concur:

_________________________

McGuiness, P. J.

_________________________

Pollak, J.

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* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] Appellant maintained he had not left the store when the security guard approached him, and that video footage from the stores security camera supported his claim.

[2] Appellant was represented by new counsel for purposes of the motion to withdraw his guilty plea.

[3] Although the record on this point is confusing, it appears appellant believed refiling his case after pleading guilty meant he could have a trial at which he could try to prove his innocence.