P. v. Wright

Filed 4/17/07 P. v. Wright CA3

P. v. Wright NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

Defendant Brandon D. Wright pled no contest to possessing cocaine base in case No. 04F05647 and to brandishing a firearm at a police officer and possessing cocaine base for sale in case No. 05F05056.

On appeal, defendant claims the trial court abused its discretion in denying his motion to withdraw his pleas.^[1] We disagree and shall affirm the judgment.

BACKGROUND

Case No. 04F05647

Officers stopped defendant after they saw him engaged in an apparent drug transaction in an area known for drug activity. When approached by police, defendant tossed six identically wrapped items onto a nearby rooftop; the items were retrieved and proved to contain cocaine base. Defendant was arrested and charged with possession of cocaine base for sale.

Case No. 05F05056

While defendant was on bail in the preceding case, he encountered police in an area with reported drug and gang activity and fled.

Sacramento Police Sergeant Joseph Wagstaff testified at the preliminary hearing that as he ran after defendant, he saw defendant reach into his waistband and pull out a handgun. Wagstaff believed defendant was trying to track him with the handgun because, as defendant was moving the gun in an up direction away from his body, he maintained eye-to-eye contact with Wagstaff, leading Wagstaff to believe defendant was following where [Wagstaff] was going. Fearing he was about to be shot, Wagstaff took cover behind a van. From behind the van, Wagstaff heard a heavy object move through the branches of a large oak tree overhead and, seconds later, Wagstaff saw defendant running with no weapon in his hand. Wagstaff resumed the chase, and saw defendant remove from his waistband what later proved to be money and cocaine. Police retrieved a gun from under the tree.

On cross-examination by defense counsel, Wagstaff agreed he never saw defendant point the gun at him.

Defendant was charged with assault with a firearm on a peace officer; assault with a deadly weapon; drawing a firearm in the presence of a peace officer; possession of cocaine base for sale; possession of cocaine base while armed with a firearm; and carrying a loaded concealable firearm.

Plea Proceedings And Request To Withdraw

In a single proceeding, defendant pled no contest in case No. 04F05647 to possessing cocaine base, and in case No. 05F05056 to possessing cocaine base for sale (while armed and on bail) and drawing a firearm in the presence of a peace officer. The remaining charges were dismissed.

A month later, defendant moved to withdraw his no contest pleas on the ground he was provided ineffective assistance of counsel and because he entered his pleas based upon a mistake or ignorance of all of the facts in his case. His alleged mistake or ignorance arose from the fact that, although he received copies of the police report regarding case No. 05F05056 before the preliminary hearing, he did not read it, or did not read it in detail, before entering his no contest pleas. As a result, he was unaware that there were several inconsistencies between the police report and the testimony provided by Sergeant Wagstaff at the preliminary hearing which would provide defendant a means of challenging Wagstaffs account.

The court denied defendants motion to withdraw his pleas, reasoning that although defendant might have changed his mind about the strength of the states case after he read the police report closely, his having done so does not rise to the level of a mistake of fact that would permit withdrawal of the plea. And thats the [People v.] Watts case, 67 Cal. App. 3d, [sic] 173.

DISCUSSION

Defendant contends the trial court abused its discretion in refusing to allow him to withdraw his pleas. It did not.

Penal Code section 1018 provides in relevant part that on the 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.

Notwithstanding the statutory directive of liberal interpretation, case law implementing Penal Code section 1018 establishes a stringent standard for overturning a guilty plea. Courts have stated that 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, 146.) And a defendant seeking to withdraw his plea has the burden to produce evidence of good cause by clear and convincing evidence. [Citation.] (People v. Wharton (1991) 53 Cal.3d 522, 585.) To demonstrate good cause, a defendant must show that his plea was not the product of his free judgment. Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.] (People v. Cruz (1974) 12 Cal.3d 562, 566.)

Appellate review of a trial courts denial of a motion to withdraw a guilty plea is equally stringent. As the Supreme Court has noted, a claim of an erroneous denial of a motion to withdraw a plea is reviewed for abuse of discretion. (People v. Holmes (2004) 32 Cal.4th 432, 442-443.) An appellate court will not disturb the denial of a motion unless the abuse is clearly demonstrated. [Citation.] (People v. Wharton, supra, 53 Cal.3d at p. 585.) In determining whether there has been an abuse of discretion, a reviewing court must adopt the trial courts factual findings if substantial evidence supports them. [Citation.] (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)

Here, defendant asserts that the trial court abused its discretion by trivializ[ing] his current belief that the prosecutions case against him could be easily undermined based on inconsistencies defendant identified between the police report and Sergeant Wagstaffs testimony.^[2] There was no abuse of discretion.

In fact, the trial court got it right: defendants argument is similar to one rejected in People v. Watts (1977) 67 Cal.App.3d 173, in which the trial court denied the defendants motion to withdraw his guilty plea to a charge of second degree murder. On appeal, Watts contended he should have been permitted to withdraw his guilty plea inasmuch as he was operating under a mistake of fact at the time he entered into the bargain. (Id. at p. 183.) His mistake of fact was an erroneous assumption when he entered his guilty plea, that one of his codefendants (Fontaine) would implicate him if the case went to trial. However, at the trial of another codefendant, Fontaine did not implicate Watts. Based on his mistake in overestimat[ing] the strength of the states case against him (ibid.), Watts contended he should have been allowed to withdraw his plea. The appellate court rejected this contention out of hand, stating: This is hardly the type of mistake, ignorance or inadvertence which would permit the withdrawal of a guilty plea.^[3](Ibid.)

Here, defendant may have made a similar mistake by assuming that Sergeant Wagstaffs preliminary hearing testimony was consistent with the written police report of the incident that gave rise to case No. 05F05056. But like the mistake of the defendant in People v. Watts, supra, 67 Cal.App.3d at page 183, this is not the type of error that would permit the withdrawal of a guilty plea because defendant has failed to show how his mistake in evaluating the evidence against him overcame the free exercise of his judgment in deciding to plead guilty. Often the decision to plead guilty is heavily influenced by the defendants appraisal of the prosecutions case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. Considerations like these frequently present imponderable questions for which there are no certain answers; judgments may be made that in the light of later events seem improvident, although they were perfectly sensible at the time. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering his decision. (People v. Hunt (1985) 174 Cal.App.3d 95, 103, quoting Brady v. United States (1970) 397 U.S. 742, 756-757 [25 L.Ed.2d 747, 761].)

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

MORRISON , Acting P.J.

BUTZ , J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

^[1] Defendant obtained a certificate of probable cause.

^[2] Although defendant seeks to withdraw both no contest pleas, he does not explain why an asserted inconsistency in evidence related to case No. 05F05056 had any effect on the voluntariness of his plea in case No. 04F05647.

^[3] In light of the trial courts express reliance on Watts, it is inexplicable that neither defendant nor the People bothered to address that case in their appellate briefs.