P. v. Cacho

Filed 8/28/07 P. v. Cacho CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE COURT:*

Frederick Cacho (appellant) appeals from the judgment entered following his negotiated and certified plea of no contest to assault by means of force likely to produce great bodily injury and with a deadly weapon upon a police officer. (Pen. Code, 245, subd. (c).)[1] Following the plea and before sentencing, the trial court denied appellants motion to set aside his plea. Pursuant to the terms of the negotiated plea, the trial court sentenced appellant to a five-year term in state prison.

We appointed counsel to represent him on appeal.

After an examination of the record, counsel filed an Opening Brief in which no issues were raised. On June 4, 2007, we advised appellant that he had 30 days in which to personally submit any contentions or issues which he wished us to consider. On that same date, this court ordered the record augmented with a Request for Court to Appoint Attorney for the Defendant Concerning Defendants Request to Withdraw his Plea. No response to our June 4, 2007, letter has been received to date.

The record establishes that on September 7, 2005, the People filed a felony complaint charging appellant with attempted murder of a peace officer ( 667/187, subd. (a)), assault by means of force likely to produce great bodily injury and with a deadly weapon on a police officer ( 245, subd. (c)), evading an officer with willful disregard (Veh. Code, 2800.2, subd. (a)), and possessing a deadly weapon ( 12020, subd. (a)(1)). Before the preliminary hearing, the People offered defendant a plea bargain in which he would receive a five-year prison term were he to plead guilty to the count 2 charge of assault upon a peace officer, a violation of section 245, subdivision (c). The plea bargain included a promise that appellant would earn prison credit at a rate of 50 percent.

Prior to the plea, the prosecutor put the terms of the plea offer on the record. The prosecutor said that he wanted the record to show the plea offer as the charges exposed appellant to a life term. Appellants counsel commented that appellants family was upset because they wanted appellant to accept the offer of the plea. The trial court then asked appellant whether he wished to accept the offer, and he replied, Yes. The trial court informed appellant that one consequence of his plea would be that the trial court would terminate his probation in an unrelated misdemeanor case. When the trial court inquired if anyone had made him promises not set out on the record or threats regarding the plea, appellant replied: Yeah. The reason why I accepted the five year[s] is because I was told that I would stay in prison for the rest of my life. Thats why I accepted the five years.

The trial court told appellant, Well, if you are not guilty, you wouldnt. If you are convicted of count 1, you would be sent to prison for life with a minimum period that you would have to serve until you are eligible for parole. The question Im asking you is have any threats been made to you or have any promises been made to you to force you to plead guilty to count 2? Appellant replied, No, Your Honor. The trial court asked whether appellant was pleading guilty freely and voluntarily and because [he felt it was] in [his] best interest? There was a pause in the proceedings, and trial counsel off the record had a brief discussion with appellant. When proceedings resumed, appellant replied, Yes.

Appellant waived the requisite constitutional rights to a plea and entered a no contest plea to count 2. The trial court said that it had observed appellants demeanor during the plea, and it found a knowing, intelligent, understanding, and explicit plea and a waiver of constitutional rights. It also said that appellant understood the maximum term and the consequences of his plea and that he had been advised of the nature of the charge and the possible defenses. Upon trial counsels stipulation, the trial court found a factual basis for the plea.

Before sentencing, trial counsel, who was retained, filed a motion asking for the appointment of counsel to assist defendant in setting aside his plea. The trial court appointed counsel Herb Barish to raise that issue. The trial court did not relieve trial counsel as attorney of record for appellant. Mr. Barish moved to set aside the no contest plea based on appellants claim of innocence. Mr. Barish also filed an affidavit, in effect indicating the nature of further preparation in which a well-prepared attorney would engage before commencing trial or advising a plea.

Also attached to Mr. Barishs motion was the arrest report for the incident. It indicated that appellant was arrested after police officers discovered him driving at high speed on the freeway under the influence of methamphetamine and appellant failed to pull over when a police car attempted to stop him. The report indicated that appellant had led the police officers on a high speed pursuit. Because of the danger created by the pursuit, the police car stopped, permitting an air unit to take over the chase. The air unit followed appellant to a condominium complex. There, Los Angeles Police Department ground units attempted to stop appellant in his car as he drove on the complexs driveways. Appellant failed to comply with police demands that he stop. He used his car twice to assault a police officer and hit two police cars with his vehicle in an effort to escape. One police officer found it necessary to discharge his shotgun twice at appellant. Appellant then got out of his drivers door with an 18-inch black cylindrical object, which he waved around and threw down. Only then, did appellant surrender to the pursuing officers.

Before sentencing, the trial court heard appellants motion to set aside his earlier no contest plea. During appellants testimony on the motion, he claimed that he was innocent, but acknowledged that he pled no contest after considering the benefits and the risks [and] all the pros and cons of going to trial. Appellants claim was that trial counsel had threatened him to obtain his plea. Upon questioning he agreed that the threat amounted to trial counsel having hurt his feelings because trial counsel said that he would be foolish not to accept the five-year offer at 50 percent. In his testimony, trial counsel explained that in his judgment, appellant could offer no defense to the felony evading charge, and it was in appellants best interests to accept the plea bargain, given that he probably would be found guilty of at least one offense at trial. Also, the jury pool in that area was conservative and pro-police, and trial counsel did not think it was advisable for appellant to go to trial as it risked obtaining a life term.

The trial court denied appellants motion to withdraw his plea. It is settled that a defendant may move to withdraw his plea, at any time before judgment, on a showing, by clear and convincing evidence, of good cause. ( 1018; People v. Weaver (2004) 118 Cal.App.4th 131, 145 (Weaver); People v. Hunt (1985) 174 Cal.App.3d 95, 104 (Hunt).) To establish good cause, it must be shown that the defendant was operating under a factor that overcame the exercise of his free judgment. (Hunt, supra, at p. 103.) One such factor is duress. (Weaver, supra, at p. 146.) A showing that the defendant was denied effective assistance of counsel in entering a guilty plea may also constitute good cause to allow withdrawal of the plea. (In re Alvernaz (1992) 2 Cal.4th 924, 936.) But a plea may not be withdrawn simply because after the plea, a defendant changes his mind. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456-1457; see also Hunt, supra, at p. 104.)

We review a trial courts ruling on such a motion for an abuse of discretion. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)

The trial court properly exercised its discretion in finding that trial counsel had a rational tactical purpose for advising appellant to enter a plea to appellant and substantial evidence in the record supports the conclusion that counsel had sufficient knowledge of the prospective trial evidence to properly advise appellant to enter the plea. Accordingly, appellant did not demonstrate ineffective trial counsel. (People v. Lucas (1995) 12 Cal.4th 415, 442.) That appellant had to be persuaded or was reluctant to enter a plea is insufficient to show the plea was involuntary. (People v. Urfer (1979) 94 Cal.App.3d 887, 892.) On this record, it appears that appellants postplea motion to withdraw his plea, given the great benefits of entering into the plea bargain and its voluntary nature, amounted to nothing more than postplea apprehension. (Hunt, supra, 174 Cal.App.3d at pp. 103-104.)

We have examined the entire record and are satisfied that appellants attorney has fully complied with his responsibilities and that no arguable issues exist. (Peoplev. Wende (1979) 25 Cal.3d 436, 441.)

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

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* DOI TODD, Acting P. J., ASHMANN-GERST, J., CHAVEZ, J.

[1] All further statutory references are to the Penal Code unless otherwise indicated.