P. v. Wolf

Filed 9/25/07 P. v. Wolf CA1/3

Opinion following order vacating prior opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant Jeffery Martin Wolf appeals from a judgment entered following his guilty plea to, among other things, one count of assault with a deadly weapon. He contends the trial court erred in denying his motion to withdraw his plea pursuant to Penal Code section 1018.[1] He argues that his plea was defective because he was not advised that under section 1203, subdivision (e), his admission of the aggravated assault created a statutory presumption against probation. We conclude that the court did not abuse its discretion in denying the motion because, when his plea was accepted, there was not a climate of real anticipation that probation was likely. (People v. Vento (1989) 208 Cal.App.3d 876, 879 (Vento).)

Background

On April 1, 2005, defendant was charged by a consolidated felony complaint with one count of attempted murder ( 664, 187, subd. (a)); three counts of assault with a deadly weapon ( 245, subd. (a)(1); one count of evading a peace officer (Veh. Code,  2800.2, subd. (a)); one count of inflicting injury on a peace officer ( 243, subd. (c)(2)), one count of assault with a deadly weapon on a police officer ( 245, subd. (c)); one count of threatening an executive officer ( 69); and two misdemeanor counts of resisting arrest ( 148, subd. (a)(1)). The complaint also alleged that defendant was on bail when most of these offenses were committed ( 12022.1).

On the same day, pursuant to a negotiated disposition, defendant pled guilty to assault with a deadly weapon (count 2), evading a police officer (count 5), and inflicting injury on a peace officer (count 7). Defendant also admitted the on-bail enhancement attached to count 2.[2] The sentencing hearing was initially set for June 2, 2005, but was continued at defendants request until August 16, 2005. At the August 16 hearing, defendant indicated that he was contemplating withdrawing his plea and requested that the court appoint counsel to assist him with that motion. The court did so and, on January 25, 2006, defendant filed a motion to withdraw his plea based on the fact that he had not been advised that he would be presumptively ineligible for probation, and that he would not receive probation unless the court found said probation was in the interests of justice and due to an unusual circumstance.

On March 6, the court denied defendants motion. Thereafter, defendant was sentenced to six years four months in state prison. Defendant filed a timely notice of appeal.

Discussion

Under section 1018, the court may [o]n application of the defendant at any time before judgment . . . 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.] The decision whether to allow a defendant to withdraw a guilty or no contest plea is discretionary, and an appellate court will not disturb it absent a showing the trial court has abused its discretion. (People v. Mickens (1995) 38 Cal.App .4th 1557, 1561.)

Defendant contends the trial court abused its discretion in denying his motion to withdraw his plea because he was not advised prior to entry of the plea that there is a statutory presumption against probation for the offense of assault with a deadly weapon. ( 1203, subd. (e)(2).)[3] In general, when a defendant is led to believe that probation is likely, but probation is in fact statutorily disfavored, the trial court must disclose this statutory limitation to the defendant before accepting a plea. (Vento, supra, 208 Cal.App.3d at p. 879; People v. Spears (1984) 153 Cal.App.3d 79, 87.) In Spears, defendants entered pleas having been led by the trial court to believe that probation was likely. While the court made clear no promises were being made, it failed to disclose that for the offenses to which the defendants were entering pleas probation was statutorily disfavored and therefore improbable. In the case of one defendant, the taking of the plea commenced with his counsel asking for confirmation that his client would be eligible for probation. The court responded: I dont read it as a mandatory prison, where the Court has no discretion. Do you understand that? Defense counsel responded that he agreed. The plea was then taken by a careful court which made it clear that no promises had been made, interspersed with references to if the defendant should go to prison. (153 Cal.App.3d. at p. 83.) The other defendant also was told no promises were being made. He agreed with the courts denial that neither the judge, defense counsel, nor the district attorney is promising you, if you plead guilty to these two things we guarantee you wouldnt go to prison, or we guarantee you will get straight probation.  (Ibid.) After spelling out the various prison terms to which they were exposed by their pleas, [t]he court also warned the defendants that if given probation, the terms and conditions of probation must be observed to avoid revocation. (Ibid.) After the defendants were sentenced to state prison they moved to withdraw their pleas on the basis of an asserted understanding by all concerned that the defendants were local businessmen whose affairs would be jeopardized if they were not given probation and an assignment to a work furlough program. (Id. at p. 84.) On appeal, the court observed that, although the defendants were advised of the maximum sentence, references were made to probation without the slightest hint that there were statutory hurdles. (Id. at p. 87.) Although the court declined to hold that a court must invariably advise a defendant that a plea invokes a strong statutory presumption against probation, the court recognized the need to advise a defendant that probation is disfavored when the plea and admissions make it so, and the defendant, counsel, and the court appear to consider probation likely. In that situation, to avoid having to grant a subsequent motion to withdraw the plea, the court must disclose the full consequences of such a plea; it shall not consider advice of the maximum punishment permitted by law to be sufficient. (Ibid.)

Later, in Vento, supra, 208 Cal.App.3d at pages 879-880, the same court clarified that where the record does not show a climate of real anticipation that probation was likely, the trial court is not required to advise the defendant probation is statutorily disfavored. In Vento, the trial court advised the defendant of the maximum sentence he faced. The trial court then stated, Now I indicated to your attorney that should you plead guilty or be found guilty that I would not rule out the possibility of probation and local sentencing in your case. By the same token, I would not rule out the possibility of a state prison commitment; do you understand that? Vento stated that he did and proceeded to waive his constitutional rights and plead guilty. He indicated that he had not been promised anything in exchange for his plea other than what was stated in court, and that he was pleading guilty because he was in fact guilty. (Id. at p. 878.) In upholding a judgment sentencing defendant to five years in prison, the court found that when Vento entered his plea he had not been informed that probation was statutorily disfavored, but that the record does not show a climate of real anticipation that probation was likely. Instead, the trial court simply indicated that it was ruling out none of its sentencing options. (Id. at p. 879.)

Here, the Attorney General does not dispute that defendant was not advised of the applicable statutory presumption against probation. Indeed, although the waiver form signed by defendant prior to entry of his plea advised him that there were additional consequences of his plea, presumptive prisonone of the potential consequences listed on the formwas not circled to indicate that it applied in this case. The Attorney General argues, however, that the trial court was not required to advise defendant of the presumption because, as the trial court found, [t]he record here does not show a climate of real anticipation that probation was likely.

Defendant acknowledged that the judge never told him he would be placed on probation and that the judge and the prosecutor did not make any promises or representations that [he] would receive anything less than seven years four months in state prison. Defendants attorney testified at the hearing on the motion to withdraw defendants plea that she told defendant prior to the entry of his plea that she was hopeful and was going to do [her] very best to get him probation, but [she] did [not] promise him probation or tell him that it would be a consequence of this plea. She explained that she told defendant the same thing she tells all of her clients, that the judge will make her decision after she read [the] presentence report and after she heard all of our pleas for probation.[4] She also advised defendant that the prosecution would be recommending a prison term. Defendant testified that prior to entering his plea, his attorney told him,  You have a really good chance of getting probation. Its not guaranteed, but you have a really good chance of getting probation.  Defendants version of his attorneys advice is significantly more optimistic than confirmed by the attorney, and the trial court was not bound to accept it. The statement to which the attorney testified, that she would try to obtain probation, without more, did not create a climate of real anticipation that probation was likely. (Vento, supra, 208 Cal.App.3d at p. 879.) In light of the serious nature and severity of the charges confronting defendant (see fn. 2, ante), and in the absence of any encouraging remarks by the court or the prosecutor, there was no reasonable basis for him to have believed that probation was likely. Accordingly, the trial court did not abuse its discretion in denying defendants motion to withdraw his plea.

Disposition

The judgment is affirmed.

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Pollak, J.

We concur:

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McGuiness, P. J.

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Siggins, J.

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

[2] In light of the limited scope of this appeal, a lengthy recitation of the facts concerning defendants offenses is unnecessary. It is sufficient to note that the charges against defendant stem from his attempt to evade arrest on an outstanding warrant. With regard to count 2, the probation report explains that defendant lead officers on a high-speed chase in which he attempted on a number of occasions to ram the officers cars. At one point, defendant stopped his truck and an officer stepped in front of the vehicle with his gun drawn and ordered defendant to get out. [Defendant] looked directly at [the officer]. [Defendant] hunkered down, put it in drive and he floored it. [The officer] believed that [defendant] was going to try to kill him by running him over. He feared for his life so he jumped out of the way while discharging his firearm . . . .

[3] Section 1203, subdivision (e) reads in part: Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons: [] . . . [] (2) Any person who used, or attempted to use, a deadly weapon upon a human being in connection with the perpetration of the crime of which he or she has been convicted.

[4] She also told defendant how he should present himself to the probation officer: accept responsibility, show remorse, rehabilitation, the three rs.