P. v. Lozano

Filed 6/6/06 P. v. Lozano CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice and Clarence Westra, Judges.^†

George A. Boyle, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, David A. Rhodes and Clayton S. Tanaka, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

On February 16, 2005, appellant, Jose Lozano, pled no contest to assault with a deadly weapon (§ 245, subd. (a)(1)).^[1] On April 20, 2005, defense counsel explained that Lozano wanted to file a motion to withdraw his plea, though counsel stated he did not believe Lozano had a legal or factual basis to do so. On April 25, 2005, defense counsel told the court he had a conflict with his client. The court granted counsel's motion to withdraw as attorney of record. A new defense attorney was appointed.

On July 25, 2005, the court denied Lozano's motion to withdraw his plea. The trial court sentenced Lozano to prison for the two-year lid which was a term of the plea agreement. On September 20, 2005, the trial court denied Lozano's motion to recall his sentence.

On appeal, Lozano argues he was misinformed of the consequences of his plea because he was led to believe he would be placed on probation. He contends the trial court erred in denying his motion to withdraw his plea. Lozano also contends the trial court erred in relieving his original defense attorney without first making an inquiry as to the nature of the conflict counsel was having with him.

FACTS

Change of Plea

On February 16, 2005, Lozano entered into a plea agreement. Under the terms of the agreement, Lozano would be subject to the two-year lower term and a count of felony vandalism and a count of misdemeanor hit-and-run would be dismissed.^[2] The court explained to Lozano that entering a no contest plea was the same as a guilty plea. Lozano waived his right to a preliminary hearing. The court gave Lozano complete Boykin/Tahl admonitions.^[3] Lozano waived his constitutional rights.

The court explained to Lozano that in admitting the felony allegation, there was a sentencing range of two, three, or four years. The court explained to Lozano that, â€