P. v. Leidecker

Filed 6/20/06 P. v. Leidecker CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Affirmed.

Eric M. Leidecker entered a negotiated guilty plea to driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)),^[1] and hit and run (§ 20002, subd. (a)). He admitted having incurred three or more convictions for driving under the influence of alcohol within the previous 10 years (§ 23550, subd. (a)), a prior strike (Pen. Code, § 667, subds. (b)-(i), 1170.12) and having served a prior prison term (Pen. Code, § 667.5, subd. (b)). The court denied a motion to strike the prior strike and sentenced him to prison for four years: double the two-year middle term for driving under the influence of alcohol with three or more convictions of prior driving under the influence of alcohol within the prior 10 years. The court imposed a six-month county jail term for the hit and run conviction, which was satisfied by credit for time served. More than four months after sentencing, Leidecker moved to withdraw his guilty plea. After holding an evidentiary hearing, the court denied the motion. Leidecker contends that the trial court incorrectly applied an objective standard rather than a subjective one in denying his motion to withdraw his guilty plea.^[2]

DISCUSSION

Courts may permit withdrawal of a guilty plea upon a showing of good cause. (Pen. Code, § 1018.) Good cause is shown where the plea was entered as a result of mistake, ignorance, inadvertence, or overreaching. (People v. Urfer (1979) 94 Cal.App.3d 887, 892.) In People v. McCrory (1871) 41 Cal. 458, 462 the Supreme Court stated "when there is reason to believe that the plea has been entered through inadvertence, and without due deliberation . . . the Court should be indulgent in permitting the plea to be withdrawn." However, the Supreme Court also noted that a "party should not be allowed to trifle with the Court by deliberately entering a plea of 'guilty' one day and capriciously withdrawing it the next," and concluded that the decision to allow withdrawal of a guilty plea rests in the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion. (Ibid.)

In a declaration attached to Leidecker's motion to withdraw his guilty plea, Attorney Jerry Leahy, who represented Leidecker in the motion to withdraw the guilty plea, informed the court that Leidecker had contacted him before he entered his guilty plea. Leidecker was concerned about whether or not the court would strike his prior strike so that he could serve his sentence at California Rehabilitation Center (CRC). Leidecker chose not to hire Leahy at that time and to wait and see what his appointed counsel, public defender Courtney Cutter, could work out in a plea agreement. After Leidecker entered his guilty plea, he told Leahy that the court was going to strike the prior strike, making him eligible for CRC commitment. Leidecker was happy because he believed he was going to CRC and not to prison. After the court imposed the prison term, Leidecker hired Leahy to assist him in seeking to withdraw his guilty plea.

In the second declaration attached to his motion to withdraw his guilty plea, Leidecker confirmed what Leahy had told the court and added that on the day he entered his guilty plea, his attorney, Cutter, spoke with the court in chambers and subsequently told Leidecker that the court was going to strike the prior strike as part of the plea bargain.

At the evidentiary hearing, Cutter testified that after she met with the judge in chambers on the day Leidecker entered his guilty plea, she told Leidecker that the court made no assurance that it would strike the prior strike. During direct examination by the People, Cutter testified:

"A. To the best of my recollection, and after reviewing my notes in the file, I advised Mr. Leidecker of the things Judge Revak told me, including the fact that he was sympathetic to the fact that Mr. Leidecker was a talented artist, that he felt that he had done well for a period of time, and it was a shame the he was in trouble again.

"The fact that Judge Revak was concerned, on the other hand, that the strike had apparently been stricken in another case, and he wasn't sure he'd be inclined to do that for Mr. Leidecker again.

"He was persuaded somewhat by the fact that the CRC program was willing to accept Mr. Leidecker back should the court sentence him accordingly.

"But he indicated to me that we had the laboring oar. And those words I had in quotation marks in my notes, and I recall the judge saying those, indicating to me that it was going to be an uphill battle for us to persuade him in light of the whole set of circumstances.

"Q. And did you tell Mr. Leidecker that?

"A. Yes, I did.

"Q. And did you explain to him what that phrase laboring oar means?

"A. To the best of my recollection, I explained it in the same terms, which is that we had an uphill battle, that it was going to be up to us to convince the judge that it was the right result.

"Q. Was the judge striking the strike as part of the plea bargain, to your understanding?

"A. Depends on what you mean by a part of the plea bargain.

"Q. Was there a guarantee that it would be stricken if he pled guilty to these charges.

"A. No.

"Q. To your understanding?

"A. No.

"Q. Did you ever indicate otherwise to Mr. Leidecker?

"A. That it was guaranteed?

"Q. Yes.

"A. No."

At the evidentiary hearing, Leidecker testified that before his arrest in the present case, he had been at CRC for nine months and wanted to return. On November 29, 2004, after speaking in chambers with the court, Cutter told him, "It looks like Judge Revak is going to strike your strike, so you can go to CRC." He was happy and entered the guilty plea.

In denying Leidecker's motion to withdraw his guilty plea, the court said it was, "reasonably convinced that Mr. Leidecker believed in his own mind, however he got there, he believed in his own mind that he was going to get the strike stricken and get to go back to CRC. I don't doubt that he sincerely believed that." The court further stated:

"[A]n objectively reasonable person would not have thought it was an absolute guarantee or almost a guarantee he was going to get the strike stricken.

"When you signed up for the deal, I think you wanted that deal. And you wanted that deal badly. And a lot of times what happens when attorneys are talking to their clients is that there's a lot of - and I took enough pleas, a lot down there and other places to know that there is a lot of wishful thinking that goes on on behalf of criminal defendants, and they convince themselves that oh, I'm going to get this great deal, and it's a guarantee, when it's not a guarantee. They convince themselves of that. And I think that's what you did. You convinced yourself that this was going to happen, when that was not the way it was presented to you.

"And I think that, applying an objective standard to the evidence in this case, I think that it was objectively reasonable for you to think that it was not a guarantee that your strike was going to be stricken, and that a reasonable person in your position would not have believed that."

Leidecker claims the trial court erred in refusing to grant his motion to withdraw the guilty plea after the court recognized that Leidecker entered the guilty plea under the mistaken belief that the court would strike his prior strike and commit him to CRC. Leidecker maintains that the court abused its discretion in applying an objective standard in determining whether or not Leidecker should be allowed to withdraw his plea. He contends that a sincerely held, but objectively unreasonable, belief that he would receive a less severe sentence entitled him to withdraw his plea.

The burden is on the appellant to prove error. (People v. Green (1979) 95 Cal.App.3d 991, 1001.) Citing no authority to support his claim that applying an objective standard was error, Leidecker has not carried his burden. The court accurately advised Leidecker of the maximum term he could receive. Leidecker confirmed there were no promises or representations made to get him to plead guilty. His trial attorney told him that the court was sympathetic but that getting a commitment to CRC would be an uphill battle. Finally, at the evidentiary hearing, Leidecker affirmed that Cutter "didn't come in and say I guarantee the strike is being stricken. She didn't say that. She said, well looks like the judge is going to strike the strike, so you can go to CRC."

The trial court did not abuse its discretion in applying an objective standard to determine whether or not Leidecker should be allowed to withdraw his guilty plea.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

NARES, Acting P. J.

McDONALD, J.

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^[1] All statutory references are to the Vehicle Code unless otherwise specified.

^[2] Because Leidecker entered a guilty plea, he cannot challenge the facts underlying the conviction. (Pen. Code, § 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We therefore need not recite those facts.