Filed 9/27/17 P. v. Marx CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Daniel B. Goldstein, Judge. Affirmed.

Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.

Prior to the preliminary hearing in this case, appellant Michael J. Marx entered a guilty plea to one count of corporal injury to a spouse or roommate causing great bodily injury (Pen. Code,[1] §§ 273.5, subd. (a), 12022.7, subd. (e), 1192.7, subd. (c)(8)). Marx[2] also admitted a strike prior (§ 667, subds. (b)-(i)). The plea agreement also stipulated to a four-year prison term and included the pending probation revocation case.

Marx replaced his retained counsel with the public defender. Thereafter, he filed a motion to withdraw his guilty plea on the grounds of ineffective assistance of counsel and that his attorney pressured him by telling Marx he would get more time if convicted. Following an evidentiary hearing the court denied the motion to withdraw the plea. The court sentenced Marx to a four-year term pursuant to the plea agreement.

Marx appeals contending his testimony was "uncontested" and that the court abused its discretion in denying his motion. We disagree. As we will discuss, Marx may have been the only witness, but his testimony was not uncontested. Marx was confronted with his written and oral statements under oath which were contrary to his current testimony. In his testimony and his brief on appeal, Marx discounts the significance of his statements as part of the plea process as simply formalities and he was "just going through the motions." The trial court was well within its discretion to reject the current, self-serving testimony as not credible and to deny the motion.

STATEMENT OF FACTS

Since this appeal is from a guilty plea, we will take a brief summary of the facts of the offense from the probation officer's report. The summary set out in the appellant's opening brief is accurate and we will incorporate it here.

Count 1: On January 22, 2016, at approximately 9:30 p.m., appellant and ex‑girlfriend Amber Sedlow were drinking alcohol at his house. Appellant became upset when Sedlow began texting other men. He took her phone away. When Sedlow tried to get it back, appellant slapped her in the side of the face with an open hand. Sedlow hit appellant back and took control of her phone. Appellant then wrestled Sedlow to the ground. He stood over her and stomped on her face about four times with a steel-toed boot. The force broke her jaw and caused her mouth to bleed.

Dismissed counts 2 and 3: Sedlow agreed to stop texting other men if appellant would take her home. As appellant helped Sedlow clean up her face, he told her, "If you tell the authorities, I'll fucking kill you and you will never see your daughter again." This caused Sedlow to fear for her daughter's safety, as well as her own. As appellant drove Sedlow home, he repeatedly told her he was going to kill her.

Appellant dropped Sedlow off and she walked into her home crying. The San Diego Police Department was contacted and responded to the residence. Upon arrival, an ambulance was called for Sedlow and she was transported to Scripps Mercy Hospital.

DISCUSSION

Marx contends his retained counsel pressured him into pleading guilty. Marx claims his attorney told him the four-year deal was the best he could get and that even if he won the current case he would still face probation revocation and more time. Although counsel did not say he was unprepared, Marx argued counsel had not done the investigation needed and did not interview the defense witnesses. Even though the case had not yet been through a preliminary hearing, Marx believed more should have been done. Counsel met with him five to six times in person and at least five times by phone. The principal threat Marx identified was that he was facing more time in custody if he did not take the deal.

As the court and the parties discussed at the hearing, Marx was actually facing up to 23 years in custody if convicted of all charges and his probation revoked.

The primary support for the argument on appeal is the appellant's claim his testimony was uncontested. As we have already noted, that is simply not true. It is apparent the trial court relied on appellant's written and oral statements at the change of plea hearing. There, Marx denied any pressure, understood the proceeding and was satisfied with the representation provided by his counsel. Plainly his testimony was "contested."

A. Legal Principles

We review a decision to grant or deny a motion to withdraw a guilty plea under the abuse of discretion standard of review. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254; People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796.) In a motion to withdraw a guilty plea, the defendant has the burden to show good cause by clear and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562, 566; § 1018.) Good cause to withdraw a guilty plea includes mistake, ignorance, duress, ineffective assistance of counsel, or any other factor overcoming the free exercise of judgment. (Cruz, supra, at p. 566; People v. Breslin (2012) 205 Cal.App.4th 1409, 1416.)

Before we determine if the trial court has abused its discretion we look to the facts found by the trial court or its decisions on the credibility of witnesses, even where only one witness testifies. (See People v. Hunt (1985) 174 Cal.App.3d 95, 103.)

B. Analysis

The trial court took judicial notice of the transcript of appellant's testimony at the change of plea. The court questioned Marx closely about the change of plea and his statements under oath. Marx had pleaded guilty three times before this case. He testified he understood the process in each case. His explanation for the statements he made at the change of plea was that he was just going through the motions and he did not mean what he said under oath. The trial court explained the motion was being denied based on the oral and written testimony Marx gave when he pleaded guilty.

On appeal, Marx continues to argue his testimony was uncontested. He minimizes his testimony at the change of plea as mere formalities. He claims denying his motion, based on the conflict with his earlier testimony, is an abuse of discretion. Marx emphasizes the trial court did not make any factual findings. While the latter statement is true, it is obvious from the testimony and the court's statements, that the court did not find the current testimony to be truthful.

Marx made no credible showing that his counsel was unprepared to handle the preliminary hearing or that counsel was not representing him because of delays in payment of fees. The only threat identified was that Marx was facing much more time in custody if he did not take this "deal." That was certainly a true statement. If the case went to a preliminary hearing the prosecution was going to add a five-year prior (§ 667, subd. (a)(1)). It was also true that Marx was facing a probation revocation and a substantial risk of more custody, regardless of the outcome of the current charges.

The fact that trial counsel strongly urged Marx to accept a four-year term for all of his offenses, as opposed to an exposure of over 20 years is hardly remarkable. In short, appellant's "uncontested" testimony does not establish "good cause" to withdraw his plea.

The trial court was well within its discretionary authority to reject appellant's new version of events and find no good cause to withdraw the plea. There was no error.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.