In re T.S.

Filed 4/25/07 In re T.S. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Peter A. Warmerdam, Juvenile Court Referee.

Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

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The court readjudged appellant, T. S., a ward of the court (Welf. & Inst. Code,  602)^[1]after he admitted allegations charging him with attempted robbery (Pen. Code,  664/211) and violation of probation ( 777). On July 12, 2006, the court set T. S.s maximum term of confinement at 5 years 10 months and committed him to the California Department of Corrections and Rehabilitation Division of Juvenile Justice. (DJJ.)

On appeal, T.S. contends: 1) the court abused its discretion when it denied his motion to withdraw plea; and 2) the court misunderstood its discretion in setting his maximum term of confinement. We will affirm.

FACTS

On March 24, 2006, at approximately 3:50 p.m., T. S. and two other males approached a customer at a fast food restaurant and asked him for money. When the customer said he had none and walked outside the restaurant, T. S. followed him, stated, Where you going with my money, and raised his shirt to expose the butt of a handgun. As T. S. removed the gun from his waistband, his mother drove up and yelled for him to get in the car. T. S. left but was arrested later that day when a police officer pulled his mothers car over and found a replica of a handgun in the car.

On April 24, 2006, the district attorney filed a petition charging T. S. with one count each of attempted robbery (count 1), exhibiting an imitation firearm in a threatening manner (count 2/Pen. Code, 417.4), possession of tobacco by a minor (count 3/Pen. Code, 308, subd. (b)), and violation of probation (count 4). Count 1 also alleged a gang enhancement (Pen. Code, 186.22, subd. (b)(1)).

On May 16, 2006, T. S. admitted the attempted robbery offense and the violation of probation in exchange for the dismissal of the remaining counts and enhancement. Prior to entering his plea, T. S. executed an Advisal and Waiver of Rights form that explained to him his constitutional rights and which he initialed indicating he understood and waived these rights. Additionally, Michelle Trujillo, T. S.s defense counsel at the time, signed the form indicating that she explained each provision of the form to T. S. and was satisfied that he understood them.

Afterwards, the court asked T. S. on the record if he was going to admit the attempted robbery charge and probation violation and he responded that he was. T. S. also acknowledged that he understood that his plea would add eight months to his maximum term of confinement, that he put his initials on the Advisal and Waiver of Rights form, that he signed the form because he was willing to give up his constitutional rights and admit the two counts, and that nobody had threatened him or promised him more than the dismissal of charges and enhancement. When the court asked T. S. if he admitted the attempted robbery allegations, his mother asked if she could talk but the court did not let her. His mother, however, did not renew her attempt to address the court after it took T. S.s admissions.

On May 31, 2006, the court appointed attorney Margret Smith to represent T. S. On July 10, 2006, defense counsel Smith filed a motion to withdraw plea on T. S.s behalf, alleging that T. S. did not understand the consequences of his admission because when he entered his plea he was taking Dilantin, an antiseizure medication, which caused him mental confusion and disorientation. Attached to the motion was a declaration from T. S.s mother wherein she stated that on the day T. S. entered his plea, it was very obvious to her that T. S.s speech was slurred and that he was extremely impaired and incoherent. The motion also had attached to it medication records from juvenile hall which showed that from May 8, 2006, through June 13, 2006, when his medication was changed, T. S. received a capsule of 100 milligrams of Dilantin three times a day. However, two observation reports dated May 31, 2006, and July 12, 2006, that documented various aspects of T. S.s behavior in juvenile hall, fail to disclose that T. S. experienced any mental confusion or suffered any physical symptoms such as slurred speech during the time he was taking 300 milligrams of Dilantin per day.

T. S.s probation report which was dated May 24, 2006, indicated that in an interview with a probation officer, T. S. stated that he did not understand what happened in court, that he did not agree with the deal, and that he felt that his attorney talked him into it. The report also indicated that T. S. suffered a seizure on April 22, 2006, that he was taking Dilantin three times a day, and that he had not suffered a seizure while in custody.

On July 12, 2006, prior to proceeding to disposition, the court conducted a hearing on T. S.s motion. At this hearing, T. S.s mother testified that prior to being housed in juvenile hall, T. S. was taking 100 milligrams of Dilantin per day. T. S.s mother became concerned with T. S.s demeanor on the day he entered a plea in this matter because his speech was slurred. She tried to tell the court that T. S. did not understand what he was doing, but the court did not allow her. The following day when she visited him in juvenile hall, T. S. was not as talkative as usual and he did not appear to understand what happened in court the previous day because he kept asking when he was going to trial. T. S.s mother further testified that she had seen T. S. exhibit mental confusion when she visited him in juvenile hall.

Attorney Trujillo testified that on May 16, 2006, when she went over the waiver of rights form with T. S., he seemed competent to her and was not slurring his speech. In fact, she thought that T. S. was more alert or more responsive that day. She did not force him to enter a plea. Instead, she told him that his mother did not want him to enter a plea and he replied that he was going to do it anyway.

During cross-examination, Trujillo testified that she was surprised that T. S. wanted to enter a plea because he had always said that he wanted to go to trial. She was not aware that he was on medication. She knew T. S.s mother wanted to speak with T.S. prior to him entering a plea, but there was no opportunity for her to do so that day.

After hearing the argument of counsel, the court denied T. S.s motion to withdraw plea. The court then committed T. S. to the DJJ and set his maximum term of confinement as follows: After having considered the facts and circumstances of this offense as well as the previous efforts to rehabilitate the young man and the lack of success in doing so, the Court sets the maximum [term of] confinement time at five years and ten months. . . . (Italics added.)

DISCUSSION

The Motion to Withdraw Plea

T. S. contends the court abused its discretion when it denied his motion to withdraw plea because he showed good cause for doing so and the evidence was more than sufficient to grant the motion. We disagree.

A defendant may move the trial court to set aside a guilty plea for good cause at any time before the entry of judgment. (Pen. Code,  1018.) Good cause means mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free judgment and must be shown by clear and convincing evidence. [Citation.] The grant or denial of such a withdrawal motion is within the sound discretion of the trial court and must be upheld unless an abuse thereof is clearly demonstrated. [Citation.] We are required to accept all factual findings of the trial court that are supported by substantial evidence. [Citation.] (People v. Ravaux (2006) 142 Cal.App.4th 914, 917.)

Here, defense counsel Trujillo testified that when she went over the waiver of rights form with T. S., he seemed competent to her, he was not slurring his speech, and he seemed more responsive. Further, the court observed T. S.s demeanor during the change of plea proceedings and prior to ruling on T. S.s motion, it read the transcript of these proceedings, which does not disclose anything unusual. Moreover, the observation reports from juvenile hall did not indicate that T.S. was experiencing any mental or physical problems because of the Dilantin he was taking. Accordingly, we conclude that substantial evidence supports the courts implicit finding that T. S. was not mentally confused or disoriented when he entered his plea.

Nevertheless, T. S. cites the following circumstances to contend that he provided clear and convincing evidence that he was mentally impaired by the Dilantin when he entered his plea: 1) during the change of plea proceedings, T. S. parroted one of the courts questions in responding to it;^[2]2) The record does not disclose why T. S. initially told the court that he did not want to admit the attempted robbery allegations and then changed his answer and agreed to admit them;^[3]3) in ruling on the motion to withdraw plea, the court did not address the fact that he was taking three times his normal dosage of Dilantin on the date he entered his plea; 4) neither the court, nor the Advisal and Waiver of Rights form, elicited from T. S. whether he was taking any medications which could compromise his ability to waive his rights and admit the petition allegations; 5) T. S. initialed two lines on the Advisal and Waiver of Rights Form that were incorrect;^[4]and 6) T. S.s mother testified that he was suffering the effects of a higher than normal dose of Dilantin and that she tried to tell the court, but was prevented from doing so. We disagree.

Here, although T. S. produced evidence that Dilantin could have certain side effects, he did not produce any evidence showing how likely they were to occur with a dose of 300 milligrams per day. Further, as noted earlier, T.S.s juvenile hall reports did not memorialize that he experienced any mental or physical problems while taking the 300 milligrams of Dilantin. Additionally, the court could reasonably infer that T. S. was medically evaluated at juvenile hall prior to being given the Dilantin and that 300 milligrams was determined to be an appropriate amount to deal with his seizure symptoms. Thus, the only direct evidence that T. S. was mentally confused when he entered his plea came from his mothers testimony. However, the court was not bound by her testimony even if it had not been contradicted. (People v. Boyles (1961) 191 Cal.App.2d 78, 82.) In any event, on appeal we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision. (People v. Gonzalez (2004) 116 Cal.App.4th 1405, 1413.) Moreover, none of the remaining circumstances cited by T. S. undermine the courts finding that T. S. entered his plea freely and voluntarily. Accordingly, we conclude that the court did not abuse its discretion when it denied T. S.s motion to withdraw plea.

T. S.s Maximum Term of Physical Confinement

T. S. contends that in setting his maximum term of confinement, the court did not understand it had discretion to set his maximum term of confinement at less than the maximum time possible. Thus, according to T. S., the matter must be remanded to the juvenile court so that it may properly exercise its discretion. We will reject this contention.

Before January 1, 2004, the maximum term of confinement to DJJ was the maximum period of imprisonment that could be imposed upon an adult convicted of the same offense. However, the 2003 amendment to section 731 altered the confinement determination method. (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1533.)

In addition to calculating the maximum period of adult imprisonment, the juvenile court must also set a maximum term of physical confinement based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court. ( 731, subd. (b).) Thus, under the amended law, the juvenile court has discretion to set a maximum confinement time that is less than the adult maximum term when committing a minor to DJJ. (In re Sean W. ( 2005) 127 Cal.App.4th 1177, 1185.) This second period may be the same as the first. Nevertheless, it is a separate determination. (In re Jacob J. ( 2005) 130 Cal.App.4th 429, 438.) Accordingly, if the juvenile court sets the maximum confinement at DJJ at the maximum term of an adult confinement, the record must show that the juvenile court did so after considering the particular facts and circumstances of the matter before it. (Ibid.)

Here, prior to announcing T. S.s maximum term of confinement, the court stated that it was setting this term based on the facts and circumstances of T. S.s offense, the previous efforts to rehabilitate him, and the lack of success in doing so. This statement clearly indicates that the court was aware of its discretion under section 731 subdivision (b).

T. S. cites the failure of the attorneys to argue for a lesser term, the courts failure to discuss whether a lesser term was appropriate, and the courts failure to specifically address the circumstances in aggravation or mitigation as evidence that the court did not understand its discretion to set a shorter period of maximum confinement. T. S. is wrong.

As noted by the court in In re Jacob J., supra, 130 Cal.App.4th 429, [section 731, subdivision (b)] does not require a recitation of the facts and circumstances upon which the trial court depends, or a discussion of their relative weight[.] (Id. at p. 438.) Further, even assuming that counsels failure to argue for a shorter maximum term of physical confinement indicates that they did not understand that the court had discretion to impose a shorter term, it does not follow from this that the court also misunderstood its discretion. Accordingly, we conclude that the court did not abuse its discretion when it set T. S.s maximum term of confinement at 5 years 10 months.

DISPOSITION

The judgment is affirmed.

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^*Before Gomes, Acting P.J., Dawson, J., and Kane, J.

^[1] Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

^[2] During the change of plea proceedings, when the court asked T. S., Did you put those initials there because you understood each of those rights? T. S. replied, I put those initials there because I understood the rights.

^[3] During the change of plea proceedings, the following colloquy occurred: THE COURT: Do you admit [the attempted robbery] charge? [] THE MINOR: No, sir. [] THE COURT: Okay. You want to go to trial then? [] THE MINOR: I admit, sir.

^[4] T. S. initialed a line that stated he was not given an offer in exchange for his plea, and a line which should have listed T. S.s maximum term of confinement but which was left blank.