Opinion
D071307
07-28-2017
THE PEOPLE, Plaintiff and Respondent, v. LUIS ENRIQUE BARRADAS, Defendant and Appellant.
Ava R. Stralla, 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 and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD266002) APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed. Ava R. Stralla, 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 and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Luis Enrique Barradas was charged with six counts of lewd acts on a child (Pen. Code, § 288, subd. (a); counts 1-6) and one count of felony child abuse (§ 273a, subd. (b); count 7). During the preliminary examination, Barradas decided to plead guilty. Under the plea agreement Barradas pleaded guilty to counts 1 and 3, and count 7 as a misdemeanor. The court agreed to a 10-year "lid" on any sentence. The remaining charges were dismissed.
All further statutory references are to the Penal Code unless otherwise specified.
Following the guilty pleas Barradas filed a motion to withdraw his guilty pleas. The motion represented that the 10-year-old victim had recanted her statements. The motion was accompanied by a notarized affidavit from the victim. The trial court denied the motion. Barradas was sentenced to a 10-year prison term.
Barradas filed a timely notice of appeal and obtained a certificate of probable cause.
Since the facts of the offenses are not relevant to the issues on this appeal we will omit the traditional statement of facts. --------
DISCUSSION
A. Background
After the guilty pleas in this case, several documents were prepared and signed by the victim. They recanted the prior statements and her testimony at the preliminary hearing. The victim's new statements indicated she had lied earlier because she had heard stories about bad things men do to little girls and did not want to live with Barradas because he might do those things to her.
The record also contains information that Barradas admitted the offenses when talking to police and again admitted them in talking with the probation officer. The defense position was that Barradas had made admissions to police in order to avoid immigration problems.
At the end of the hearing on the motion the trial court rejected the alleged recanting by the victim. The court found that the victim had been pressured by the appellant's family. The court found her testimony at the preliminary hearing to be highly credible. The court also found the notarized letter from the victim to be stilted and not the language of a 10-year-old child. Summarizing the court's analysis, it said:
"I want to flag two things. Number 1, really? This 10-year-old girl is going to go to a notary and make a notarized statement? She was made to do that by -- probably by the aunt. I don't know. [¶] I think I would offer that the family members who have caused these statements and declarations to be made should be ashamed of themselves, because they have thrown this little girl under the bus in order to try to get Mr. Barradas off the hook. And that's exactly what I think happened in this case. [¶] Her letter to me dated June 21, 2016, after the plea, but before any of this, is heart-wrenching, because it sounds to me like a little girl baring her soul and expressing in language that is consistent with her age and her development her distress over what happened. And she says, I feel bad that this occurred, because if I would have told my aunt that he was doing bad stuff to me and to my cousins and brothers, this would have stopped a long time ago. [¶] Later on she says, one reason why I don't want this to happen to someone else because they don't deserve this kind of stuff. My wish is for -- that he won't do this stuff again to other girls. It is not a good thing that someone has to go through a lot of bad stuff in their lives. [¶] Wow. That is
spoken from the heart. [¶] The language in the notarized statement is strikingly stilted and does not bear those spoken-from-the-heart indicia. [¶] The record is clear that -- well, I find as a matter of fact that [the victim] told the truth in her testimony. I find that her statements recanting that testimony were in all probability coerced by family members who were trying to help this man out.
B. Legal Principles
Section 1018 provides in part: "On application of the defendant at any time before judgment . . . , the court may . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. . . . This section shall be liberally construed to effect these objects and to promote justice." In order to establish good cause, the defendant has the burden to show by clear and convincing evidence that he or she was operating under mistake, ignorance, or any other factor overcoming the exercise of his or her free judgment, including inadvertence, fraud or duress. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1207-1208.) The defendant must show that he or she would not have entered the plea in the absence of the mistake. (In re Moser (1993) 6 Cal.4th 342, 352.) A defendant may not withdraw a plea because he or she has changed their mind. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)
Where a witness has, or may recant the testimony previously given, the trial court may examine the persuasiveness of the recantation. Where appropriate, the court may view such postplea recanting with some skepticism and deny a motion to withdraw a plea where the material presented is not persuasive. (People v. Breslin (2012) 205 Cal.App.4th 1409, 1415-1417.)
We conduct a two-part review of a decision to grant or deny a motion to withdraw a guilty plea. We accept the trial court's factual findings if supported by substantial evidence. Once the facts are determined we review the court's decision under the abuse of discretion standard. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
C. Analysis
Applying the proper standards of review, we conclude the trial court did not abuse its discretion in denying the motion to withdraw the guilty pleas. First, the court clearly rejected the postplea "recanting" of the victim. The court found they were the product of family pressure and not the true statements of the victim. The court found her testimony at the preliminary hearing to be credible and essentially found the new statements to be a fabrication. Thus, Barradas did not meet his burden of proof to show mistake by clear and convincing evidence.
Barradas does not challenge the entry of the pleas, nor does he contend he was pressured or somehow mistaken in his understanding of the process. The trial court carefully, and thoroughly reviewed the change of plea with Barradas. The sole claim on this appeal is that the victim has recanted and he would not have pled guilty if he knew she would do that. However, the court found the recanting to be the fabrication of the defendant's family, and that it was not credible. Considering the trial court's factual findings, which are supported by substantial evidence in this case, the court acted well within its discretion in denying the motion to withdraw the pleas.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J. WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.