Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C160274
RIVERA, J.
Defendant appeals after being found guilty of unlawfully driving or taking a motor vehicle pursuant to a plea of no contest. (Veh. Code, § 10851, subd. (a).) He contends on appeal that the trial court misunderstood the scope of its discretion in considering his motion to withdraw his plea. (Pen. Code, § 1018.) Defendant also contends the imposition of a “probation revocation fee” was unauthorized. We shall remand for the trial court to clarify its intent in imposing the fee. In all other respects, we shall affirm.
All undesignated statutory references are to the Penal Code.
I. BACKGROUND
Defendant was charged with unlawfully driving or taking a vehicle. (Veh. Code, § 10851, subd. (a).) The complaint included prior conviction and prison term allegations.
Oakland police officers saw a car being driven without its lights on. The car had four occupants. Dispatch told the officers the car had been stolen. The officers turned on their emergency lights to stop the stolen car. The car slowed down, and someone jumped out of the driver’s seat and ran away. One of the officers chased him, and found defendant hiding behind a vehicle.
This summary of the underlying facts is taken from the probation officer’s report.
Defendant pled no contest to the unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)), and waived his rights to a preliminary hearing, to a jury trial, and to appeal, among other rights, and the trial court found him guilty.
Prior to being sentenced, defendant filed a motion to withdraw his no contest plea “on the grounds that the plea was made in mistake and inadvertence.” Defendant argued that before pleading no contest, he had not read the statements of the three occupants of the car, who all identified a “ ‘Marcus Foster’ ” as the driver. Defendant’s attorney, however, had apprised him of the substance of these statements. After reading the statements themselves, defendant realized he had a viable defense.
The trial court denied defendant’s motion to withdraw his plea and placed him on five years’ probation. Defendant appealed and obtained a certificate of probable cause.
II. DISCUSSION
A. Denial of Motion to Withdraw Plea
Defendant contends the trial court applied the wrong standard in denying his motion to withdraw his plea.
“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.” (§ 1018.) “To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment, ” such as inadvertence, fraud, or duress. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208 (Huricks).) “However, ‘[a] plea may not be withdrawn simply because the defendant has changed his mind.’ [Citations.]” (Ibid.) We review the trial court’s ruling on a motion to withdraw a guilty plea for abuse of discretion (ibid.), and “adopt the trial court’s factual findings if substantial evidence supports them” (People v. Fairbank (1997) 16 Cal.4th 1223, 1254).
The Attorney General contends defendant waived his right to appeal the denial of his motion to withdraw his plea when he entered into the plea agreement. Defendant initialed the box on the waiver form that stated: “I hereby give up my right to appeal from this conviction, including an appeal from the denial of any pretrial motions.” When defendant changed his plea to no contest, the trial court said, “You have [the] right to appeal. Do you understand that?” Defendant replied “Yes, ” and when asked, said he gave up that right.
Despite this waiver, however, “[a] broad or general waiver of appeal rights ordinarily includes error occurring before but not after the waiver because the defendant could not knowingly and intelligently waive the right to appeal any unforeseen or unknown future error.” (People v. Mumm (2002) 98 Cal.App.4th 812, 815.) Moreover, “the issue of whether the guilty plea was informed and voluntarily made will always remain open for appellate review.” (In re Uriah R. (1999) 70 Cal.App.4th 1152, 1157.) This appeal raises issues of whether defendant’s plea was informed and voluntary, as well as alleged error occurring after the waiver. Accordingly, we will consider the appeal on the merits.
Defendant contends the trial court wrongly applied the “clear and convincing” burden of proof in evaluating whether he had shown good cause to withdraw his plea, and that as a result it misunderstood the scope of its discretion. This standard has been applied by both our Supreme Court and by the Courts of Appeal. Most notably, the high court explained in People v. Cruz (1974) 12 Cal.3d 562, 566 (Cruz): “Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.] But good cause must be shown by clear and convincing evidence. [Citations.]” (Italics added.) Subsequently, our Supreme Court reiterated this standard in People v. Wharton (1991) 53 Cal.3d 522, 585 (Wharton), stating, “It is the defendant’s burden to produce evidence of good cause [to withdraw a guilty plea] by clear and convincing evidence.” (See also In re Dennis M. (1969) 70 Cal.2d 444, 457, fn. 10 (Dennis M.).)
Although the trial court did not state it was applying the clear and convincing standard, current law makes clear that is the operative standard, and we presume the trial court applied it. (See People v. Nance (1991) 1 Cal.App.4th 1453, 1456 (Nance).)
Defendant points out that Wharton involved a defendant’s motion to withdraw a guilty plea that had resulted in a prior murder conviction that supplied the special circumstance to support the death penalty in the case before the Supreme Court. (Wharton, supra, 53 Cal.3d at pp. 579, 583-585.) Although Wharton involved a motion to withdraw a guilty plea after judgment, our Supreme Court relied on the standards applicable to motions made under section 1018 to reject the defendant’s challenge to the denial of his motion. (Wharton, at p. 585.)
Defendant argues, however, that these statements may be dicta, and that they contradict earlier California Supreme Court cases, which he contends apply a more relaxed standard to motions to withdraw a plea before judgment. For instance, the court in People v. Campos (1935) 3 Cal.2d 15, 17, stated, “ ‘[The law] will permit a plea of guilty to be withdrawn if it fairly appears that defendant was in ignorance of his rights and of the consequences of his act, or was unduly and improperly influenced either by hope or fear in the making of it.’ ” (Quoting People v. Miller (1896) 114 Cal. 10, 16, italics added; see also People v. Bostic (1914) 167 Cal. 754, 760 [court should permit guilty plea to be withdrawn “where it properly appears” that the guilty plea was made through ignorance or motivated unduly by hope or fear]; People v. McCrory (1871) 41 Cal. 458, 462 [court should allow guilty plea to be withdrawn “when there is reason to believe that the plea has been entered” through inadvertence, lack of deliberation, or hope for mitigated punishment].)
He contends the contradiction arises from the failure of courts to appreciate the different standards to be applied to attempts to withdraw a guilty plea before judgment and attempts to vacate a judgment and withdraw a plea of guilty made after judgment.
A similar argument was raised in Nance. The defendant there argued that the clear and convincing evidence standard of proof had been erroneously adopted, and that the court should use the preponderance of the evidence standard instead. (Nance, supra, 1 Cal.App.4th at p. 1457.) The Court of Appeal rejected this argument, stating: “Countless courts have held that the correct burden of proof to be applied in a prejudgment motion to withdraw a plea of guilty for good cause is clear and convincing evidence. [Citations. [¶] It seems beyond question that the burden of proof necessary to establish good cause for the withdrawal of a guilty plea prior to judgment is by clear and convincing evidence. In addition to the plethora of cases from the Courts of Appeal, the California Supreme Court has embraced it in three opinions. Indeed, this burden of proof is so entrenched in the case law of California that it has taken on the character of bright line law. We stand on the principle of stare decisis. If this burden of proof was erroneously adopted, we leave it to the Supreme Court to abandon it and state a new one.” (Nance, at pp. 1457-1458; see also id. at p. 1456, citing Wharton, supra, 53 Cal.3d at p. 585, Cruz, supra, 12 Cal.3d at p. 566, and Dennis M., supra, 70 Cal.2d at p. 457, fn. 10.)
Nance, supra, 1 Cal.App.4th at page 1457, cited the following cases for this proposition: People v. Cooper (1954) 123 Cal.App.2d 353, 356; People v. Ottenstror (1954) 127 Cal.App.2d 104, 109; People v. Beck (1961) 188 Cal.App.2d 549, 552-553; People v. Parker (1961) 196 Cal.App.2d 704, 708; People v. McDonough (1961) 198 Cal.App.2d 84, 90; People v. Gannaro (1963) 216 Cal.App.2d 25, 28; People v. Caruso (1959) 174 Cal.App.2d 624, 634; People v. Moffett (1955) 137 Cal.App.2d 626, 629; People v. Perry (1963) 220 Cal.App.2d 841, 844; People v. Singh (1957) 156 Cal.App.2d 363, 366; People v. Brotherton (1966) 239 Cal.App.2d 195, 200; People v. Dena (1972) 25 Cal.App.3d 1001, 1008-1009; People v. Waters (1975) 52 Cal.App.3d 323, 328; People v. Urfer (1979) 94 Cal.App.3d 887, 892; and People v. Harvey (1984) 151 Cal.App.3d 660, 666-667. More recent Court of Appeal cases have also noted the correct burden of proof is clear and convincing evidence. (See, e.g., People v. Sandoval (2006) 140 Cal.App.4th 111, 123; People v. Weaver (2004) 118 Cal.App.4th 131, 145-146; In re Vargas (2000) 83 Cal.App.4th 1125, 1142; People v. Castaneda (1995) 37 Cal.App.4th 1612, 1617; Huricks, supra, 32 Cal.App.4th at p. 1207.)
We agree with Nance. Despite the arguably more lenient language of its earlier opinions, for more than 40 years our Supreme Court has held to a rule that the defendant’s burden of proof in moving to withdraw a guilty plea is by clear and convincing evidence. Furthermore, an unbroken line of Court of Appeal cases has for more than 50 years applied the same rule. We reject defendant’s contention that we should break with this authority and adopt a lower burden of proof.
Because we conclude the trial court did not misunderstand the burden of proof, we reject defendant’s contention that the matter should be remanded for the trial court to exercise its discretion under a more lenient standard.
B. Probation Revocation Fee
At the sentencing hearing, the trial court ordered defendant not to possess burglary tools, specifically “jingle keys, ” then announced, “I’m going to order [a] restitution fund fine of $200 and a court security fee of $30 and a theft fine of $10. I’m going to order [a] probation revocation fine of $200, which will be stayed.” The court went on to order conditions of probation. Defendant and his counsel apparently engaged in a conversation as the court spoke, and the court expressed its displeasure and passed the matter.
When it resumed, the court stated, “Let me move forward and complete the sentencing. [¶] I’m going to-I think where I left off was on burglary tools and jingle keys. I’m going to additionally order a $200 restitution fund fine, $30 court security fee, $10 theft fine, $200 probation revocation fine, which will be stayed, [and] $250 probation revocation fee.” The court then again went on to order conditions of probation.
The “Terms and Conditions of Probation, ” apparently filled out by the clerk, reflected a $200 restitution fine (§ 1202.4, subd. (b)), a $200 probation violation revocation restitution fine, which was suspended (§ 1202.44), a $10 theft fine, a $30 court security fee (§ 1465.8, subd. (a)(1)), and a $250 probation investigation fee (§ 1203.1b).
The probation officer’s report had recommended a probation investigation fee of $62.50 and a probation supervision fee of $10 per month pursuant to section 1203.1b, and indicated that defendant had been advised of the right to have a court hearing concerning his ability to pay that amount. Section 1203.1b, subdivision (a) provides in part: “In any case in which a defendant is convicted of an offense and is the subject of any preplea or presentence investigation and report, whether or not probation supervision is ordered by the court, and in any case in which a defendant is granted probation or given a conditional sentence, the probation officer... shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision or a conditional sentence, of conducting any preplea investigation and preparing any preplea report..., [or] of conducting any presentence investigation and preparing any presentence report.... The probation officer, or his or her authorized representative, shall determine the amount of payment and the manner in which the payments shall be made to the county, based upon the defendant’s ability to pay. The probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant’s ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver.” Subdivision (b) of section 1203.1b establishes procedures for a hearing on the defendant’s ability to pay and the payment amount.
Defendant contends the $250 “probation revocation fee” should be stricken because there is no statutory authority for such a fee. The Attorney General argues that the term “probation revocation fee” was either a transcription error or that the trial court misspoke, and that the court intended to impose a $250 probation investigation fee pursuant to section 1203.1b. According to the Attorney General, defendant waived any challenge to the probation investigation fee by failing to raise it below. (See People v. Valtakis (2003) 105 Cal.App.4th 1066, 1068, 1072 [failure to object in trial court to statutory error in imposition of probation fee under section 1203.1b waives matter on appeal].)
On this record, it is not possible to determine what the trial court meant when it imposed a $250 “probation revocation fee.” The first time the court imposed the various fines and fees, it did not include the $250 fee before turning to the conditions of probation. After being interrupted by defendant and his counsel, the court returned to the matter and reimposed the same fees as the first time, but included the $250 fee before turning again to conditions of probation. Furthermore, the $250 amount bears no relationship to the amount the probation officer had recommended be imposed under section 1203.1b, and the trial court did not refer to a probation investigation or probation supervision fee. Despite the clerk’s notation, we have no basis to decide whether the court intended to impose a $250 fee under section 1203.1b, or whether, as defendant suggests, it misspoke in repeating the amount of the $200 probation revocation fine. In the circumstances, we shall remand the matter to the trial court to clarify whether it intended to impose a fee under section 1203.1b.
III. DISPOSITION
The matter is remanded to the trial court to clarify whether it intended to impose a fee under section 1203.1b. In all other respects, the judgment is affirmed.
We concur: RUVOLO, P.J.SEPULVEDA, J.