Opinion
B202428
10-29-2008
THE PEOPLE, Plaintiff and Respondent, v. ALIPIO BURGOS, Defendant and Appellant.
Victor Sherman for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Roberta L. Davis and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Alipio Burgos (defendant) appeals from a judgment entered after he pled guilty to count 1, sale of cocaine (Health & Saf. Code, § 11352, subd. (a)) and admitted that the cocaine exceeded 20 kilograms by weight. (§ 11370.4, subd. (a)(4)). The trial court sentenced defendant to 13 years in state prison consisting of the low term of three years for count 1, plus 10 years pursuant to a section 11370.4, subdivision (a)(3) weight enhancement based on contraband exceeding 10 kilograms by weight. Defendant contends that the trial court abused its discretion in denying his motion to withdraw his guilty plea. We affirm.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
Count 2, possession for sale of cocaine (§ 11351), a weight enhancement (§ 11370.4, subd. (a)(4)), and count 4, possession of over $100,000 (§ 11370.6, subd. (a)), were dismissed pursuant to the plea bargain.
PROCEDURAL HISTORY
Defendant was charged by information with count 1, sale of cocaine, in violation of section 11352, subdivision (a). The information also alleged that the cocaine exceeded 20 kilograms within the meaning of section 11370.4, subdivision (a)(4).
On July 5, 2006, defendant pled guilty to the sale of cocaine and admitted a 20-kilogram weight enhancement pursuant to section 11370.4, subdivision (a)(4). When the trial court took defendants oral plea, it informed defendant that if he did not return after posting bail, he would receive 20 years in state prison. The Statement of Agreement Between Defendant Alipio Burgos and the Drug Enforcement Administration (statement of agreement) reflects that defendant agreed to plead guilty to a violation of section 11352, subdivision (a) and admitted the 20-kilogram weight allegation pursuant to section 11370.4, subdivision (a)(4). The statement of agreement also represents that the trial court had the right to sentence defendant to three years probation up to a maximum sentence of 20 years in state prison.
At some point, the information was amended by interlineation to allege that the weight of cocaine exceeded 10 kilograms. The interlineation is neither dated nor initialed. On December 20, 2006, defendant was sentenced to 13 years in prison consisting of the low term of three years plus 10 years for a 10-kilogram weight enhancement pursuant to section 11370.4, subdivision (a)(3).
On May 23, 2007, defendant filed a motion to withdraw his guilty plea on the basis that when he pled guilty, the People and the trial court misrepresented to him that the maximum sentence he would face if convicted at trial was 20 years, based on a 20-kilogram weight enhancement when it was actually 15 years, based on a 10-kilogram weight enhancement. In his declaration attached to the motion to withdraw the guilty plea, defendant states: "If I had known that my maximum sentence was actually less than what the judge told me it was, I would not have entered my plea of guilty." In its opposition, the People asserted that after the plea was taken, it was found that the cocaine was 107 grams short of the 20 kilogram weight enhancement. The People argued that defendant had "brokered for 20 kilograms of cocaine and received payment for 20 kilograms of cocaine when he received approximately $210,065," and that "[i]ntercepted conversation of a wiretap prove that [defendant] was brokering a 20 kilogram cocaine deal."
The trial court denied defendants motion and this appeal follows.
DISCUSSION
The trial court did not abuse its discretion in denying defendants motion to withdraw his guilty plea
Defendant contends that the trial court abused its discretion in denying his motion to withdraw his guilty plea because his plea was based on the Peoples and the trial courts misrepresentation of a 20-year maximum sentence when he was subject to a maximum sentence of 15 years. We disagree.
Upon a showing of good cause a court may accept a represented defendants motion to withdraw his or her plea. (Pen. Code, § 1018.) The defendant must show by clear and convincing evidence that he or she was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment, including inadvertence, fraud, or duress. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1207-1208.) The defendant must also show prejudice in that he or she would not have accepted the plea bargain had it not been for the mistake. (In re Moser (1993) 6 Cal.4th 342, 352.) A plea may not be withdrawn simply because the defendant has changed his mind. (People v. Huricks, supra, at p. 1208.) The trial courts decision to deny a defendants motion to withdraw a guilty plea rests in the sound discretion of the trial court and will not be disturbed unless the defendant shows a clear abuse of discretion. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
Defendant admits on appeal that he was not subject to duress or fraud but complains that he relied on what he calls misrepresentations made by the trial court and the People as to his maximum sentence. At oral argument, defendant cited People v. Johnson (1995) 36 Cal.App.4th 1351 (Johnson) in support of his position that he was induced to plead guilty by the trial court and the Peoples misrepresentation. There, the defendant agreed to plead nolo contendere to a charge of grand theft, 16 counts of second-degree robbery, and admitted gun enhancement allegations in return for a sentence of 20 years. When the plea was taken, both the People and defense counsel calculated a sentence maximum of approximately 38 years and the defendant represented that he understood the maximum was about 38 years. The trial court subsequently denied defendants motion to withdraw the plea, which he filed on the basis that his previous attorney had not conducted adequate investigation, he was not advised of the consequences of having 15 prior felony convictions as a result of the plea, and he would not have taken the plea had he realized that there were potential section 654 problems. (Johnson, supra, at p. 1355.)
On a petition for writ of habeas corpus, the defendant claimed ineffective assistance of counsel on the basis that his original attorney miscalculated his maximum potential sentence by 11 years and his counsel for the motion to withdraw failed to discover the mistake and raise it as a ground to withdraw the plea. (Johnson, supra, 36 Cal.App.4th at p. 1355.) He urged that had he known his maximum sentence was 27 rather than 38 years, he would not have pled nolo contendere. The Court of Appeal granted the defendants petition for writ of habeas corpus.
We find that Johnson is distinguishable based on differing standards of review and the factual differences between Johnson and the case at bar. In order to establish ineffective assistance of counsel, a defendant must show that his counsel failed to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate and that he was prejudiced thereby. (People v. Fosselman (1983) 33 Cal.3d 572, 584.) Thus, the Johnson court held that the failure of the defendants trial counsel to correctly calculate his maximum sentence constituted a dereliction of her duty to ensure that the defendant entered his plea with "`full awareness of the relevant circumstances and the likely consequences of his action." (Johnson, supra, 36 Cal.App.4th at p. 1357.) The court also found that the defendant was prejudiced by the conduct of his attorney, because the defendant was substantially induced to accept the plea agreement believing he may have cut his sentence almost by half, from a potential 38 years to 20. (Id. at p. 1358.)
Here, on the other hand, we must determine whether the trial court abused its discretion in denying defendants motion to withdraw his guilty plea. (People v. Huricks, supra, 32 Cal.App.4th at p. 1208.) We cannot say that the trial court acted outside the bounds of discretion in denying defendants motion. We find that defendant has not shown by clear and convincing evidence that the representations made by the People and the trial court overcame the exercise of his free judgment. Section 11370.4, subdivision (a)(3) mandates a sentence of 10 years in state prison for a 10-kilogram weight enhancement. Section 11370.4, subdivision (a)(4) mandates a sentence of 15 years in state prison for a 20-kilogram weight enhancement.
In making their decision on whether to accept a plea bargain, defendants must consider a variety of factors, including the strength of the prosecution case, the circumstances of the crime, and factors personal to the defendant. (People v. Ivester (1991) 235 Cal.App.3d 328, 341 [where defendant failed to give any material weight to the alleged erroneous advice he could not show he was induced to plead guilty].) Here, defendant has not shown by clear and convincing evidence that the representation of a 20-year rather than a 15-year maximum sentence overcame his free judgment. Instead, he got exactly what he bargained for: a sentence less than the maximum of 15 years. In his declaration, he merely states: "If I had known that my maximum sentence was actually less than what the judge told me it was, I would not have entered my plea of guilty." But, the oral plea agreement and statement of agreement reflect that defendant admitted the special allegation pursuant to the 20-kilogram weight enhancement of section 11370.4, subdivision (a)(4). That is, he himself believed that he had sold 20 kilograms of cocaine and that the weight enhancement was correct. Thus, the Peoples case was very strong against him and defendant himself believed that he sold cocaine exceeding 20 kilograms in weight.
Unlike Johnson, there was no dereliction of duty on the part of defendants counsel in calculating the maximum sentence. After the plea was taken, it was discovered that the cocaine was 107 grams short of 20 kilograms, and the correct weight enhancement was inserted into the information. The trial court ultimately imposed a 10-year sentence enhancement as mandated by section 11370.4, subdivision (a)(3) resulting in a total sentence of 13 years.
This is not like People v. Campos (1935) 3 Cal.2d 15, 17, where the defendant, sentenced to death on his plea of guilty, was permitted to withdraw his plea based on a finding that the People represented to his counsel that he would not receive the death penalty. Here, it is undisputed that no conditions were made or attached to defendants plea before the trial court accepted his guilty plea. Moreover, defendant represented that he was entering a guilty plea based on his illegal conduct. And, he agreed that the People would prepare written recommendations as to his sentence and that the trial court was not bound by the sentencing recommendations of the People.
Even were we to accept his argument that his free will was overcome when he entered his plea, defendant has not shown he was prejudiced by the representation that the maximum sentence was 20 years rather than 15 years, since he received a sentence less than both, of 13 years. Once again, his self-serving declaration does not convince us that in light of all other factors, had he known that the maximum was 15 years rather than 20 years, he would not have pled guilty. (In Re Ronald E. (1977) 19 Cal.3d 315, 321 [no prejudice shown where defendant failed to show basis for belief that had he been properly admonished he would have entered a different response to the allegations of the petition].)
We conclude that the trial court did not abuse its discretion in denying defendants motion to withdraw his guilty plea.
DISPOSITION
The judgment is affirmed.
We concur:
BOREN, P. J.
CHAVEZ, J.