Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. MA036336, Christopher G. Estes, Judge. Affirmed.
Eberhardt & Medicis and John Michael Medicis, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Sonya Won, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Keith Darius Burton appeals from the judgment entered following his negotiated plea of no contest to assault with a firearm upon a peace officer with an admission to having personally used a firearm in the commission of the offense. Prior to sentencing, through new counsel, Burton unsuccessfully sought to have his plea withdrawn. On appeal, Burton contends the trial court abused its discretion in denying his motion to withdraw his plea. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
According to the probation report, Burton was arrested on September 28, 2006 after he approached a Los Angeles County Sheriff’s deputy, produced a gun, and ignored the deputy’s repeated orders to drop it.
On October 2, 2006, Burton was charged by felony complaint with assault with a firearm upon a peace officer (Pen. Code, § 245, subd. (d)(1) – count 1), resisting an executive order (§ 69 – count 2), making a criminal threat (§ 422 – count 3), having a concealed firearm in a vehicle (§ 12025, subd. (a)(1) – count 4), carrying a loaded, unregistered firearm (§ 12031, subd. (a)(1) – count 5), and exhibiting a deadly weapon (§ 417, subd. (a)(1) – count 6). Firearm-use enhancements were alleged as to count 1 under section 12022.5, subdivisions (a) and (d) and section 12022.53, subdivision (b); as to count 2 under section 12022.5; and as to count 3 under section 12022.2, subdivision (b)(1).
Statutory references are to the Penal Code.
On October 25, 2006, represented by attorney Stephen Lonseth, Burton waived a preliminary hearing and agreed to enter a negotiated plea of no contest to assault with a firearm upon a peace officer (count 1) and to admit the accompanying section 12022.5, subdivision (a) firearm-use enhancement. Burton was to be released on his own recognizance under the terms of a Cruz waiver (People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5). In accordance with that waiver, he acknowledged that he understood and agreed that if he appeared for sentencing, he would receive the lower term of four years in state prison and the firearm-use enhancement would be dismissed, but that if he failed to appear for sentencing, he could receive up to 18 years in state prison, at the trial court’s discretion.
Burton was advised that the maximum 18-year prison term consisted of the upper term of eight years for count 1 plus the upper term of 10 years for the firearm-use enhancement.
The record of the plea hearing reflects Burton was advised of, and waived, his constitutional rights and was advised of, and acknowledged he understood the consequences of his plea and the Cruz waiver. Burton stated he was entering his plea knowingly, intelligently, freely and voluntarily, and he had had sufficient time to speak with attorney Lonseth about the plea agreement.
Thereafter, Burton pleaded no contest to count 1 and admitted the firearm-use enhancement pursuant to the plea agreement. Attorney Lonseth joined in the waivers of Burton’s constitutional rights and concurred in the plea and admission. The court found Burton’s waivers, plea, and admission were expressly voluntary, knowing and intelligent. The trial court found and attorney Lonseth stipulated to a factual basis for Burton’s plea and admission based on the police reports. The court continued the matter to November 20, 2006 for sentencing. The remaining counts and accompanying enhancements were to be dismissed at the time of sentencing.
Burton appeared for sentencing on November 20, 2006. Newly retained attorney John Michael Medicis substituted in as defense counsel, and Stephen Lonseth was relieved. The trial court granted the defense motion to continue the matter for a hearing on a motion to withdraw the plea.
On December 8, 2006, attorney Medicis filed a motion to withdraw Burton’s plea (§ 1018). In his supporting declaration, Burton stated he was mentally and physically impaired by a combination of prescription medications that rendered him “confused, dazed, in pain, and shaky” during the plea hearing. As a result, Burton averred, he was unable to think clearly or to concentrate on the proceedings. Burton stated that had he not been under the influence of prescription medications, he would have sought a second opinion before entering his no contest plea.
In his declaration, Burton also asserted attorney Stephen Lonseth did not properly assist him before and during the plea hearing. However, on the day of the hearing on the motion, attorney Medicis informed the court that Burton was withdrawing any claims of ineffective assistance of counsel as grounds for the motion and asked the court to disregard that portion of Burton’s supporting declaration.
The evidentiary hearing on the motion to withdraw the plea occurred on January 19, 2007 before the same bench officer who had presided at Burton’s plea hearing. Burton presented the testimony of Dr. Tin Tun Aung, his treating physician, who prescribed “extra-strength” Vicodin (a pain medication), Soma (a muscle relaxant), and Xanax (an anti-anxiety medication) in September 2006 to relieve Burton’s back pain and anxiety. Dr. Aung testified that drowsiness, dizziness, nausea, and problems with memory, concentration, “decision-making,” and balance were potential side effects of one or more of these medications. According to Dr. Aung, during the two-year period in which Burton was taking these medications, he never complained about any side effects, nor did it appear to Dr. Aung that Burton was suffering any side effects during office visits. If Burton had been suffering any side effects, Dr. Aung testified that he would have instructed Burton immediately to stop taking the medications.
Burton testified that he took Vicodin, Soma, and two doses of Xanax on the morning of the plea hearing because he was particularly anxious. According to Burton, he was “feeling bombarded, very confused” during the plea hearing, and had problems focusing on and comprehending what attorney Lonseth was telling him. However, other than “things would get clearer,” Burton did not “not really” notice any change in his mental condition when he stopped taking the medications shortly after his plea hearing.
The prosecution presented the testimony of Attorney Stephen Lonseth that he and Burton discussed Burton’s medications and possible addiction to them before Burton entered his plea. Attorney Lonseth testified that he advised Burton of his constitutional rights and the consequences of the plea agreement. He further explained to Burton what to expect at the plea hearing, including the types of questions Burton would be asked by the court. In entering his plea, Burton appeared to “kn[o]w what he was doing;” he did not exhibit or report to attorney Lonseth any mental impairment or confusion. During the plea colloquy, the answers Burton gave to the trial court’s questions were entirely his own; attorney Lonseth did not tell Burton how to respond.
After counsels’ argument, the trial court stated it had reviewed the plea hearing transcript and determined that it belied Burton’s claim he was confused or otherwise mentally impaired at the time. Specifically, the court found that Burton’s responses during the plea colloquy were entirely appropriate; nothing indicated he was experiencing any difficulty in understanding the proceedings. Moreover, Burton “actually was a little bit more involved in the plea than we typically see, because what had also been negotiated between [the] parties was an O.R. release pursuant to what we commonly refer to as a Cruz waiver. [¶] So not only did the court advise [Burton] of his rights as to the charge to which he entered the plea, the court also had a dialogue with [Burton] about the admission of the [section] 12022.5 [subdivision (a)] allegation for the purposes of the O.R. release.” After concluding there was no clear and convincing evidence in support of Burton’s motion to withdraw his plea, the court denied it.
On January 24, 2007, Burton was sentenced in accordance with the plea agreement to the lower term of four years in state prison for assault on a peace officer with a firearm (count 1). The accompanying firearm-use enhancement was dismissed pursuant to the Cruz waiver. The remaining counts and firearm-use enhancements were dismissed on the prosecution’s motion.
Burton timely filed a notice of appeal and the trial court granted the certificate of probable cause.
DISCUSSION
Section 1018 provides that a trial court may, upon a showing of good cause, allow a defendant to withdraw a plea of guilty (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796) or no contest (e.g., People v. Brown (1986) 179 Cal.App.3d 207, 213). Mistake, ignorance, and other factors overcoming the defendant’s free will, such as inadvertence, fraud, or duress, constitute good cause to justify withdrawal of a guilty plea. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) The defendant must establish good cause by clear and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562, 566.) Although section 1018 must be liberally construed; “[a] plea may not be withdrawn simply because the defendant has changed his [or her] mind.” (People v. Huricks, supra, 32 Cal.App.4th at p. 1208.)
Section 1018 provides: “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.”
A defendant must understand the nature of the charges, elements of offenses, pleas and defenses that may be available and punishment that may be expected before a trial judge accepts his or her waiver and plea. (In re Birch (1973) 10 Cal.3d 314, 319.)
When a defendant is represented by counsel, the denial of a motion to withdraw a plea is left to the sound discretion of the trial court. (People v. Weaver (2004) 118 Cal.App.4th 131, 146.) A denial of the motion will not be disturbed on appeal absent a showing the court has abused its discretion. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) To reflect such abuse, the trial court’s decision must have been “arbitrary, capricious, or patently absurd.” (People v. Jordan (1986) 42 Cal.3d 308, 316.) “‘Guilty pleas resulting from a [plea] bargain should not be set aside lightly and finality of proceedings should be encouraged.’ [Citation.]” (People v. Weaver, supra, 118 Cal.App.4th at p. 146.)
We reject Burton’s contention the trial court abused its discretion in denying his motion to withdraw his plea because there was clear and convincing evidence he was “under the influence” of his prescription medications and thus was unable to knowingly and intelligently waive his constitutional rights and enter a plea. There was no medical evidence adduced at the motion hearing as to what constitutes “being under the influence” of the medications, that Burton was in fact under the influence at the plea hearing, and, that he therefore would have been unable to knowingly and intelligently enter his plea. In his declaration and hearing testimony, Burton characterized his mental condition as “confused” during the plea hearing. He also claimed to have had difficulty focusing on and understanding attorney Lonseth. To the extent the testimony of Dr. Aung was relevant to Burton’s disputed mental condition, the physician did not list “confusion” as a potential side effect of the prescribed medications. Dr. Aung did testify that Xanax, in particular, could cause problems with concentration and decision making. However, other than Burton’s own testimony, which the trial court was free to disbelieve (see People v. Hunt (1985) 174 Cal.App.3d 95, 103 [“the trial court is not bound by uncontradicted statements of the defendant.”]), there was no evidence that Burton was experiencing these side effects at the time of his plea, and that as a consequence, his exercise of free judgment was overcome. Significantly, Burton, himself, minimized the purported side effects of the prescribed medications in testifying that apart from some increase in clarity, he had noticed little change in his mental condition after he stopped taking the medications.
Although Burton also complains of attorney Lonseth’s ineffective assistance, he expressly withdrew this claim at the plea hearing, and we decline to consider it on appeal.
We agree with the trial court that the transcript of the plea hearing shows Burton knowingly and intelligently entered his plea. At the plea hearing, Burton expressly acknowledged that he understood his constitutional rights, that he was waiving those rights, and that he understood the terms of the plea agreement and the consequences of his plea and Cruz waiver. He further acknowledged that no other promises had been made to him, that he had not been threatened, that he had had sufficient time to consult with attorney Lonseth, and that he was entering his plea knowingly and voluntarily because it was in his best interests to do so. Burton had no questions for the court.
Finally, attorney Lonseth, having greater opportunity to evaluate Burton’s mental condition than did the trial court, was certain that Burton’s decision to plead no contest was knowing and intelligent.
Given Burton’s lack of prior exposure to the criminal justice system, he may well have been nervous and uncomfortable at the plea hearing. However, Burton failed to demonstrate by clear and convincing evidence that he was operating under mistake or ignorance, or not exercising his free will at the time of his plea. The requisite “good cause” justifying the withdrawal of a plea must comprise more than post-plea remorse. (People v. Huricks, supra, 32 Cal.App.4th at p. 1208.) The trial court did not abuse its discretion in denying Burton’s motion to withdraw his plea.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., WOODS, J.