Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 07CF2107 Patrick Donahue, Judge.
James M. Crawford for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
The court did not abuse is discretion when it declined to permit defendant to withdraw his guilty plea. Defendant has not shown ineffective assistance of counsel. We affirm.
I
FACTS
Defendant Rudy Noel Castellon was charged with three counts of attempted murder, three counts of assault with a semiautomatic firearm, one count of shooting at an occupied motor vehicle, one count of shooting from a motor vehicle and one count of possession of a deadly weapon as well as numerous enhancements. He changed his plea from not guilty to guilty of one count of attempted murder and two of the enhancements. The handwritten portion of the guilty plea form states he offered the following facts as the basis of his guilty plea: “In Orange County, California, on 6-17-07, I did willfully & unlawfully and with premeditation & deliberation, and the specific intent to kill, attempt to murder R. Pinones, a human being; I personally used a firearm when I attempted to kill R. Pinones and I personally inflicted great bodily injury on R. Pinones when I attempted to kill him.”
Before defendant entered his guilty plea on March 24, 2010, the court explained the People’s offer as follows: “It appears as though what is anticipated is that you are going to be pleading guilty to attempted murder with premeditation and deliberation. [¶]... [¶] That carries with it life with the possibility of parole, and the minimum on that is a seven year term, okay? And that is pursuant to Penal Code section 3046. In addition you are going to be admitting some enhancements that add an additional 13 years to that. [¶] As part of the agreement that you have reached with the People, the remaining counts are going to be dropped against you and the 12022.53’s that add 25 to life are going to be dropped against you. That is your understanding, correct?” Defendant responded “Yes.” The court continued: “So if you are going to agree, you know, the agreement is you plead guilty to the 664-187 with premeditation and deliberation, and that you admit a 12022.5 (a) and a 12022.7 (a). The 12022.5 (a) adds an additional 10 years. That is the deal that the People are offering to you. And the 12022.7(a) adds an additional three years. [¶] In consideration of that, what the People are doing is they are dismissing all the other counts and all the other enhancements under 12022.53.” Defendant said he understood the “deal.”
Amidst the lengthy colloquy between the court and defendant, the following was asked by the court and answered by defendant:
“Q. Before you came into court here, did you read the form completely?
“A. Yes.
“Q. And do you understand what you read?
“A. Yes.
[¶]... [¶]
“Q. Any questions you had about the form, were you able to talk to Mr. Hill about those questions?
“A. Yes.
“Q. And did he answer those questions for you?
“A. Yes.”
The court continued:
“Q. The only promises that are being made are what is contained in the form that you have in front of you; is that correct?
“A. Yes.”
On October 1, 2010, the court heard evidence and argument on defendant’s motion to withdraw his guilty plea. Defendant testified that he and his lawyer “were talking about getting a deal without life.” When counsel told him the People would do “20, ” defendant says he asked about a life term and counsel told him “that just because there is a lot of life charges that it might come up in court as a formality or technicality.” Defendant told the court it was “a straight 20 years” with “no life attachment.”
Counsel also testified and told the court about defendant’s case: “The inherent problem in the case was that Mr. Castellon confessed to the police officers when he was first confronted with the charges. He then had a private attorney, Mr. Anthony, who ordered a pre-plea report to be prepared, during which Mr. Castellon again confessed to all the charges, and on top of that submitted a 12-page handwritten statement where again he confessed to all the charges. [¶] During my discussions with Mr. Castellon it had been my opinion that there was two ways of fighting the case. One was that it was self-defense, and unfortunately Mr. Castellon’s own statements clearly established that there wasn’t — there wasn’t any imminent danger, imminent threat. He left the area where the initial confrontation happened, went and got a gun from a person he knew and then returned to the area where he confronted the victims in the case.” Counsel continued to talk about the charges, and then stated: “[S]ince he shot from a car into another car, it was not a Penal Code 245. It was a Penal Code 246. And unfortunately the discharge of a firearm under 12022.53 would have been applicable to this case because of the 246. So, hence, in my opinion, which I repeatedly stated to Mr. Castellon, if every single thing broke in our way and the jury agreed it was not an attempt murder and it was just an assault with a deadly weapon it was still going to be at the very least the low term of that which is three plus the 25 years to life. So if everything went his way after the trial, 28 to life.”
The court found defendant did not meet his burden of showing he did not make a knowing, intelligent and voluntary waiver. Defendant’s motion to withdraw his plea was denied.
II
DISCUSSION
“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.” (Pen. Code, § 1018.) “Withdrawal of a guilty plea is left to the sound discretion of the trial court. A denial of the motion will not be disturbed on appeal absent a showing the court has abused its discretion. [Citation.]” (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) “A plea may not be withdrawn simply because the defendant has changed his mind. [Citation.]” (Ibid.)
A reviewing court cannot disturb an exercise of discretion unless it is “arbitrary, capricious, or patently absurd.” (People v. Jordan (1986) 42 Cal.3d 308, 316.) Here defendant knowingly, intelligently and voluntarily waived his rights in order to secure a significantly shorter sentence. We cannot find the court’s exercise of its discretion in refusing to permit defendant to change his mind was arbitrary, capricious or patently absurd under the facts shown in this record.
With regard to defendant’s claim of ineffective assistance of counsel, judicial scrutiny of counsel’s performance must also be highly deferential. (Strickland v. Washington (1984) 466 U.S. 668, 689.) “In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation] Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 214-215.) If the defendant fails to establish either component by a preponderance of the evidence, the claim of ineffective assistance fails. (People v. Harris (1993) 19 Cal.App.4th 709, 714.)
While defendant now claims defense counsel promised him any discussion of a life sentence by the court amounted to a formality or technicality, the record before us is clear that the court not only explained defendant would receive a life sentence, it inquired of defendant whether or not any promises other than those on his guilty plea form had been made. Defendant told the court no other promises had been made. The record also shows that defense counsel was able to negotiate a very favorable result for defendant. Defendant’s changing his mind about wanting that result does not equate to ineffective assistance of counsel.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.