Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD209615, Leo Valentine, Jr., Judge.
BENKE, Acting P. J.
In December 2008 Marlon Orlando Davis entered a negotiated guilty plea pursuant to People v. West (1970) 3 Cal.3d 595 to two counts of committing a lewd act on a child under 14 years old (Pen. Code, § 288, subd. (a)) and one count of committing a lewd act on a child with substantial sexual contact (§§ 288, subd. (a), 1203.066 subd. (a)(8)). Thirteen other counts involving a total of five victims were dismissed as part of the plea bargain. In January 2009 Davis notified the court that he wished to withdraw his guilty plea. In February the court appointed new counsel who filed a motion to withdraw the plea. The court denied the motion at a hearing in March. It sentenced Davis to a stipulated 10-year prison term: the six-year middle term for a lewd act on a child with substantial sexual contact and consecutive two-year terms (one-third the middle term) on each remaining count. Davis appeals. We affirm.
All further statutory references are to the Penal Code.
BACKGROUND
The following facts pertain to the counts to which Davis pleaded guilty.
Davis's stepdaughter, L.R., was born in 1998. On different occasions, he kissed her arms and lips.
R.R. was born in 1996. When she was sleeping over at L.R.'s house, Davis awakened her by kissing her on the neck and face.
D.C. was born in 1998. When she was sleeping over at L.R.'s house, Davis touched her vagina with his hand.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel lists, as possible but not arguable issues, whether the court abused its discretion by denying Davis's motion to withdraw his plea and whether counsel was ineffective because he did not argue the motion after the evidentiary phase of the plea withdrawal hearing.
We granted Davis permission to file a brief on his own behalf. He has responded, contending (1) the prosecutor offered him a plea bargain including a sentence of six years, not ten; (2) he was forced into pleading guilty; and (3) the victims' statements were coerced and inconsistent and there was no evidence he was guilty.
I. The Prosecutor's Offer
The plea bargain included a stipulated 10-year sentence. There is no evidence in the record of a six-year offer.
II. The Plea Bargain
(A) Background
About one month after Davis entered his guilty plea, he wrote a letter to the court stating he wished to withdraw the plea. He claimed that defense counsel had said he was going to die in prison if the jury found him guilty; counsel had pressured him to signing the change of plea form; Edwina K., Jeffrey T., and Crystal B. had "put up" the victims to accuse Davis; Davis had received written death threats from Jeffrey T.; and someone had told Davis's wife that a detective and Child Protective Service were threatening to take the children if their parents did not accuse Davis.
At the hearing on the withdrawal motion, the court stated that it was aware of this threat before the plea, but the threat was not designed to force a guilty plea. In fact, Jeffery T. believed that 10 years was too short a sentence.
The plea withdrawal motion filed by Davis's new counsel included a declaration by Davis stating the following. Davis "only had ten minutes to discuss this plea [with trial counsel] before the trial was to start with a[] life allegation being added." Davis "felt pressured" by counsel to enter the plea or "die in prison." Davis "did not have time to understand everything about this plea." Counsel told him "to just say yes if [he] was asked." Ralph B., one of the victims' fathers, threatened Davis with death, "saying he would be waiting for [Davis] at Chino or had friends where ever [Davis] was sent to prison." Davis "was also threatened with physical harm by the other members of the Jeffery T[.] family."
At the motion hearing, Davis's original attorney testified as follows. Before the preliminary hearing, the prosecutor said that depending on the outcome of that hearing, she might file an amended information with allegations that would expose Davis to "a life-top sentence." Defense counsel communicated the consequences of this to Davis. After the preliminary hearing, the prosecutor said she intended to file the amended information, but would delay the filing until the day of trial to allow for a possible settlement. About seven months before the trial date, the prosecutor made a 10-year offer. Davis rejected it. Settlement discussions between counsel continued. When the case was sent to a trial department, defense counsel discussed offers and counteroffers with Davis; showed him the proposed amended information, as he had done before; and advised Davis that if the jury found him guilty on all counts, he would receive multiple life terms. Defense counsel told Davis that he could very likely die in prison, but did not threaten him. At the end of the first day in the trial department, the prosecutor made another 10-year offer. Davis rejected it. The next day, the attorneys continued to discuss settlement and defense counsel continued to discuss offers and counteroffers with Davis. The trial court announced that the jury panel was on its way to the courtroom, the court needed to see the pending information so it could advise the panel of the charges, and Davis had 10 minutes to decide whether to plead guilty. At that point, the change of plea form was nearly complete, but counsel needed to explain to Davis some of the consequences of the plea. Counsel did so during a recess. After the recess, Davis entered the guilty plea. Davis later telephoned defense counsel and said that Ralph B. had threatened Davis.
The preliminary hearing took place on February 7 and 8, 2008.
The recess lasted 32 minutes.
After the court heard argument on the withdrawal motion, it explained why Davis's waiver of his rights was knowing and intelligent and his plea was free and voluntary. The court granted Davis's request to address the court. After Davis made a statement, the court allowed him to testify. Davis testified that defense counsel had told him to sign the change of plea form and falsely tell the court that the plea was voluntary. Davis took defense counsel's statement about dying in prison as a threat by counsel to Davis's personal safety.
Both counsel submitted and the court denied the withdrawal motion.
(B) Discussion
To prevail on a motion to withdraw a guilty plea, the defendant must show good cause showing by clear and convincing evidence. (People v. Wharton (1991) 53 Cal.3d 522, 585.) "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... [including] inadvertence, fraud or duress." (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208, citations omitted.) "A plea may not be withdrawn simply because the defendant has changed his mind." (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) The denial of a withdrawal motion will not be reversed absent an abuse of discretion. (Ibid.) "Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged." (People v. Hunt (1985) 174 Cal.App.3d95, 103; People v. Weaver (2004) 118 Cal.App.4th 131, 146.)
The record amply supports the court's conclusion that Davis was properly advised of his constitutional rights before entering the plea; his waiver of those rights was knowing, intelligent, and voluntary; and the plea was not induced by coercion, threats, or time pressure. Furthermore, Davis had prior experience with the guilty plea process. The court did not abuse its discretion by denying his plea withdrawal motion.
III. Evidence of Guilt
Because Davis entered a guilty plea, he cannot challenge the sufficiency of the underlying evidence. (People v. Wallace (2004) 33 Cal.4th 738, 750.)
IV. Conclusion
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738 has disclosed no reasonably arguable appellate issues. Davis has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: AARON, J., IRION, J.