Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI800945 John M. Tomberlin, Judge.
H. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Pursuant to a plea agreement, defendant and appellant Reginald Fleming pled nolo contendere to assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). In return, the remaining allegations were dismissed, and defendant was sentenced to the stipulated term of five years in state prison. Defendant’s sole contention on appeal is that the trial court abused its discretion in denying his motion to withdraw his guilty plea. We find no abuse and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the preliminary hearing transcript.
On May 10, 2008, defendant and his codefendants, Delon Jamal Goldsmith and Jahvon Lyrell McDonald, attacked Carlos De La Rosa, who was extremely inebriated, essentially for no reason. When Goldsmith asked De La Rosa for a cigarette, De La Rosa told him that he did not smoke. Goldsmith again asked De La Rosa for a cigarette, and an argument ensued. The altercation briefly stopped when a security guard told defendant and his codefendants to leave. However, as De La Rosa was near his vehicle, defendant and his codefendants approached him and began hitting and kicking him in the face and chest area. As a result, De La Rosa suffered a broken jaw in two places requiring surgery.
Goldsmith and McDonald are not parties to this appeal.
San Bernardino County Deputy Sheriff Adam Salsberry responded to a 911 call. Upon his arrival, he saw the victim on the ground being kicked by three adult Black males. He also heard someone say in an aggressive manner, “What’s up, Blood?” and “Fuck you, Blood.” When Deputy Salsberry ordered them to stop, defendant and his codefendants fled. Deputy Salsberry pursued Goldsmith and McDonald and eventually apprehended them. Another deputy later found defendant a short time later and apprehended him.
At the police station, while in separate interview rooms, all three were yelling things such as, “Don’t say nothing, Blood. I got you, Blood.” Goldsmith had a red bandana in his pocket and a red belt with two buckles with the letters “D” and “L” on them. McDonald had the letters “BIP” tattooed on his neck. A search of Goldsmith and McDonald’s residence revealed papers referring to a gang called the Pasadena Denver Lane Blood. A search of defendant’s residence uncovered letters written to defendant that had “RED-G, ” “Blood, ” and the number “1” on them. A gang expert concluded that both Goldsmith and McDonald were members of the Pasadena Denver Lanes Blood and that defendant was an associate of the gang. He further determined that the assault was committed in association with and for the benefit of the gang.
On July 23, 2008, an information was filed charging defendant and codefendants Goldsmith and McDonald with assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)) (count 1) for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and actively participating in a criminal street gang (§ 186.22, subd. (a)) (count 2). The information further alleged that in the commission of count 1 each defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)).
On September 12, 2008, following a discussion concerning the consequences of pleading guilty, defendant and his codefendants changed their pleas from not guilty to no contest to count 1 and admitted the attendant gang enhancement allegation in exchange for the dismissal of the remaining allegations and a stipulated five-year state prison sentence. At the change of plea hearing, after the court reviewed the plea form with defendant and inquired whether defendant had reviewed the form with his attorney, understood his constitutional rights, the nature of the charges, and the consequences of pleading guilty, the court found that defendant understood the nature of the changes against him and the consequences of his plea. The court also found that the guilty plea and admission were entered into freely and voluntarily and that defendant knowingly and intelligently waived his rights.
On December 3, 2008, defendant filed a motion to withdraw his guilty plea, claiming he was under the impression he would receive a two-year commitment in a fire camp. The People filed their opposition the following day.
The hearing on the motion was held on January 9, 2009. At that time, defendant testified that his trial counsel had pressured him into accepting the plea, telling him that he was facing 17 years if convicted, his innocence did not matter, he did not have a “strong enough case” to beat the charges, and if his codefendants were convicted he would be convicted too. Defendant was 17 years old at the time of the plea and claimed he was not “really knowledgeable” to what his attorney had explained to him and that his attorney did not adequately represent him. He admitted, however, that he thought it was in his best interest to take the plea deal; that he had signed and initialed the change of plea form; that his attorney had reviewed the plea form with him; and that he understood his rights and the nature of the plea. He asserted that he had not wanted to sign the change of plea form, but he had trusted counsel’s advice that it was in his best interest to do so. He further claimed that he had pled guilty because counsel had told him he would be going to fire camp.
Defendant’s trial attorney Wood also testified. He noted that he had gone over the change of plea form with defendant as well as defendant’s rights and consequences of his plea. At no time did defendant indicate he did not understand the plea or his rights. Counsel had recommended fire camp because defendant was a young man in good physical condition who was interested in the program, and he would possibly receive better custody credits. Counsel stated that he had explained to defendant that he had contacted the Department of Corrections and Rehabilitation (the DCR), but the DCR would not confirm whether fire camp offered better custody credits so it was not a guarantee. Counsel wrote on the change of plea form that the court would recommend fire camp; he had explained to defendant that the court could not guarantee fire camp but could only make recommendations to the DCR. Counsel further explained to defendant that it is the DCR that determines where and how a defendant serves his time and to what custody credits a defendant is entitled. Defendant understood what he was told about fire camp. Counsel acknowledged that he did not ascertain from the DCR whether or not defendant was eligible to participate in fire camp.
Counsel also testified that he had advised defendant to take the deal because he thought it was reasonable, considering defendant’s minimum exposure was 12 years and his maximum was 17 years. In plain language, counsel also explained at length the aiding and abetting theory of liability to defendant, who had maintained that, athough he was present with codefendants, he did not participate in the beating itself. Counsel told defendant “that if the jury believed that he was part of the group and that he was partaking in what the group was doing, ... he could be convicted of hitting somebody, even though he didn’t hit them[, ] based upon aider and abettor theory.”
Finding counsel to be more credible, the court denied defendant’s motion to withdraw his guilty plea. The court noted that it did not believe defendant’s testimony “that he was promised he was going to get fire camp.” It further found that counsel had adequately advised defendant the theory of aider and abettor liability. The court concluded that defendant was “suffering from a case of buyer’s remorse....”
On February 6, 2009, defendant was sentenced to the stipulated term of five years in state prison with credit for time served. This appeal followed.
II
DISCUSSION
Defendant contends the trial court abused its discretion in denying his motion to withdraw his guilty plea. We disagree.
Under section 1018, the trial court may, on a showing of good cause, allow a defendant to withdraw a plea of guilty. The defendant has the burden of establishing good cause by clear and convincing evidence. (People v. Wharton (1991) 53 Cal.3d 522, 585.) “‘Good cause’” means mistake, ignorance, fraud, duress, or another factor that overcomes the exercise of free will. (People v. Ravaux (2006) 142 Cal.App.4th 914, 917.) The trial court then considers all factors necessary to obtain a just result, including the rights of the defendant. (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 798.) The trial court must examine whether the defendant understood the nature of the charges, the elements of the offense, the pleas, and the defenses at the time of his plea. (People v. Hunt (1985) 174 Cal.App.3d 95, 103.)
“A decision to deny a motion to withdraw a guilty plea “‘rests in the sound discretion of the trial court”’ and is final unless the defendant can show a clear abuse of that discretion.” (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) The trial court has broad discretion when considering a motion to withdraw a guilty plea, and the facts found by the trial court must be adopted by the reviewing court if they are supported by substantial evidence. (People v. Suon (1999) 76 Cal.App.4th 1, 4.) Therefore, the trial court’s denial must be “arbitrary or capricious or ‘“‘exceed[] the bounds of reason...’”’” to be disturbed on appeal. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
In this case, we cannot say that the trial court abused its discretion in denying defendant’s motion. There is no evidence in the record to indicate that defendant’s trial counsel led him to believe that his plea would guarantee a sentence at fire camp with better custody credits. In fact, there is substantial evidence to the contrary. The plea form indicated a recommendation to fire camp and specifically noted a five-year state prison sentence. Defendant’s initials on the plea form acknowledged that he was advised of his constitutional rights and the consequences of his plea. Defendant also indicated that he had had adequate time to discuss with his attorney his constitutional rights, the consequences of his plea, and any defenses he had against the charges. At the guilty plea hearing, the trial court explained the plea to defendant, the consequences of pleading guilty, and the sentence defendant could receive. The court also took extensive waivers on the record to determine that defendant’s guilty plea was knowing and intelligent. Defendant answered in the affirmative to the court’s inquiry of whether defendant understood the plea, reviewed the plea form with his attorney, understood his constitutional rights, understood that he was voluntarily giving up those rights, and signed the plea form. Defendant also indicated that he understood the possible sentence he could receive. At the conclusion of the change of plea hearing, defendant’s counsel inquired, “I assume the Court will make the fire camp recommendations at the time of sentencing?” (Italics added.) The court responded, “Yes. Just as long as you remember to remind me at that time.”
Moreover, the record reveals that even before the advisements and waivers, at defendant’s counsel’s request, the trial court conducted an Alvernaz hearing. The trial court extensively advised defendant of the consequences of accepting a plea bargain, and the potential consequences of going to trial, while reassuring defendant that he was unlikely to face the maximum penalty given his circumstances. The court explained the Alvernaz case and informed defendant the purpose of the hearing was to avoid any later confusion and to ensure the record showed defendant knew exactly what he could do to resolve the case and what could happen if he proceeded to trial.
In re Alvernaz (1992) 2 Cal.4th 924.
There was no abuse of discretion here. The trial court evidently did not believe defendant’s claim that his trial counsel led him to believe he would definitely receive a sentence at fire camp or failed to adequately explain the aider and abettor theory of liability, and the record provides no basis whatsoever for differing with this evaluation of credibility. Determinations of credibility and the truth or falsity of the facts on which the determinations depend are trial court functions. (People v. Jones (1990) 51 Cal.3d 294, 314.)
Defendant also argues his motion to withdraw his plea should have been granted because a surveillance tape showed people moving around but did not show anyone kicking the victim as described by witnesses. However, defendant has offered no evidence to show that he would not have pled guilty despite this videotape. In addition, there is no basis for concluding the videotape was unavailable before he pled guilty or not considered by defendant and his trial counsel before entering the plea.
“Often the decision to plead guilty is heavily influenced by the defendant’s appraisal of the prosecution’s case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. Considerations like these frequently present imponderable questions for which there are no certain answers; judgments may be made that in the light of later events seem improvident, although they were perfectly sensible at the time. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision.” (Brady v. United States (1970) 397 U.S. 742, 756-757 [90 S.Ct. 1463, 25 L.Ed.2d 747].)
Indeed, courts have rejected as good cause such claims as psychological pressure from counsel, including bad tactical advice (People v. Urfer (1979) 94 Cal.App.3d 887, 892); unforeseen changes in circumstances that make the plea bargain less attractive to the defendant (People v. Powers (1984) 151 Cal.App.3d 905, 917); mistaken expectations of a lenient sentence, even if a result of good faith, but wrong, advice from counsel (People v. Fratianno (1970) 6 Cal.App.3d 211, 221-222, and cases cited therein) or even if the result of a good faith reliance upon nonbinding, nonmisleading remarks of the court or prosecutor (People v. Spears (1984) 153 Cal.App.3d 79, 87-88; People v. Vento (1989) 208 Cal.App.3d 876, 879-880); and a mistaken belief in the strength of the People’s case (People v. Watts (1977) 67 Cal.App.3d 173, 181-183).
“A defendant must understand the nature of the charges, elements of offenses, pleas and defenses which may be available and punishment which may be expected before a trial judge accepts his waiver and plea. [Citation.] However, in determining the facts, the trial court is not bound by uncontradicted statements of the defendant. [Citation.]” (People v. Hunt (1985) 174 Cal.App.3d 95, 103.) In addition, the decision to plead guilty is ultimately made by the defendant, not by his attorney. (See In re Alvernaz, supra, 2 Cal.4th at p. 933.) Here, the trial court determined that defendant understood the charges to which he was pleading and the minimum and maximum sentences.
Defendant has not shown good cause to allow withdrawal of his guilty plea. While section 1018 is to be liberally construed, and a plea of guilty may be withdrawn for mistake, ignorance, inadvertence, or any other factor overreaching defendant’s free and clear judgment, defendant has not established by clear and convincing evidence the facts upon which such ground for withdrawal exist. (People v. Shaw (1998) 64 Cal.App.4th 492, 496.) “The burden is on the defendant to present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty. [Citation.]” (Ibid.)
The record before us affirmatively shows defendant was fully and completely advised of his constitutional rights and of the consequences of his plea; that he understood those rights and consequences; and that he willingly, voluntarily, and knowingly waived those rights and entered his plea and admission with a full and clear appreciation of the consequences. “A plea may not be withdrawn simply because the defendant has changed his mind.” (People v. Nance (1991) 1 Cal.App.4th 1453, 1456 [Fourth Dist., Div. Two].) We find that the trial court’s ruling did not exceed “the bounds of reason, all of the circumstances being considered.” (People v. Giminez (1975) 14 Cal.3d 68, 72.) There was no abuse of discretion.
III
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P. J., KING J.