Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM017845
OPINION ON REMAND FROM THE CALIFORNIA SUPREME COURT
Defendant Ryland George Hill, Jr., who is both a college graduate and a veteran of the criminal justice system, contends he was duped into entering a no contest plea to one count of forgery (Pen. Code, § 470, subd. (d)) in exchange for the dismissal of four other counts of forgery. He claims his lawyer had assured him he would be placed on probation, but instead he was sentenced to the upper term of three years in state prison. Finding no abuse of discretion, we affirm the order denying defendant’s request to withdraw his plea. On remand from the California Supreme Court, we also affirm the aggravated term in light of People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825.
FACTS SURROUNDING THE PLEA
The prosecution alleged that defendant was in possession of the victim’s stolen checkbook, forged his signature, and cashed several checks in 2002. He was arrested in Michigan and extradited to California in 2005. On multiple occasions, he expressed his dissatisfaction with trial counsel and his desire to get the California case “out of the way” so he could return to Michigan. After his Marsden motions were denied, he entered a no contest plea to one count of forgery. The only facts material to the issues before us involve the entry of the plea.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Defendant and his trial lawyer testified at an evidentiary hearing on defendant’s motion to withdraw his plea. Defendant testified he graduated from Chico State University, he has no difficulty reading, and he was not under the influence of any drugs or alcohol when he entered his plea. This was not his first plea agreement; he had entered other agreements in the past. But he was hurt, disappointed, and angry when he discussed the prosecution’s offer with his lawyer, who “hollered” at him and told him that he, defendant, was “the master of this situation.” He explained that he felt coerced and threatened, even though he had expressly assured the trial judge that he had read and understood the agreement, he had no questions about it, and he was entering the plea freely and voluntarily. He understood from his lawyer that he was going to be granted probation “and I would be able to get on with my life.”
The plea agreement states: “Probation will be granted only if the sentencing judge finds this to be an unusual case (prison presumptive).” There is an X in the box next to this statement. The agreement also provides, “I do understand that the matter of probation and sentence is to be determined solely by the superior court judge.” Defendant initialed this statement. At his hearing, he stated he had not had an adequate opportunity to review the form before he signed it, and he was unable to get clarification from his lawyer about the meaning of its provisions.
His lawyer contradicted defendant’s recollection of the circumstances surrounding the plea agreement. Although he acknowledged that he had a heated conversation with defendant at another time, he testified that “at the time that Mr. Hill agreed to accept the plea bargain, his response was, ‘I prayed about it,’ and I got something to the effect of, ‘God told me what to do, and I am going to accept the deal’.” The lawyer believed defendant understood the nature of the charges against him and he had no concerns about defendant’s competency.
The lawyer discussed the term “prison presumptive” with defendant and that he would not get probation unless the court found his case to qualify as “unusual.” But he also emphasized, as was his practice, that he could not guarantee probation because the court alone would ultimately make the sentencing decision.
The court ruled as follows: “The court carefully reviewed the testimony in this case. The motion to withdraw the plea will be denied. The record is clear that there was no offer of probation, that there was no county lid offer, that the defendant was prison presumptive, that is he had suffered two prior felonies which would make him ineligible for probation except in an unusual case.
“Any statements that he might be considered for probation were not promises; they were simply statements of fact based upon the legal context of the case.
“The court, in sentencing the defendant, will regard this as a case where he might be eligible for probation, and I will look carefully at whether there are any unusual circumstances that might justify a grant of probation. The motion being denied will proceed to sentencing.”
DISCUSSION
I
Defendant contends the record discloses clear and convincing evidence that he was not properly advised by counsel prior to the entry of his plea, and as a consequence, he was ignorant and mistaken about the possibility that he would receive probation. He understands his burden of proving good cause to withdraw his plea by clear and convincing evidence (People v. Wharton (1991) 53 Cal.3d 522, 585), but he ignores the deferential scope of appellate review and misreads the record.
We must sustain the trial court’s assessment of good cause, absent a flagrant abuse of discretion. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) Here the record belies defendant’s contention that the trial court abused its discretion since there is ample evidence to support the trial court’s factual findings. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) In short, at all times throughout these proceedings, defendant presented himself as intelligent, competent, and able to understand the nature of the charges and the implications of entering into a plea agreement. His lawyer’s testimony supports the trial court’s conclusion that defendant was never promised probation; rather, his lawyer explained the possibility that a judge might grant probation if he found the case unusual but there were no guarantees because the judge had sentencing discretion. The agreement defendant signed stated expressly that he was “prison presumptive.”
A trial court has the discretion to allow a defendant to withdraw a plea to promote justice. (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796-797.) Here the court determined that justice would not be served by allowing defendant to renege on his agreement in the absence of any facts suggesting that he was misled, that because of language or other barriers he did not understand the consequences of his plea, or that his lawyer had failed to adequately represent the law. We can find no abuse of discretion in this record.
II
Defendant contends the court’s imposition of the upper term violated his right to a jury trial as guaranteed by the Sixth Amendment to the United States Constitution. (Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi); Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely); Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham).) As pointed out in Apprendi, Blakely, and Cunningham, the Sixth Amendment jury trial guarantee does not apply to prior convictions that are used to impose greater punishment and defendant concedes the court based its imposition of the upper term in part on his prior convictions. Defendant also acknowledges that “as long as a single aggravating circumstance that renders the defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black, supra, 41 Cal.4th at p. 812.)
Defendant challenges his sentence to preserve his arguments for federal review. He correctly points out that we must follow the law as most recently articulated by our Supreme Court in Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Because the upper term was predicated, at least in part, on his prior convictions, there was no sentencing error.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P.J., HULL, J.