Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR-256200
Dondero, J.
Defendant entered a negotiated plea of no contest to possession for sale of methamphetamine (Health & Saf. Code, § 11378). After defendant’s motion to withdraw the plea was denied, he filed this appeal, which reasserts his challenge to the validity of the plea. We find that the plea was knowingly and voluntarily entered, and affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In light of defendant’s plea our recitation of the facts related to the underlying charged offenses is taken from the probation officer’s report, and will be concise. We will focus on the facts related to the entry of the plea.
On May 28, 2008, defendant was driving a 1998 Nissan Maxima that was detained by Suisun City Police Officers for a traffic violation. During a subsequent search of the vehicle the officers discovered two baggies of marijuana, three plastic baggies containing ecstasy pills, and a digital scale. A plastic baggie of cocaine was found in defendant’s pocket. Defendant claimed the cocaine was for his personal use, although he admitted “selling some pills and marijuana.”
Defendant was charged with two counts of transportation of a controlled substance (Health & Saf. Code, §11379, subd. (a)), two counts of possession for sale of a controlled substance (Health & Saf. Code, §§ 11351, 11378), transportation of not more than 28.5 grams of marijuana ((Health & Saf. Code, § 11360, subd. (b)), and possession of marijuana for sale (Health & Saf. Code, § 11359). After defendant filed a motion to suppress evidence, he appeared at the hearing on the motion and entered the no contest plea to the single charge of possession for sale of methamphetamine. He signed and initialed a waiver of rights form in which he attested that he had been advised all of his constitutional rights and the consequences of the plea, including the maximum term of punishment of three years in state prison. The form also specifies that the only promises made to him were no “initial state prison” term and dismissal of the remaining charges. In response to the trial court’s inquiry at the hearing, defendant stated that he either read the change of plea form or it was read to him by counsel, and he understood and waived his constitutional rights. The court found that the plea was knowing and voluntary. At the sentencing hearing on October 20, 2008, imposition of sentence was suspended and defendant was placed on formal probation for three years, on the condition, among others, that he serve 180 days in county jail.
Defendant moved to withdraw his plea on November 25, 2008, on the ground that he was not informed he would “incur any time in custody” as part of his probation. Defendant testified and filed a supporting declaration in which he asserted that his appointed attorney, Marie Alex, urged him to “take the plea deal” to receive a grant of probation, and informed him that he “would not get any jail time.” Instead, according to defendant, his attorney told him he “would get six months ankle bracelet and no jail time.” Defendant also testified, as he stated in his declaration, that Alex did not read the change of plea form to him, and he did not read the provisions of the form before signing it. Defendant felt that he was induced to take the plea by his attorney for fear that the deal offered by the prosecution would be “off the table.”
Alex testified at the hearing on the motion to withdraw the plea that during meetings with defendant both in and out of the courtroom she did not guarantee that he would avoid a term in jail or receive only an “ankle bracelet.” According to Alex, she read the plea form to defendant, as was her custom. She “thought” defendant read the plea form, but was not sure. On the date the plea was entered, Alex told defendant that “he had a good likelihood of getting ankle monitoring,” but the plea “deal did not say no jail.” She directly contradicted defendant’s assertions in his declaration and testimony that she failed to read him the plea form or represented to him that he would “not get any jail time.” She also explained to defendant that the “plea deal” would “be off the table” if the motion to suppress evidence or the preliminary hearing was heard, and he would be “facing all of the counts rather than just one.”
At the conclusion of the hearing the trial court found that defendant knowingly and voluntarily entered his plea, and denied the motion to withdraw the plea. This appeal followed.
Defendant obtained a certificate of probable cause, so he is entitled to contest the validity of his plea on appeal. (People v. Mendez (1999) 19 Cal.4th 1084, 1088; People v. Puente (2008) 165 Cal.App.4th 1143, 1149.)
DISCUSSION
I. The Validity of the Plea.
Defendant contends that his “plea was constitutionally deficient” because the trial court failed to advise him of “the direct and primary consequences of the plea.” He asserts that the written plea form “does not contain any provisions as to the actual punishment that would, or might, be imposed,” and before he entered the plea neither the court nor his attorney specifically advised him at the hearing that he could receive a “180 day county jail sentence.” He also objects to the failure of the court and counsel to question him “about the contents of the plea agreement at the time the plea was entered.” He therefore argues that the trial court erred by denying his motion to withdraw the plea.
A plea, like any other waiver of constitutional rights, “may be accepted by the court only if knowing and intelligent – made with a full awareness of the nature of the right being waived and the consequences of the waiver. In addition, the waiver must be voluntary.” (People v. Smith (2003) 110 Cal.App.4th 492, 500; see also New York v. Hill (2000) 528 U.S. 110, 114–118; Colorado v. Spring (1987) 479 U.S. 564, 573.) When a defendant elects to waive the fundamental constitutional rights that accompany a trial by pleading guilty “the record must reflect that the defendant did so knowingly and voluntarily – that is, he or she was advised of and elected to refrain from exercising the fundamental rights in question.” (People v. Collins (2001) 26 Cal.4th 297, 308.) Under the governing test, a plea is valid “if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.” (People v. Howard (1992) 1 Cal.4th 1132, 1175; see also North Carolina v. Alford (1970) 400 U.S. 25, 31; People v. Torres (1996) 43 Cal.App.4th 1073, 1082; People v. Knight (1992) 6 Cal.App.4th 1829, 1831–1832.)
“When a defendant pleads guilty or nolo contendere, whether or not the plea is pursuant to a plea bargain, he must be advised of and waive his rights of self-incrimination, confrontation and jury trial [citations], and must be advised of the direct consequences of the plea, including the maximum possible penalty. [Citation.] [¶] The validity of a guilty or nolo contendere plea requires a record demonstrating that the defendant understood the nature of the charges and the direct consequences of conviction, including the possible range of punishment.” (People v. Lytle (1992) 10 Cal.App.4th 1, 4; see also People v. Zaidi (2007) 147 Cal.App.4th 1470, 1481; People v. Crosby (1992) 3 Cal.App.4th 1352, 1354–1355.) “ ‘The traditional “direct consequences” of a plea are those which follow inexorably from the plea....’ [Citation.]” (People v. Barella (1999) 20 Cal.4th 261, 270.)
A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. (In re Vargas (2000) 83 Cal.App.4th 1125, 1142; People v. Castaneda (1995) 37 Cal.App.4th 1612, 1616–1617.) “Section 1018 provides that, ‘... 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.’ Good cause must be shown for such a withdrawal, based on clear and convincing evidence.” (People v. Mickens (1995) 38 Cal.App.4th 1557, 1561; see also People v. Hunt (1985) 174 Cal.App.3d 95, 102–103.) “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. [Citations.] Other factors overcoming defendant’s free judgment include inadvertence, fraud or duress.” (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) “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.” (People v. Shaw (1998) 64 Cal.App.4th 492, 496.) “When the ground for withdrawing the guilty plea is the omission of advisement of the consequences of the plea, the defendant must show ignorance: that he was actually unaware of the possible consequences of his plea.” (People v. Castaneda, supra, at p. 1619.) And where, as here, judgment has been entered, withdrawal of a plea is an “ ‘exceptional remedy,’ ” granted “ ‘only upon a strong and convincing showing of the deprivation of legal rights by extrinsic causes.’ [Citation.]” (Id. at p. 1617.)
“When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] On appeal, the trial court’s decision will be upheld unless there is a clear showing of abuse of discretion.” (People v. Shaw, supra, 64 Cal.App.4th 492, 495–496; see also People v. Mickens, supra, 38 Cal.App.4th 1557, 1561.) “Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.” (People v. Hunt, supra, 174 Cal.App.3d 95, 103.)
Defendant’s argument is essentially that the trial court and his attorney either inadequately advised him of the consequences of the plea – that is, a potential county jail term as a condition of probation – or somehow failed to comply with a representation made that he would not receive any term of incarceration. While defendant was not advised of the precise penal consequence that ultimately befell him, that form of admonition is not required. “In Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605 [119 Cal.Rptr. 302, 531 P.2d 1086],” the California Supreme Court “held that a defendant who pleads guilty ‘shall be advised of the direct consequences of conviction such as the permissible range of punishment provided by statute....’ ” (In re Moser (1993) 6 Cal.4th 342, 351.) The “ ‘direct consequences’ ” of a plea “include: the permissible range of punishment provided by statute [citation]; imposition of a restitution fine and restitution to the victim [citation]; probation ineligibility [citation]; the maximum parole period following completion of the prison term [citation]; registration requirements [citation]; and revocation or suspension of the driving privilege [citation].” (People v. Moore (1998) 69 Cal.App.4th 626, 630; see also People v. Arnold (2004) 33 Cal.4th 294, 309–310.)
Here, the plea form signed by defendant recited the maximum term of punishment of three years in state prison. Defendant attested on the plea form that his attorney explained the specified consequences of the plea to him. The plea form also reflects defense counsel’s representation that she personally read the provisions of the form to defendant and concurred in his decision to waive his rights and enter the plea. “[A] court may rely upon a defendant’s validly executed waiver form as a proper substitute for a personal admonishment. (People v. Castrillon (1991) 227 Cal.App.3d 718, 722 [278 Cal.Rptr. 121] [enforcing, as part of a plea agreement, defendant’s written waiver of the right to appeal the denial of a motion to suppress pursuant to [Penal Code section] 1538.5, subd. (m)]; cf. In re Ibarra (1983) 34 Cal.3d 277, 286 [193 Cal.Rptr. 538, 666 P.2d 980] [‘[A] defendant who has signed a waiver form [waiving Boykin-Tahl rights] upon competent advice of his attorney has little need to hear a ritual recitation of his rights by a trial judge.’].) ‘Only if in questioning the defendant and his attorney the trial court has reason to believe the defendant does not fully comprehend his rights, must the trial court conduct further canvassing of the defendant to ensure a knowing and intelligent waiver of rights.’ [Citations.]” (People v. Panizzon (1996) 13 Cal.4th 68, 83; see also People v. Gutierrez (2003) 106 Cal.App.4th 169, 175.) At the change of plea hearing, defendant repeated that he either read the change of plea form or it was read to him, and he understood his rights; he did not indicate to the court in any way that he failed to comprehend the consequences of the plea. At the subsequent hearing on the motion to withdraw the plea, defendant’s counsel confirmed that she read the plea form to defendant, which contained specific reference to a potential three-year state prison term – although “no initial state prison” was also promised in the agreement.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
Thus, the evidence establishes that defendant was made aware of the “permissible range of punishment” he faced – from probation to incarceration in state prison for three years – which is all the law demands. “[T]he law requires only that a defendant be advised generally of the ‘ “permissible range of punishment provided by statute” ’ [citations], not specifically about each of the components of which a hypothetical maximum punishment might consist. ‘Common sense dictates that the court need only apprise defendant of the sentence possibilities in a general fashion. It is not necessary that defendant be given a detailed lecture on criminal procedure as it pertains to all the various dispositional devices available.’ [Citation.]” (People v. Sorenson (2005) 125 Cal.App.4th 612, 621.) Defendant has “ ‘no basis for complaint’ ” where the punishment he received was less than the maximum which was disclosed to him and he agreed upon prior to entry of his plea. (Id. at pp. 621–622; see also People v. Collins (2003) 111 Cal.App.4th 726, 732; People v. Nystrom (1992) 7 Cal.App.4th 1177, 1181; People v. Knight, supra, 6 Cal.App.4th 1829, 1832–1833.)
Defendant was not misadvised of the minimum potential term of imprisonment for the offense to which he entered his plea, as occurred in People v. Tabucchi (1976) 64 Cal.App.3d 133, 142 (Tabucchi), a case on which he places great reliance. In Tabucchi, the defendant was not informed that the offense to which he pleaded guilty required him to serve a mandatory minimum of three years of his sentence, rather than one-third of the minimum term, prior to becoming eligible for parole. The court in Tabucchi declared that the minimum term for parole eligibility is a direct rather than a collateral consequence of the guilty plea, and “in the usual case, assuming good behavior in prison, a defendant will be eligible for parole after serving one-third of the minimum term of punishment....” (Id. at p. 143.) The court therefore concluded that because the record did not reveal the defendant was aware he was required to serve three years in state prison before he was eligible for parole, instead reflecting that the defendant had entered his plea on the mistaken belief that he would be eligible for parole in 20 months, he had sustained his burden of showing good cause, and thus the trial court had abused its discretion in not permitting the defendant to withdraw his plea of guilty. (Id. at p. 144.)
In Tabucchi, a case upon which defendant here heavily relies, the defendant pleaded guilty to one count of transportation and sale of phencyclidine, a controlled substance. (Health & Saf. Code, former § 11379.) The trial court dismissed additional drug-related charges that had been filed against him and his wife. He was sentenced to five years to life in state prison. (Tabucchi, supra, 64 Cal.App.3d 133, 137.) At the time, the Indeterminate Sentence Law provided for parole eligibility upon the completion of one-third the minimum term. (Pen. Code, former § 3049.) The offense to which the defendant pleaded guilty, however, required him to serve a minimum of three years of his sentence prior to becoming eligible for parole. (Health & Saf. Code, former § 11379, subd. (a).) The defendant had not been advised of this mandatory minimum term of imprisonment. (Tabucchi, supra, at p. 142.)
Tabucchi is unpersuasive to us in the present case for several reasons. First, it is no longer good law. The Tabucchi opinion has been expressly disapproved by the California Supreme Court. (People v. Barella, supra, 20 Cal.4th 261, 272.) The court in Barella noted that “a significant body of federal case law decided after Tabucchi – including the United States Supreme Court’s decision in Hill v. Lockhart [(1985)] 474 U.S. 52, 55–56 [88 L.Ed.2d 203, 106 S.Ct. 366, 368–369] – has held that a trial court is not obligated to advise a defendant regarding parole eligibility factors as a condition of a valid guilty plea. Tabucchi’s holding that advice as to parole eligibility ‘is constitutionally required’ (64 Cal.App.3d 133, 143) also is inconsistent with our own subsequent holding that ‘[u]nlike the admonition of constitutional rights... advisement as to the consequences of a plea is not constitutionally mandated.’ (People v. Walker [(1991)] 54 Cal.3d 1013, 1022; see also People v. Reed (1998) 62 Cal.App.4th 593 [72 Cal.Rptr.2d 615] [criticizing Tabucchi as being inconsistent with Walker and federal authorities].)” (Id. at p. 271.) The court further reasoned that following the result in Tabucchi would deviate from the “direct consequence” standard articulated in Bunnell v. Superior Court, supra, 13 Cal.3d 592, 605, and impose upon the trial courts a vague, impractical test that demands the unduly burdensome task of advising defendants of a myriad of contingencies related to sentencing that are unnecessary to ensure the voluntariness of a guilty plea. (Barella, at pp. 271–272.)
Moreover, defendant was aware that the minimum punishment was probation, with associated conditions, including jail time, and the maximum term was three years in state prison if he violated probation. The trial court was justified in finding that defendant was not promised or misadvised that he would avoid a county jail sentence. Although defendant asserted that he was told he would not receive any time in jail, his attorney testified to the contrary. Defense counsel explicitly indicated that she explained the significance of the plea as specified in the form: that defendant “wasn’t going to go to prison,” but “could, in fact, go to jail.” For purposes of defendant’s motion to withdraw his plea, the court was entitled to accept the testimony of counsel and the representations of defendant on both the plea form and at the change of plea hearing, rather than his subsequent declarations that he was neither advised of nor understood that he faced the potential for a county jail term. The sole evidence that defendant failed to understand the consequences of his plea consisted of his own assertions in support of his motion to withdraw the plea – which were contrary to the position he took at the time the guilty plea was given – and his counsel’s testimony. Defendant’s attorney adamantly denied that she told defendant he “would not get any jail time.” “It is entirely within the trial court’s discretion to consider its own observations of the defendant in ruling on such a motion. [Citation.] The court may also take into account the defendant’s credibility and his interest in the outcome of the proceedings.” (People v. Ravaux (2006) 142 Cal.App.4th 914, 918.) The trial court’s ruling that the plea was entered with knowledge of its consequences is supported by substantial evidence and was not an abuse of discretion. (Id. at p. 919.)
Finally, nothing in the record indicates that the plea was the product of coercion, duress, deception, or other promises or irregularities which deprived defendant of the right to trial on the merits, as required for a successful appeal seeking to withdraw a guilty plea. (People v. Lumbley (1937) 8 Cal.2d 752, 759–760; People v. Shanklin (1966) 243 Cal.App.2d 94, 100.) “As a general rule, a plea of guilty may be withdrawn ‘for mistake, ignorance or inadvertence or any other factor overreaching defendant’s free and clear judgment.’ [Citations.]” (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 797; see also People v. Mortera (1993) 14 Cal.App.4th 861, 864; People v. Hunt, supra, 174 Cal.App.3d 95, 103.) A guilty plea is involuntary and thus invalid if induced by promises or threats. (People v. Collins, supra, 26 Cal.4th 297, 312.) However, involuntariness is found only if by threats or coercion the “ ‘defendant’s choice to confess was not “essentially free” because his will was overborne.’ [Citation.]” (People v. Jones (1998) 17 Cal.4th 279, 296; see also People v. Ingels (1989) 216 Cal.App.3d 1303, 1309.) We independently review the totality of the circumstances to determine whether the plea was voluntary. (People v. Guzman (1993) 14 Cal.App.4th 1420, 1422.)
Defendant was neither misled nor coerced into the plea by the knowledge that the offer would be withdrawn if he proceeded with the hearing on the motion to suppress. The negotiated disposition was on terms exceptionally favorable to defendant. Most of the charges were dismissed, despite the seizure of multiple controlled substances, along with a digital scale, from defendant and his vehicle. Defense counsel merely conveyed the prosecution’s offer to defendant and advised him of the fact that the offer “was going to be taken off the table if we didn’t take it before the hearing” on the suppression motion – a common policy in criminal proceedings. That defendant was displeased with the apparent necessity of entering into a negotiated disposition before he had the opportunity to challenge the search does not render the plea involuntary. “We distinguish ‘involuntary’ from ‘unwilling’ acceptance of counsel’s advice; it is ‘involuntary’ if done without choice or against one’s will, unwillingly done if through only reluctance.” (People v. Knight (1987) 194 Cal.App.3d 337, 344.) Defendant’s plea may have been reluctantly entered, but the evidence does not suggest that it was based on mistake, ignorance, inadvertence or any other factor overreaching his free and clear judgment. We conclude that the plea was both knowing and voluntary, and therefore the trial court did not err by denying the motion to withdraw the plea. (In re Mosley (1970) 1 Cal.3d 913, 926–927; People v. Blomdahl (1993) 16 Cal.App.4th 1242, 1249; People v. Waters (1975) 52 Cal.App.3d 323, 331.)
II. Inadequate Assistance of Counsel.
Defendant presents the related claim that he was “denied effective of counsel” due to the failure of his attorney to advise “him of the direct and primary consequences of the plea.” “In order to establish ineffective assistance of counsel, a defendant must not only show his or her counsel failed to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate but also that he or she was prejudiced thereby. [Citations.] ‘Where a defendant has been denied the effective assistance of counsel in entering a plea of guilty, he is entitled to reversal and an opportunity to withdraw his plea if he so desires. [Citations.]’ [Citation.] ‘To be valid, guilty pleas must be based upon a defendant’s full awareness of the relevant circumstances and the likely consequences of his action. [Citation.]’ [Citation.]” (People v. Johnson (1995) 36 Cal.App.4th 1351, 1356.)
We do not find any ineffective assistance of counsel on the record before us. Defense counsel negotiated an advantageous disposition for defendant that resulted in dismissal of all but one of the multiple drug charges against him. According to counsel, she passed on the plea offer to defendant, which she considered to be a “pretty good deal,” but did not coerce him into accepting it. The plea form, which counsel read to defendant, explained the range of potential punishment. As we read the record, counsel did not incorrectly calculate defendant’s maximum potential sentence before permitting him to enter a plea or misadvise him of the potential punishment he faced. While the recollections of defendant and his attorney conflict, defendant’s approval of the plea form, his representations when he entered the plea, and his counsel’s testimony at the subsequent hearing all support the finding that he was not promised a grant of probation free of county jail time. We reject the claim that defendant was denied effective assistance of counsel.
Accordingly, the judgment is affirmed.
We concur: Marchiano, P. J., Banke, J.
Recognizing the “critical importance to a defendant of the right to parole,” as well as “the widespread knowledge of persons charged with crime concerning the ‘one-third minimum time’ parole policy of the Adult Authority in usual cases,” the court in Tabucchi held that “notice to a defendant of any statutorily required minimum term for parole eligibility... contrary to and of greater duration than the usual Adult Authority policy based on Penal Code section 3049, is constitutionally required as a prerequisite to entry of a guilty plea under the rationale of In re Tahl, supra[, 1 Cal.3d 122]. Such a minimum term for parole eligibility must be deemed a direct rather than a collateral consequence of the guilty plea. [Citations.] [¶]... [¶]... Since it has been a matter of common knowledge for many years that in the usual case, assuming good behavior in prison, a defendant will be eligible for parole after serving one-third of the minimum term of punishment, [the defendant’s] assertion that he was under such an impression when he entered his plea is plausible on its face.” (Tabucchi, supra, 64 Cal.App.3d 133, 143, original italics.)
The court in Tabucchi concluded that because the record did not reveal the defendant was aware he was required to serve three years in state prison before he was eligible for parole, instead reflecting that the defendant had entered his plea on the mistaken belief that he would be eligible for parole in 20 months, he had sustained his burden of showing good cause, and thus the trial court had abused its discretion in not permitting the defendant to withdraw his plea of guilty. (64 Cal.App.3d 133, 144.)