Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM026296
HULL, J.Defendant entered a negotiated plea of no contest to attempted first degree burglary (Pen. Code, § 664/459) and was sentenced to state prison for two years. He appeals, contending the trial court erred in failing to rule on his request to withdraw his plea and failing to appoint substitute counsel to investigate and pursue a motion to withdraw his plea. We find no error and affirm the judgment.
Facts and Proceedings
In light of defendant’s no contest plea, the facts are taken from the probation report.
On January 8, 2007, Timothy and Kristina L. left their residence with the garage door closed and drove to a “semi tractor/trailer” to warm it up. When they returned to the residence, they found the garage door open. As they pulled into the driveway, they saw an adult male exit the garage and run away. Police were called and defendant was seen running along railroad tracks behind his home. He was arrested. It does not appear any items were taken from the victims’ residence.
Defendant was charged with attempted first degree burglary. On January 24, he entered a plea of no contest to that charge with the understanding that he could receive a term in state prison of up to three years.
On February 28, the court denied probation and sentenced defendant to the middle term of two years. However, based on a stipulation that defendant was addicted or in imminent danger of becoming addicted to narcotics, the court suspended criminal proceedings and committed defendant to the California Rehabilitation Center (CRC) pursuant to Welfare & Institutions Code section 3051.
On March 12, defendant sent a letter to the court indicating he would prefer to be sent to prison than CRC. On March 14, criminal proceedings were reinstated and defendant was remanded to state prison.
Discussion
I
Request to Withdraw Plea
Prior to sentencing, defendant sent a letter to the court expressing his desire to withdraw his plea. The letter read:
“I am writing to you directly because I am not certain that my assigned attorney, Jodea Foster, fully intends to move this court to allow me to withdraw my guilty plea, and exercise my right to a jury trial.
“When I made my plea, I had been told by my attorney that we could not prove that I had entered the non-commercial residence (garage) with no intention to commit the crime of burglary, and that if I did not plea [sic] guilty to the crime of attempted burglary that I would be charged with burglary, with the implication that I would then go to prison. Based on this information I plead [sic] guilty to attempted burglary and indicated to the interviewing probation officer that I had intended to steal something which is actually not true at all.
“I entered the garage after drinking at a friend’s house in the neighborhood looking only for a place to sleep momentarily. I had no sooner lain down to sleep when the owners returned and at that time I fled.
“I do not believe that my plea was voluntary nor intelligently made as I have since discovered that the threat to charge and or convict me of burglary was not possible since I did not steal anything and nothing was reported stolen by the owner of the property.
“I believe that at most I was only guilty of violation [sic] Cal. Pen. Code sect. 602.5(a), Unauthorized Entry of Property, a misdemeanor. I therefore wish to withdraw my plea in this matter and request a jury trial on the charges.” (Bolding deleted.)
At the sentencing hearing, defendant did not move to withdraw his plea, and the court took no action on his letter.
Following sentencing, defendant submitted a declaration in which he indicated he met with counsel the day before sentencing and was advised there were no grounds for withdrawing his plea and that if he did withdraw the plea he could expect to be charged with burglary rather than attempted burglary. According to defendant, counsel informed him he should expect to be sentenced to probation.
Defendant contends the trial court erred in failing to rule on his request to withdraw his plea. The People counter that defendant cannot appeal on this basis, because he waived his right to appeal when he entered his no contest plea. They argue a defendant’s waiver of the right to appeal is enforceable as long as it was knowing, voluntary and intelligent. (See People v. Vargas (1993) 13 Cal.App.4th 1653, 1659.) However, the question whether defendant’s waiver was knowing, voluntary and intelligent is the very issue presented by defendant’s request to withdraw his plea. In other words, the question whether defendant should have been permitted to withdraw his plea turns on whether his plea was knowing, voluntary and intelligent. That issue always remains open for review on appeal. (In re Uriah R. (1999) 70 Cal.App.4th 1152, 1157.)
“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.” (Pen. Code, § 1018.) Where as here the defendant was represented by counsel at the time of the guilty plea, the court has discretion whether to permit withdrawal of the plea upon a showing of good cause. (People v. Cruz (1974) 12 Cal.3d 562, 566.) “Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.] But good cause must be shown by clear and convincing evidence.” (Ibid.)
Assuming defendant’s letter was sufficient to invoke the trial court’s jurisdiction to consider whether he should be permitted to withdraw his plea, defendant never pursued the matter further. According to defendant, the day before sentencing, his counsel advised that there were no grounds for withdrawal of the plea.
“‘[W]here the court, through inadvertence or neglect, neither rules nor reserves its ruling . . ., the party who objected must make some effort to have the court actually rule. If the point is not pressed and is forgotten, he may be deemed to have waived or abandoned it, just as if he had failed to make the objection in the first place.’” (People v. Obie (1974) 41 Cal.App.3d 744, 750, disapproved on other grounds in People v. Rollo (1977) 20 Cal.3d 109, 120, fn. 4; People v. Braxton (2004) 34 Cal.4th 798, 813.)
In any event, defendant’s letter failed to establish, by clear and convincing evidence, good cause for withdrawal of the plea. A form signed by defendant at the time of his change of plea, recited that, by entering the plea, defendant avoided the potential of a charge of burglary. The form also recited that defendant would be subject to a state prison term of up to three years and that probation would be granted only upon a showing of unusual circumstances.
At the change of plea hearing, defense counsel explained that defendant was entering into the plea agreement to avoid a more serious charge with double the potential prison term. Defendant acknowledged that he was not under the influence of drugs or alcohol and had explained all the facts to his counsel. Defendant was again informed of the maximum exposure of three years in state prison and that probation would be granted only on a showing of unusual circumstances.
In his letter to the court, defendant explained that his counsel informed him he could be charged with burglary which, defendant asserted, was not true because nothing had been taken from the victims. However, defendant was incorrect on the law. A charge of burglary does not require the taking of property but the entry of a home with intent to commit a felony therein. (Pen. Code, § 459.) Defendant need only have intended to take something, whether or not he actually did so. Such intent may easily be inferred from the circumstances.
Defendant also claimed in his letter that he was innocent of the charges, entered the garage to find a place to sleep, and had just lain down when the owners returned. However, even if this were true, it does not detract from the evidence showing the owners left the garage door closed, were gone only a short time and returned to find the garage door open and defendant inside. If defendant had opened the garage door and lain down to sleep as he claimed, why had he left the garage door open?
But even assuming defendant believed what he said, his belief in his innocence of the charge would not negate the voluntariness of his plea in light of the evidence arrayed against him and his potential prison exposure.
Finally, as to defendant’s later assertion that counsel told him he would receive probation, this is belied by the repeated warnings that defendant faced a potential three-year prison sentence and probation would be granted only upon a showing of unusual circumstances.
II
Appointment of New Counsel
Defendant contends the trial court was required to appoint new counsel to investigate and prepare a motion to withdraw his plea. However, defendant failed to request substitution of counsel. Absent such a request, the trial court was under no obligation even to inquire of the propriety of such a substitution. (People v. Gay (1990) 221 Cal.App.3d 1065, 1071.)
Furthermore, defendant’s letter to the court failed to present any grounds for substitution. As explained above, defendant complained that counsel erroneously informed him he was subject to a charge of burglary. However, counsel was correct in this regard. Defendant also claimed he was factually innocent, but this did not detract from the propriety of his no contest plea under the circumstances. Finally, even defendant’s declaration after sentencing that counsel incorrectly informed him he would receive probation is not grounds for substitution. Assuming counsel did so, defendant was adequately warned otherwise.
Disposition
The judgment is affirmed.
I concur: BLEASE, Acting P.J.
I concur in the result. NICHOLSON, J.