Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62-077287A
BUTZ, J.Pursuant to a plea bargain, defendant Derek Adam Nikrasch pleaded no contest to felony evasion of a peace officer with willful disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a)), and misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)(1)).
We note that defendant’s surname is misspelled as “Nikarsch” on the abstract of judgment and shall order it corrected to read “Nikrasch.”
Subsequently, defendant moved to withdraw his plea based on counsel’s discovery of evidence allegedly favorable to his client’s defense. The trial court denied the motion. Defendant obtained a certificate of probable cause and now appeals, claiming the trial court abused its discretion. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts surrounding the charged offenses are drawn from defendant’s probation report and the plea proceedings.
On January 20, 2008, at about 8:00 p.m., Deputy Dennis Kemper of the Placer County Sheriff’s Department was on patrol when he saw a vehicle approach the intersection of Taylor Road and Sierra College Boulevard, turn off its headlights, and speed through a red light at 80 miles per hour. Kemper pursued the vehicle, conducted a traffic stop and ordered the driver, later identified as defendant, to come out of the vehicle and lie on the ground. When defendant refused to obey Kemper’s repeated orders, Kemper pepper-sprayed him. Defendant continued to resist, prompting the deputy to strike him on the leg and forearm with his impact weapon. Following his arrest, defendant was transported to Sutter Roseville Medical Center for treatment of his injuries. Defendant submitted to a blood-alcohol test, which revealed a blood-alcohol content of 0.16 percent.
The charges
The district attorney filed a criminal complaint charging defendant with two felonies: evading a peace officer with willful disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a) count one) and resisting an executive officer by threats or violence (Pen. Code, § 69 count two). Defendant was also charged with three misdemeanors: driving under the influence of alcohol or drugs (DUI) (Veh. Code, § 23152, subd. (a) count three), driving with a blood-alcohol level of 0.08 percent or higher (id., § 23152, subd. (b) count four), and willfully resisting a peace officer in the performance of his duties (Pen. Code, § 148, subd. (a)(1) count five).
The complaint alleged enhancements for a prior felony conviction (Pen. Code, § 667.5, subd. (b)), a prior DUI conviction (Veh. Code, § 23540), driving with a blood-alcohol level of 0.15 percent or higher (id., § 23578), and driving recklessly under the influence of alcohol or drugs (id., § 23582, subd. (a)).
The plea bargain
Pursuant to a negotiated agreement, defendant pleaded no contest to count one (felony evasion of a peace officer) and count five (misdemeanor resisting a peace officer in the performance of his duties). In exchange, the district attorney agreed to dismiss the remaining charges and enhancement allegations. The agreement included a stipulation that defendant would be sentenced to no more than two years in state prison and an acknowledgment of the possibility the trial court could reduce defendant’s felony conviction to a misdemeanor and grant probation. The court accepted the agreement, finding that defendant entered it knowingly, intelligently, and voluntarily.
Defendant’s motion
After he entered the plea but prior to sentencing, defendant moved to withdraw the plea on the ground that it was not voluntary because he had become aware of new evidence favorable to his case. In support of the motion, defense counsel filed a declaration alleging that he had learned of the existence of a pending internal affairs investigation of Deputy Kemper and discovered a police report of a 2003 domestic violence incident involving Kemper and his wife. Counsel declared that he would not have advised his client to enter the plea if he had known about these facts. Defendant filed a declaration stating that he would not have accepted the plea had he known about the newly discovered evidence.
The trial court denied the motion to set aside the plea, finding that defendant had not shown clear and convincing evidence of good cause to withdraw the plea.
Defendant renewed his motion with a supplemental declaration and further points and authorities, but the trial court reaffirmed its ruling. The court subsequently sentenced defendant to two years in state prison, comprised of a middle term of two years for count one and a concurrent six-month term for count five.
DISCUSSION
I. Applicable Principles
A trial court may allow a defendant to withdraw a guilty plea upon his or her showing of good cause based on clear and convincing evidence. (Pen. Code, § 1018; People v. Cruz (1974) 12 Cal.3d 562, 566.) For present purposes, a plea of no contest is considered the same as a plea of guilty. (Pen. Code, § 1016, par. 3.) Good cause to withdraw a guilty plea includes “[m]istake, ignorance or any other factor overcoming the exercise of free judgment.” (People v. Cruz, supra,at p. 566.) However, a defendant must establish that his free will was overcome, not merely that he had a change of heart. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)
In exercising its discretion, a court may consider the rights of the People, which include “the right not to have a guilty plea set aside or withdrawn without good cause, thereby resulting in a needless expenditure of time and money in the trial of the case.” (People v. Waters (1975) 52 Cal.App.3d 323, 331.) Plea bargaining is “an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts.” (In re Alvernaz (1992) 2 Cal.4th 924, 933, citing Blackledge v. Allison (1977) 431 U.S. 63, 71 [52 L.Ed.2d 136, 145].) Thus, a plea “resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.” (People v. Hunt (1985) 174 Cal.App.3d 95, 103; see also Blackledge v. Allison, supra, at p. 71.)
We review the trial court’s decision to deny a motion to withdraw a guilty plea for abuse of discretion. (People v. Holmes (2004) 32 Cal.4th 432, 442-443; People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) We adopt the trial court’s factual findings to the extent they are supported by substantial evidence. (People v. Fairbank, at p. 1254.)
II. Evidence in Support of the Motion
Defendant’s motion was based on discovery of a 2003 police report describing a domestic violence incident involving Deputy Kemper and his wife, and the fact that defense counsel had learned Kemper was subject to a pending internal affairs investigation.
Defendant’s claim that there was a pending internal affairs investigation of Deputy Kemper was supported solely by counsel’s bald assertions. Because defendant’s motion contained no evidence to support this claim other than unsubstantiated hearsay from unnamed sources, the trial court had no duty to consider it and we do not discuss it further.
The January 2003 police report, which was submitted in support of defendant’s motion, was prepared by the El Dorado County Sheriff’s Department. According to the report, deputies were called to the Kemper residence in response to a report of a domestic altercation. Deputy Kemper’s wife told the officer that she called 911 because she and her husband “had been fighting.” Mrs. Kemper told the officers an argument occurred after Kemper had come home from a Super Bowl party. During the quarrel her husband struggled with her over control of her purse causing the strap to break, threw a pillow on the bed, pinned her arms together and pulled the phone cord out of the wall after she called 911. When asked if she wanted him arrested, she said “no.”
Deputy Kemper, whose breath smelled of alcohol, admitted to struggling with his wife over the purse. Although he initially told the deputy that “nothing else” had occurred between them, when confronted with the frayed telephone cord, he admitted having pulled it out of the wall, stating “yeah, I was stupid.”
As a result of the incident, Deputy Kemper was arrested for spousal battery (Pen. Code, § 243, subd. (e)(1)) and maliciously removing a telephone cord (id., § 591). He pleaded guilty to the latter charge as a misdemeanor and went through a counseling program on domestic violence.
III. Resolution of the Appeal
Defendant claims the January 2003 incident constituted crucial evidence that materially affected his decision to accept the plea. He argues he could have used the facts recounted in the police report for three purposes. First, for impeachment, since domestic violence is an act of moral turpitude (see People v. Wheeler (1992) 4 Cal.4th 284, 296-297, fn. 7 [misconduct involving moral turpitude may be used for impeachment].) Second, to show Deputy Kemper had a propensity for violence, strengthening the defense that the deputy used excessive force in making the arrest. (Lemelle v. Superior Court (1978) 77 Cal.App.3d 148, 163; see also Evid. Code, § 1103, subd. (a)(1).) And, third, to show the deputy had a character trait for dishonesty and lack of veracity. (Evid. Code, §§ 780, subd. (e), 1100.)
We are unpersuaded by this argument for several reasons. First, the benefit of the information to defendant’s case was highly speculative. The 2003 police report itself was inadmissible hearsay (Evid. Code, § 1200) and defense counsel offered no indication that he was prepared to call any witnesses to testify about the events of January 2003.
Second, any attempt to introduce the incident would have certainly been met with an objection based on Evidence Code section 352, which gives a trial court discretion to exclude evidence when its probative value is substantially outweighed by the risk of undue consumption of time, undue prejudice, confusion of issues, or misleading of the jury. Such an objection would have substantial merit: The incident was only marginally probative, having occurred five years before defendant’s arrest; it took place in a family setting that had nothing to do with Deputy Kemper’s performance of his duties as a law enforcement officer; and the resulting conviction was the minor offense of unlawful removal of a telephone cord. On the other hand, the incident carried a strong potential for creating prejudice, confusing the issues and misleading the jury, in a trial where the focus would be on whether defendant tried to evade an officer with reckless disregard for persons and property, drove while highly intoxicated and refused to obey the officer’s lawful commands. The trial court could reasonably have determined that it was very unlikely the events surrounding Deputy Kemper’s domestic violence arrest would have been admitted into evidence at trial, and thus defendant’s lack of knowledge about the incident did not overcome his free judgment in accepting the plea agreement.
Even assuming defendant got past these evidentiary hurdles, the introduction of character evidence pertaining to Deputy Kemper could have backfired, opening the gates to admission of acts showing defendant’s own violent character. (Evid. Code, § 1103, subd. (b); see People v. Walton (1996) 42 Cal.App.4th 1004, 1014-1015, disapproved on a different ground in People v. Cromer (2001) 24 Cal.4th 889, 901 & fn. 3.) Thus, the evidence carried potential hidden dangers to the defense.
Defendant’s reliance on People v. Dena (1972) 25 Cal.App.3d 1001 and People v. Ramirez (2006) 141 Cal.App.4th 1501 is not well taken. In Dena, the newly discovered evidence tended to show defendant lacked the specific intent required to commit the crime. (Dena, supra, at pp. 1006-1008.) In Ramirez, the evidence tended to show someone other than defendant committed some of the crimes. (Ramirez, supra, at pp. 1505-1507.) Here, the evidence surrounding Deputy Kemper’s domestic violence incident was not directly exculpatory. Rather, it was evidence that might have borne on the officer’s credibility and character. Such evidence has a far more attenuated connection to defendant’s free judgment to enter a plea than the type of evidence withheld in Dena and Ramirez, which directly supported the defendants’ factual innocence.
As the United States Supreme Court has explained, “[i]t is particularly difficult to characterize impeachment information as critical information of which the defendant must always be aware prior to pleading guilty given the random way in which such information may, or may not, help a particular defendant.” (United States v. Ruiz (2002) 536 U.S. 622, 630 [153 L.Ed.2d 586, 595].) The high court added that such information bears more on the fairness of a trial rather than the voluntariness of a plea. (Id. at p. 633 [153 L.Ed.2d at p. 597].) Like impeachment evidence, character evidence is not “critical information” that a defendant needs to determine whether to plead guilty, since its exculpatory value is remote and highly speculative. (Id. at p. 630 [153 L.Ed.2d at p. 595].)
We also observe that the trial court, as the sole judge of credibility, could find lacking in veracity the declarations of defendant and his attorney that they would have gone to trial had they known of newly discovered information. (See People v. Hunt, supra,174 Cal.App.3d at p. 103 [“[I]n determining the facts, the trial court is not bound by uncontradicted statements of the defendant”]; People v. Beck (1961) 188 Cal.App.2d 549, 553 [trial courts need not give full credence to a defendant’s uncontradicted statements in light of defendant’s interest in the outcome].)
As the district attorney pointed out, defendant filed his motion to withdraw the plea only after the issuance of a probation report recommending a prison sentence, thus substantially diminishing defendant’s hope that he would be placed on probation. Given defendant’s obvious self-interest in avoiding state prison, the trial court could view with a healthy suspicion defendant’s averment that he would not have entered the plea had he known about the newly discovered evidence. (See People v. Nance, supra, 1 Cal.App.4th at p. 1456 [“A plea may not be withdrawn simply because the defendant has changed his mind”].)
We note that defendant faced serious charges for evading and resisting a peace officer, misdemeanors for a DUI and resisting a peace officer, and allegations of circumstances that could lead to sentencing enhancements. The later discovery of potential impeachment and character evidence that stood only a slim chance of being admitted did not directly bear on defendant’s guilt and cannot be said to have been so crucial as to render the plea involuntary. Furthermore, the objective evidence that defendant had a 0.16 percent blood-alcohol content at the time of his arrest was particularly damaging to his case, regardless of any evidence that might have portrayed Deputy Kemper in an unflattering light.
The plea reduced defendant’s custody exposure to two years, resulted in a dismissal of the DUI and felony resisting charges, and held open the prospect the judge would reduce the remaining felony to a misdemeanor and grant probation. Under these circumstances, the trial court did not abuse its discretion in refusing to allow defendant to withdraw his plea.
DISPOSITION
The judgment is affirmed. As noted, however, the abstract contains a misspelling of defendant’s surname, which must be corrected, in that “Nikarsch” should be “Nikrasch.” The trial court is directed to prepare an amended abstract of judgment and send a certified copy to the Department of Corrections and Rehabilitation.
We concur: BLEASE, Acting P. J., CANTIL-SAKAUYE, J.