Opinion
NOT TO BE PUBLISHED
Superior Court of Los Angeles County No. BA293401 Luis A. Lavin, Judge
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, David Zarmi, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Steven Ragland appeals an order denying his motion to withdraw his plea of no contest entered pursuant to a plea bargain. The plea was entered under the trial court's erroneous advice that the only reason Ragland would be rejected by a California Rehabilitation Center (CRC) treatment program was if he was faking drug addiction. Ragland was rejected for another reason. We reverse.
FACTS
Police stopped Ragland while he was driving his car. A search of Ragland and the car revealed 59 individually wrapped rocks of cocaine base, 8 baggies containing cocaine base, 13 baggies containing marijuana, 2 cell phones and $495 in small denominations.
Because Ragland pled no contest, the facts relating to the offense are taken from the preliminary hearing.
The prosecutor charged Ragland with possession of cocaine for sale (Health & Saf. Code, § 11351.5), possession of marijuana for sale (§ 11359), sale or offer to sell or transportation of cocaine base (§ 11352, subd. (a)), and sale or transportation of marijuana (§ 11360, subd. (a)). The prosecutor further alleged that Ragland has a prior strike within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)); that he had served seven prior prison terms (Pen. Code, § 667, subd. (a)(1)), and that he has a prior narcotics conviction (§ 11370.2, subd. (a)).
All statutory references are to the Health and Safety Code unless otherwise stated.
Ragland entered into a plea agreement. Under the agreement, he pled no contest to possession of cocaine base for sale and admitted the prior strike allegation. In exchange, the remaining counts and allegations were dismissed and he was sentenced to a stipulated six years in prison with a recommendation for diversion under Welfare and Institutions Code section 3051 in lieu of prison.
Prior to Ragland's plea, the following colloquy took place between the prosecutor, defendant and the court:
"PROSECUTOR: Now sir, if for some reason you're not acceptable to the CRC or if you are ever excluded from the CRC program, you will be sentenced to six years of state prison, and you will not be able to withdraw your plea. Do you understand and agree to that, Sir?
"THE DEFENDANT: I'm confused. Could you repeat that one more time?
"[PROSECUTOR]: Sure. We're going to send you over to Department 95 where they'll determine your eligibility, if you can get into CRC. If you are not eligible to go into the program at the CRC or if you get excluded, thrown out of the CRC program, you will be sentenced to the six years state prison. You will not be able to withdraw your plea. Do you understand and agree to that?
"THE COURT: What we would do if it turns out that for some reason - - we're not anticipating that - - if they feel you aren't addicted to narcotics or you don't have an addiction, they're going to send you back here. If they send you back here, you've already entered your plea. What I would do then is make your time in state prison pursuant to 1203.096 of the Penal Code which means your commitment in state prison would have to have a drug treatment associated with it and recommend you for Donovan or one of the other good programs. [¶] Anybody see any reason why he wouldn't get into CRC?
"[PROSECUTOR]: No.
"THE DEFENDANT: That's the only part I'm nervous about. The latter part, about me getting kicked out, I agree with that.
"THE COURT: Well, they're saying if you're not suitable for it.
"THE DEFENDANT: Okay.
"THE COURT: The only reason you'd not be suitable is if you are faking having a drug addiction.
"THE DEFENDANT: No. No. No. No.
"THE DEFENDANT: Is that agreeable, Sir?
"THE DEFENDANT: Yes, Sir."
Thereafter, Ragland entered his plea. The court sentenced him to a six-year prison term and referred him to CRC.
Ragland was received into the CRC diversion program in June 2006. He was doing well in the program. In February 2007, however, the Warden of the CRC informed the court that Ragland was not eligible for the diversion program under Welfare and Institution Code section 3053 because he is a felon serving a parole revocation term. The Warden referred the matter back to the trial court.
Ragland made a motion to withdraw his plea on the ground that he was misinformed. Ragland pointed out that the court told him the only reason CRC would reject him was if he was not addicted to drugs. The trial court denied the motion on the ground that Ragland knew he might be rejected by the CRC. The court imposed the six-year prison sentence with credit for time served.
DISCUSSION
A defendant may be allowed to withdraw his plea upon a showing of good cause by clear and convincing evidence. (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1617.) To establish good cause, the defendant must show he was acting under mistake, ignorance or any other factor overcoming the exercise of his free judgment. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) The defendant must also show prejudice; that is, he would not have accepted the plea bargain had it not been for the mistake. (In re Moser (1993) 6 Cal.4th 342, 352.) We review the trial court's decision for an abuse of discretion. (People v. Jordan (1986) 42 Cal.3d 308, 315.)
There is no doubt that in accepting the plea bargain, Ragland was acting under erroneous advice. The trial court advised him prior to his plea: "The only reason you'd not be suitable [for the CRC program] is if you are faking having a drug addiction." The CRC found him not suitable for other reasons. (See People v. Romero (1977) 68 Cal.App.3d 543, 553, citing People v. Marquez (1966) 245 Cal.App.2d 253, 256-257.)
The Attorney General's reliance on People v. Phillips (1968) 263 Cal.App.2d 423, 426-427, is misplaced. There the defendant pled guilty on the understanding he would be "given access to treatment for drug addiction." (Id. at p. 427.) When he was found not eligible for the treatment because of "excessive criminality," he moved to withdraw his plea. (Ibid.) The trial court denied the motion and the Court of Appeal affirmed on the ground that the promise was kept. He was given access to treatment. But here, unlike Phillips, Ragland was expressly advised that the only reason he would be rejected is for faking a drug addiction. That promise was not kept.
The only question is, did Ragland show prejudice; that is, he would not have accepted the bargain but for the court's erroneous advice? (See In re Moser, supra, 6 Cal.4th at p. 352.) The Attorney General argues Ragland cannot show prejudice because he appears to have no defense and he faces the possibility of being sentenced to 22 years in prison instead of 6 years. But here the record affirmatively shows that at the time of his plea, Ragland was particularly concerned about being accepted into the CRC program. He expressed that concern twice and with sufficient force that the trial court was moved to give him assurances. It may be foolish for Ragland to turn down six years in the face of the possibility of a much longer sentence, but it is not for us to question the wisdom of Ragland's motion. The record shows that acceptance into the CRC program for Ragland was an essential part of the bargain. Ragland was denied that part of the bargain. He has made a sufficient showing of prejudice.
The order denying Ragland's motion to withdraw his plea is reversed.
We concur: YEGAN, J., COFFEE, J.