Opinion
D056354 Super. Ct. No. SCS221413
08-31-2011
THE PEOPLE, Plaintiff and Respondent, v. JESSE VIDAL RAMIREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, David M. Rubin, Judge. Affirmed.
An information charged defendant Jesse Ramirez with numerous crimes and enhancements arising out of assault on and robbery of numerous victims. Ramirez was charged with attempted carjacking (Pen. Code, § 664/215), three counts of robbery (§ 211), two counts of assault by means likely to cause great bodily injury (§ 245, subd. (a)(1)), and two counts of misdemeanor battery (§ 242). The information also alleged Ramirez had committed the six felonies for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1), and had suffered a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior strike conviction (§ 667, subds. (b)-(i)).
All further statutory references are to the Penal Code unless otherwise specified.
Ramirez entered a plea agreement. Under the terms of the agreement, Ramirez pleaded guilty to the three robbery counts and admitted the prior serious felony conviction and prior strike conviction allegations, and the prosecution (1) dismissed all of the remaining counts and allegations, (2) stipulated to a 15-year sentence, and (3) agreed to not file any charges in connection with an assault allegedly committed by Ramirez while he was in jail. Ramirez subsequently moved to withdraw his guilty plea. The court denied the motion and sentenced Ramirez to the agreed 15-year term. Ramirez filed a notice of appeal and obtained a certificate of probable cause.
On appeal, Ramirez argues the trial court abused its discretion by denying his motion to set aside his guilty plea. He argues the plea agreement was based in substantial part on the prosecution's agreement to not file charges in connection with the jail assault, but Ramirez was unaware (due to his attorney's ineffective assistance) of the weakness of that charge and, because he would not have pleaded guilty had he known the weakness of that charge, it was an abuse of discretion for the court to deny him leave to withdraw his guilty plea.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Crimes
Ramirez and his brother approached a parked car occupied by three women and tried to flirt with them. When the women rebuffed them, Ramirez and his brother began punching the woman in the front passenger seat. One of the brothers demanded the women's cell phones, and the passenger gave her purse to them. The driver opened her car door and yelled at them to stop, but one walked around and punched her in the face while the other was violently attacking the passenger. The driver got out and, carrying her keys, ran toward a nearby house. Ramirez or his brother got into the driver's seat and yelled at the driver to give him the keys. During the assault, they stated, "San Fernando L.A. gangs."
A female passerby saw part of the attack and called 911 on her cell phone. Ramirez or his brother spotted the passerby and ran up to her and demanded her cell phone. He then punched her in the eye, grabbed her purse and ran, yelling "L.A. County."
Police responded, searched the area, and found Ramirez and his brother sitting on the front porch of a residence. Police located the two stolen purses in a trash can in the driveway outside the residence. Both Ramirez and his brother admitted they were gang members from San Fernando Valley in Los Angeles County.
B. The Plea Agreement and Guilty Plea
Had Ramirez been convicted of the underlying crimes, he would have faced a minimum sentence of 38 years 8 months, a middle term of 43 years 8 months, or a maximum sentence of 47 years 8 months. Ramirez's counsel concluded the evidence of Ramirez's guilt of the underlying crimes made the pending case a "not . . . very defensible case."
Additionally, Ramirez was allegedly involved in a separate assault at a detention center (the jail assault). Had the prosecutor filed charges related to the jail assault, and Ramirez were also convicted of those charges, Ramirez would have faced a potential life sentence on the assault because it would be his third strike conviction.
The plea offer was a "package" agreement, and was contingent on agreement from both Ramirez and his codefendant brother. Under the terms of the agreement, Ramirez would plead guilty to the three robbery counts and admit the prior serious felony conviction and prior strike conviction allegations. In return, the prosecution would dismiss all of the remaining counts and allegations, stipulate to a 15-year sentence, and agree to not file any charges in connection with the jail assault. Ramirez's brother stated initially he would reject the agreement, while Ramirez expressed a desire to accept it. After the court explained the potential benefits and risks of either choice, the brothers discussed whether to accept the agreement. They ultimately both agreed to accept the plea agreement, and the court accepted the plea agreement and set the matter for sentencing.
The prosecutor made clear that Ramirez would not be able to take advantage of the offer if his brother rejected the plea agreement.
C. The Motion to Withdraw the Plea
Ramirez subsequently filed a motion to withdraw his plea. He asserted he had agreed to the plea because the prosecution agreed to not file charges on the jail assault, but Ramirez was not fully informed of the insufficiency of the evidence or weakness of the case regarding the jail assault. The prosecution opposed the motion, and the court held a contested evidentiary hearing.
At the hearing, Ramirez testified the potential life sentence in connection with the jail assault was a factor in his decision to accept the plea agreement to the underlying crimes. However, when he tried to discuss the jail assault with his trial counsel (Mr. Berman), Ramirez was told "not to worry about it"; Ramirez never reviewed the incident reports or the videotape of that assault or discussed the jail assault with either Berman or the defense investigator. However, Ramirez later learned there were differing opinions on the clarity of the videotape. He testified Berman first viewed the videotape in the courtroom on the day of the hearing on Ramirez's change of plea, and Berman told Ramirez "[I've] seen the tape and I'm out," which Ramirez construed to mean the case against him on the jail assault was strong. However, Ramirez testified he later learned Berman told Ramirez's father the tape was very unclear. When Ramirez asked him about the tape, Berman told Ramirez that he had only viewed it on his laptop and it wasn't clear. Berman told Ramirez to put the video on a larger screen television and "tell me what it shows."
Berman's testimony concerning the discussions he had with Ramirez about the jail assault differed from Ramirez's portrayal. Berman testified he obtained the discovery on the jail assault several months before the hearing at which Ramirez changed his plea. Berman's practice was to have himself and his investigator review the discovery immediately, to discuss it with his client, and to give copies to the client if the client requested. Although Berman met with Ramirez numerous times during the course of representing him, and believed they had several conversations on that topic, Berman had no specific recollection of the discussions they had about the jail assault. Berman testified he met with Ramirez after the plea agreement was entered, at which time Ramirez explained why he wished to withdraw the plea. Ramirez told Berman that the reason for wanting to change the plea was because Berman had told Ramirez the evidence on the jail assault was strong and his chances of prevailing were not good, but Berman "disputed that with him, because I didn't have any basis to . . . advise him one way or the other about it at that point."
After hearing argument from counsel, the trial court denied the motion to withdraw the plea. The court found credible Berman's testimony that he did not render any opinion about the strength of the jail assault. The court rejected the credibility of Ramirez's protestations that he would not have entered the agreement had he known the jail assault case was weak because (1) Ramirez received a substantially reduced sentence (from nearly 50 years down to 15) from the plea agreement even ignoring any additional benefits accruing from nonprosecution of the jail assault, and (2) Ramirez's own statements at the plea hearing showed he was willing to defer to his brother's decision on whether to accept the plea agreement because Ramirez observed that whether he received a life sentence or a 40-year sentence "is not going to make a difference" to him. The court concluded Ramirez's change of position was attributable to buyer's remorse and that Ramirez had not satisfied his burden of showing good cause to withdraw the plea.
ANALYSIS
A. Applicable Principles
Section 1018 permits the withdrawal of a plea and should be "liberally construed to . . . promote justice." However, to withdraw a guilty plea, a defendant must show good cause by clear and convincing evidence. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) To establish good cause, the defendant must show he or she was operating under mistake, ignorance, or any other factor overcoming the exercise of the defendant's free judgment. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) However, "[a] plea may not be withdrawn simply because the defendant has changed his mind." (Ibid.; accord, In re Brown (1973) 9 Cal.3d 679, 686.)
Importantly, in determining whether the defendant has met the burden of showing the factual basis for alleged mistake, ignorance, or any other factor overcoming the exercise of his or her free judgment, the trial court sits as a trier of fact and is not bound to accept as true even uncontradicted statements of the defendant. (People v. Hunt (1985) 174 Cal.App.3d 95, 103.) "Withdrawal of a guilty plea is left to the sound discretion of the trial court. A denial of the motion will not be disturbed on appeal absent a showing the court has abused its discretion." (People v. Nance, supra, 1 Cal.App.4th at p. 1456.) That abuse of discretion must be "clearly demonstrated" before a defendant can prevail on appeal. (People v. Superior Court (Giron)(1974) 11 Cal.3d 793, 796-797.)
B. Analysis
Ramirez's argument below rested on two premises: first, that he accepted the plea bargain in large part because he feared the life sentence associated with a conviction for the jail assault and the prosecutor agreed not to subject Ramirez to prosecution for that assault; and, second, that his fear was rooted in Berman's erroneous advice (the product of Berman's inadequate investigation) that the evidence against Ramirez on the jail assault was strong.
The trial court was not persuaded by the argument because it did not credit either factual premise. First, the court noted Ramirez was facing a nearly 50-year sentence, even without considering the jail assault. At the time of the plea, the court explained that, based on Ramirez's current age, he would (under the plea bargain) be eligible for release when he was 35 years old but he would not get out until he was "in [his] 60's" were the maximum term for the underlying crimes imposed. When rejecting Ramirez's motion, the trial court expressly found the potential life term was an insignificant factor in Ramirez's decisional process, relying on the evidence that Ramirez, when assuring his brother that Ramirez was willing to go to trial should his brother not want to accept the plea bargain, told his brother not to be concerned with the potential life sentence. The court concluded that Ramirez's protestations that the life sentence was a significant consideration were not "credible." There is substantial evidence to support this conclusion. Even ignoring the jail assault, Ramirez's plea agreement garnered him a substantially reduced sentence in connection with a case that defense counsel characterized "not . . . very defensible," which supports the inference that it was the reduced sentence in the pending matter that was the significant inducement to Ramirez. Moreover, Ramirez told his brother to ignore the jail assault matter because it made no difference to Ramirez whether he was facing a nearly 50-year sentence or whether he was facing a life term, which buttresses the inference it was the reduced sentence in the pending matter (not dismissal of the unfiled charges) that was the significant inducement to him.
Ramirez assured his brother that he was willing to go to trial if his brother chose not to accept the plea bargain. Ramirez, when telling his brother that it was up to his brother whether to accept the plea and that his brother should not be influenced by the potential life sentence associated with the jail assault, told him that whether Ramirez received 40 years (for going to trial on the pending charges) or life (for going to trial on the unfiled charges) "is not going to make a difference."
The court also found the second factual premise of Ramirez's motion lacked substance because he made his decision to accept the plea without any statement by Berman concerning how weak or strong the evidence was on the unfiled charges of the jail assault. There was substantial evidence to support this finding. First, the trial court believed Berman to be a credible witness, and in particular Berman's testimony that he did not render an opinion about the strength of the evidence on the jail assault. The credibility of witnesses is the exclusive province of the trier of fact (People v. Smith (2005) 37 Cal.4th 733, 739) and we may not disturb that finding. Second, at the time of the plea, Berman did express his opinion that the pending charges appeared strong and explained the basis for that opinion, but he made no similar assessments or statements when alluding to the jail assault charges, which reinforces the inference that Berman's testimony at the plea withdrawal hearing should be credited and Ramirez's self-serving testimony be discredited.
When he met with Berman after the plea was entered, Ramirez confronted Berman and claimed he originally told Ramirez the evidence on the jail assault was strong. Berman's response to Ramirez was to deny any such opinion because Berman "didn't have any basis to . . . advise him one way or the other about it at that point."
Based on these factual determinations, the trial court found Ramirez had not "met his burden in this case" to show good cause for withdrawing his plea. Because substantial evidence supports these findings, we cannot conclude it was an abuse of discretion to deny his motion.
Ramirez asserts the holding in People v. McCary (1985) 166 Cal.App.3d 1 shows the ruling was an abuse of discretion. In McCary, the defendant entered pleas pursuant to a plea bargain to two counts of section 288, subdivision (a), lewd and lascivious acts on a child under the age of 14. After the pleas, the prosecutor moved to dismiss the three other felony charges in the information, as well as the allegation of a five-year enhancement pursuant to section 667. (McCary, at pp. 5-6.) Thereafter, the defendant discovered (based on a subsequent California Supreme court case) that his 1981 prior conviction could not have served as a predicate for a five-year enhancement as a matter of law. On appeal, the Court of Appeal ordered the trial court to set aside the defendant's guilty plea because counsel could have obtained dismissal of the enhancement as a matter of law, and defense counsel should have advised the defendant of the prior conviction's invalidity as an enhancement before the plea was entered. The court concluded that because the defendant was ignorant of the actual value of the commitments he made and benefits he obtained from the plea, he suffered prejudice entitling him to withdraw his plea. (Id. at pp. 10-11.)
We are not persuaded by Ramirez's reliance on McCary because it is not analogous to the present matter. Here, the evidence supports the conclusion that trial counsel made no representation about the viability of the jail assault charges, much less that trial counsel should have recognized and advised Ramirez that the charges would be dismissed as a matter of law as part of counsel's advice concerning the plea bargain. Moreover, unlike McCary, in which the court could have inferred the defendant was induced to enter the plea agreement based mainly on the dismissal (because the principal benefit received by the McCary defendant under the plea was the reduced sentence accruing from the dismissed enhancement), the court here could have and did find that Ramirez was induced to enter the agreement for reasons unrelated to the jail assault charges. McCary is not relevant to this matter.
DISPOSITION
The judgment is affirmed.
MCDONALD, J. WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.