Opinion
NOT DESIGNATED FOR PUBLICATION
Before Wiseman, Acting P.J., Levy, J., and Gomes, J.
APPEAL from a judgment of the Superior Court of Kern County, Super. Ct. Nos. BF110713A & BF099774A. Lee P. Felice, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
On appeal, appellant Hector Adam Valdez contends that the trial court abused its discretion in denying his motion to withdraw his plea of guilty to armed robbery. Valdez claims his plea was entered on the mistaken belief that he would receive custody credits at the normal rate and serve only half of his seven-year sentence. Because Valdez admitted that he had personally used a firearm in the commission of the offense, however, he was statutorily limited to earning no more than 15 percent custody credits. (Pen. Code, § 2933.) Valdez claims he would not have entered his plea had he known of the statutory limitation. We find no abuse of discretion and will affirm.
All further references are to the Penal Code unless otherwise stated.
Procedural History
In case No. BF110713A, Valdez was charged with second degree robbery (§ 212.5, subd. (c)), making criminal threats (§ 422), and assault with a firearm (§ 245, subd. (a)(2)). The information also alleged that Valdez had personally used a firearm in the commission of the offense within the meaning of section 12022.53, subdivision (b) (robbery count), and had personally used a firearm pursuant to the provisions of section 12022.5, subdivision (a) (all three counts). The information also alleged that Valdez had suffered three prior prison term convictions within the meaning of section 667.5, subdivision (b).
The trial court twice relieved defense counsel and appointed new counsel to represent Valdez. On January 23, 2006, Valdez filed yet another Marsden motion, requesting new counsel on the grounds that defense counsel had not filed a motion to dismiss for lack of evidence because the witnesses could not positively identify Valdez; had not filed a motion to suppress evidence of Valdez’s fingerprint on a metal box on chain-of-evidence grounds; and had not filed a motion to dismiss the criminal threats and assault counts on the ground that these charges had not been recommended in the police report. The court denied the request for new counsel.
People v. Marsden (1970) 2 Cal.3d 118.
On January 23, 2006, Valdez entered a negotiated plea of no contest to the robbery charge and admitted the personal-use enhancement (§ 12022.5, subd. (a)) in return for a seven-year lid on the sentence. The maximum sentencing exposure in the case was 18 years. The remaining counts and allegations of the information were dismissed or stricken.
Before taking Valdez’s plea, the court inquired whether Valdez was entering the plea because the court denied his motion to relieve counsel, or because Valdez was in fact “guilty of the charge,” or because Valdez wanted the benefit of the bargain. Defense counsel answered it was for the benefit of the bargain. The court asked Valdez, “So you wish to take advantage of the plea bargain in this case rather than face the possible sentence of as much as 18 years in prison?” Valdez answered, “Yes.”
After a full recitation of rights and Valdez’s waiver of those rights, the following exchange occurred between the trial court and Valdez:
“[Court]: Okay. Have you had enough time to discuss this plea and its consequences with [defense counsel]?
“[Valdez]: Yes.
“[Court]: Do you have any questions of me at this time, as far as any rights that you have and will be giving up by virtue of the plea or the consequences of this plea?
“[Valdez]: My rights to credits.
“[Court]: You know, we can calculate that. Did he want immediate sentencing?
“[Defense Counsel]: No, your Honor.
“[Court]: Okay. I’m going to refer this matter to Probation, and they will calculate your credits as of the day of your sentencing, Mr. Valdez. And if there’s some dispute over it, we will resolve the credits at that time.
“[Valdez]: All right. Thank you.1
“[Court]: All right. Any other questions, sir?
“[Valdez]: No.
“[Court]: [Defense counsel], are you satisfied that Mr. Valdez understands the nature of the plea and the consequences of it?
“[Defense counsel]: Yes, your Honor.”
On July 6, 2006, yet another new defense counsel moved to withdraw Valdez’s plea on the grounds that he entered his plea out of frustration with previous counsel and because he was operating under a material mistake of fact regarding the conduct credit available to him under the proposed prison term of seven years. Valdez claimed that he learned only after entering his plea that “the charge to which I had [pled] was a ‘violent felony’ within the meaning of the law and I would be required to serve 85 [percent] of the [seven-year] sentence to which I pled.… Had I known that I would have to serve approximately [five] more years in custody on the plea bargain, I would not have entered the plea on this basis alone.”
The court denied the motion and proceeded to sentencing. In accordance with the plea, Valdez was sentenced to a total term of seven years in state prison, the middle term of three years, plus four years for the personal-use enhancement.
In case No. BF099774A, Valdez pled no contest to possession of heroin (Health & Saf. Code, § 11350, subd. (a)) and possession of drug paraphernalia (a misdemeanor violation of Health & Saf. Code, § 11364), and admitted three prior prison terms (§ 667.5, subd. (b)). The court suspended imposition of sentence and placed Valdez on three years’ probation. The parties stipulated that the court could find Valdez in violation of his probation based on his plea in case No. BF110713A. The court found Valdez in violation and revoked his probation. Valdez was sentenced to a total term of five years (the middle term of two years, plus three, one-year prior-prison-term enhancements). The sentence was ordered to run concurrent to the term in case No. BF110713A.
Factual history
On January 16, 2004, Valdez entered Torres Jewelry, drew a firearm, and ordered the store clerk to lie on the floor. There were two robbers. The man who operated a neighboring shop entered the door as the robbery was in progress and was ordered into the shop. The second robber took the man’s wallet and some cash. The first robber opened a metal box belonging to the store and took a weapon stored in the box. Both robbers left the store. The victims were not able to positively identify the robbers. Although most of the fingerprints lifted at the scene were of no use, one print found on the metal box was identified as belonging to Valdez.
Discussion
Section 1018 provides that “the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.” Under section 1018, mistake, ignorance, or any other factor overcoming the exercise of free judgment is good cause for withdrawal of the plea, but good cause must be shown by clear and convincing evidence. (People v. Ramirez (2006) 141 Cal.App.4th 1501, 1506; People v. Castaneda (1995) 37 Cal.App.4th 1612, 1616-1617.) “‘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.’ [Citations.]” (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) Valdez was represented by counsel at the time of the plea and does not claim counsel was ineffective in his representation. Instead, what he challenges is the trial court’s alleged failure to inform him, in response to his question regarding custody credits, that his plea would limit custody credits to 15 percent. Valdez concedes there is no duty to give advisements regarding conduct-credit availability at the time a plea is taken. (People v. Barella (1999) 20 Cal.4th 261, 271-272 [numerous factors inform decision to parole an inmate; courts need not inform defendant of theoretical minimum portion of sentence that will have to be served in custody (taking into account potential in-prison conduct or work credits) when he pleads guilty to term whose potential length may be greater].) Valdez claims, however, that, because he inquired about his custody credits, he was entitled to full information about the statutory limits. Because he was not provided adequate information, he claims his plea was entered on a mistake of fact that undermined its voluntariness. We disagree.
First, the record does not support Valdez’s contention that his question was an attempt to confirm he would only serve three years of a seven-year sentence. When the court answered the question by stating that probation would calculate his custody credits and the information would be available to him at sentencing, Valdez responded, “All right.” Immediately afterward, the court asked if Valdez had any other questions and Valdez answered, “No.” We can infer from this exchange that Valdez’s question regarding custody credits was what it appeared to be: how many he had earned and that Valdez was satisfied with the answer he received. There is no indication in the record that the trial court misunderstood the question asked or failed to answer any question about limits on earning custody credits imposed by the plea. Valdez was not given misinformation. As we have already stated, the court was under no independent obligation to advise Valdez of the statutory credit limitation. (People v. Barella, supra, 20 Cal.4th at pp. 271-272.)
Second, Valdez’s assertion that he would not have entered the plea had he realized the custody-credit limitation increased the minimum time he would serve, is contradicted by the record made at the time of the plea. Valdez assured the court he was not entering his plea out of frustration with his attorney, but in order to take advantage of the offered reduced term of seven years rather than risk the 18-year term he potentially faced. The obvious advantage of the plea agreement has not changed, nor is there anything in this record to show that the risk exposure has lessened. Valdez makes no claim that he was provided ineffective assistance of counsel in his representation and cites to no evidence or changed circumstances making a guilty verdict less probable. We realize that Valdez claims innocence, but this is not an uncommon claim among those defendants who entered a guilty plea and are facing the reality of a prison sentence. “‘A plea may not be withdrawn simply because the defendant has changed his mind.’” (People v. Huricks, supra, 32 Cal.App.4th at p. 1208.) Valdez has received the benefit of the bargain—the reduced sentence—which the record establishes as motivating the plea agreement. (See People v. Waters (1975) 52 Cal.App.3d 323, 329 [although defendant argued he did not understand distinction between general right to appeal and right limited by probable-cause certificate when plea entered, defendant entered plea concerned only about motion to suppress and this issue was preserved for appeal].)
Valdez has not met his burden of showing by clear and convincing evidence that his plea was based on mistake, ignorance, or other factor overcoming the exercise of free judgment. The trial court did not abuse its discretion in denying Valdez’s motion to withdraw his plea.
Disposition
The judgment is affirmed.