Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF134953 Janice McIntyre, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art VI, § 6 of the Cal. Const.).
Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, Lynne G. McGinnis, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
Defendant, Jose Manuel Vielmas, challenges his conviction on one count of participating in a criminal street gang (Pen. Code, § 186.22) and negotiated sixteen-month prison sentence after he pled guilty and then sought unsuccessfully to withdraw his plea. Specifically, defendant argues: 1) the trial court abused its discretion when it denied defendant’s motion to withdraw his guilty plea because it both applied the wrong standard and failed to recognize that his cognitive impairment precluded a knowing and voluntary plea; and 2) the plea lacked the factual basis required by section 1192.5. As discussed below, we reject these claims and affirm the conviction.
All section references are to the Penal Code unless otherwise indicated.
Statement of Facts and Procedure
On February 23, 2007, around 10:20 p.m., Riverside County Sheriff Deputies responded to a complaint about graffiti. They saw fresh gang graffiti on a fence, indicative of a particular criminal street gang. The reporting party described the suspect as a Hispanic male in his 20’s driving a minivan.
A few minutes later, the deputies saw a gray minivan pull out of a driveway. The deputies recognized defendant in the right front passenger seat. He was a known member of the street gang indicated in the graffiti. The deputies followed the van and called for backup. When the van stopped, defendant got out and hopped the fence to a home that was a few houses away from his residence. Defendant was detained in the back yard of his residence. The other occupants of the van were detained at gunpoint at the van.
A can of blue spray paint was found on the floor in front of the front passenger seat of the van, as well as blue paint on the middle bench seat and seat belt buckle. A can of black spray paint was found on the ground just outside the front passenger door. This paint matched the fresh graffiti on the fence.
Appellant had previously admitted his gang membership, had gang tattoos on his stomach and right leg, and had previous gang-related arrests and police contacts.
On March 23, 2007, the People filed a felony complaint charging defendant and two codefendants: in Count 1 with conspiracy to commit felony vandalism (§§ 182, subd. (a)(1) & 594, subd. (b)(1)) with a gang sentencing enhancement (§186.22, subd. (b)); in Count 2 with participating in a criminal street gang (§ 186.22); and in Count 3 with misdemeanor resisting arrest (§ 148, subd. (a)(1)).
On October 24, 2007, defendant pled guilty to Count 2, waived his right to a probation report and requested immediate sentencing. The court sentenced defendant to the negotiated term of 16 months, with defendant to surrender one month later.
On November 27, 2007, defendant was represented by newly retained counsel, who orally moved to withdraw the plea. Defendant’s motion was based on “the likelihood that the Defendant did not knowingly and intelligently waive his constitutional rights due to a cognitive disorder....” Over the next 19 months, the hearing on the motion was continued a number of times and defendant was evaluated by six different experts. The last three experts performed full psychological evaluations with competency testing in the three months before the trial court ruled on defendant’s motion. On June 19, 2009, the trial court denied defendant’s motion to withdraw his plea, basing his decision on “the weight of all doctors’ opinions... that he was able to enter a plea.” On June 26, 2009, the trial court remanded defendant to custody to serve his 16-month sentence. Defendant timely appealed and obtained a certificate of probable cause.
Defendant’s written motion was filed September 29, 2008.
Discussion
1. Motion to Withdraw Guilty Plea
Defendant first argues the trial court abused its discretion by applying the wrong legal standard.
“Penal Code section 1018 provides that a trial court ‘must’ allow the withdrawal of a guilty plea only in the case of a defendant who entered a guilty plea without counsel, and in other cases the court ‘may... for good cause shown, permit a plea of guilty to be withdrawn....’” (People v. Watts (1977) 67 Cal.App.3d 173, 184 (Watts); see People v. Cruz (1974) 12 Cal.3d 562, 566.) Good cause is shown by mistake, ignorance, inadvertence, or “‘any other factor overreaching defendant’s free and clear judgment, ’ [citation]” and the defendant has the burden of showing good cause by clear and convincing evidence. (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 797; People v. Cruz, supra, at p. 566.) The trial court then considers all factors necessary to obtain a just result, including the rights of the defendant. (People v. Superior Court (Giron), supra, at p. 798; People v. Waters (1975) 52 Cal App.3d 323, 331.) The trial court must examine whether the defendant understood the nature of the charges, the elements of the offense, the pleas, and the defenses at the time of his plea. (People v. Hunt (1985) 174 Cal.App.3d 95, 103.)
Here, the trial court framed the issue as “being whether defendant was able to enter a plea.” Defendant’s counsel himself framed the issue in the motion pleadings as “whether the Defendant was capable of understanding his Federal Constitutional right and knowingly and intelligently waiving them.” We conclude that these are both correct statements of the standard the trial court was to employ based on defendant’s claims - whether defendant was intellectually capable of voluntarily and intelligently entering the guilty plea.
Defendant then argues that the trial court abused its discretion when it denied his motion to withdraw the plea because its decision is not supported by substantial evidence.
“Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences. (Brady v. United States (1970) 397 U.S. 742, 748.) The pertinent inquiry in evaluating a plea is whether the record affirmatively shows the admission was voluntary and intelligent under the totality of the circumstances. (People v. Mosby (2004) 33 Cal.4th 353, 360.)
We agree with defendant that the trial court must make more than a competency determination, that it must “determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced.” (Godinez v. Moran (1993) 509 U.S. 389, 400, fn. 12.) In determining whether a defendant has shown good cause for granting a motion to withdraw a guilty plea, the reviewing court must adopt the trial court’s factual findings if they are supported by substantial evidence and may reverse only if the trial court has abused its discretion. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
Here, the trial court had before it seven reports and one letter from six different evaluators, nearly all of which support its decision to deny defendant’s motion. The first report, paid for by defendant, was dated January 6, 2008 and was prepared by Patricia Jennings, a marriage and family therapist. Jennings reported that defendant showed deficits in processing auditory information and presented as having low average intellectual functioning. Jennings recommended further testing “because the initial diagnostic impression certainly warrants additional investigation regarding his ability to understand and perceive his environment.”
The second and third reports were both submitted by psychologist David Jimenez, ED.D., at the request of the trial court. Both reports address the question of whether defendant was “presently mentally competent to stand trial pursuant to California Penal Code Section 1368, ” rather than his ability to enter a plea. In the first report, dated February 25, 2008, Dr. Jimenez concludes that defendant is mentally competent to stand trial. In the second report, dated April 14, 2008, Dr. Jimenez concludes that, while defendant “possesses the requisite capacity to knowingly and intelligently understand the implications of various pleas and waive his rights, ” he is not competent to stand trial because of his mild mental retardation. An intelligence test rated his mental age at a little less than nine years. On November 4, 2008, Dr. Jimenez submitted a letter to the court to clarify his conflicting opinions. Dr. Jimenez stated that he was persuaded by intelligence testing he performed for the second report that defendant was mildly mentally retarded and, as such, could not make effective use of counsel and so was not competent to stand trial.
Dr. Jimenez also notes that defendant stated regarding the plea bargain “I was going to take the deal but it would affect my ‘green card’, it could get taken away, I got a clean record but that’s affecting it.” This indicates a possible motive for defendant’s motion to withdraw his plea.
The fourth report is of a psychological assessment performed by Edward Pflaumer, Ph.D., to: 1) assess defendant’s eligibility for services from the Inland Regional Center; 2) address his competence to stand trial; 3) address his mental health status; and 4) determine if he was a danger to himself or others. After assessing defendant on July 28, 2008, Dr. Pflaumer concludes that defendant is competent to stand trial because: 1) he displays a basic understanding of the judicial process; and 2) he scored 24 out of 25 points on the CAST-MR test for competency, on which the threshold for competency is a score of 12. Although defendant has a full scale IQ of only 72, which is just above the threshold of 70 that is considered the “top end” for mild mental retardation, defendant displays the following strengths that are not found among the mentally retarded: 1) he reads at the high school level; 2) he earned money to buy a car, pass the driving test and obtain a driver’s license; and 3) he is able to successfully obtain and maintain employment over a period of time. For these reasons, Dr. Pflaumer concludes that, although defendant has certain “cognitive weaknesses, ” he is “clearly competent to stand trial.”
The fifth report is of a psychological assessment of defendant performed by Stuart Courtney, Ph.D. and dated April 9, 2009. Dr. Courtney concludes that defendant is competent to stand trial, in that he is not “impaired in his ability to understand the seriousness of the charges against him, the pleading process, or the possible consequences he may face.” Dr. Courtney also reports that, when he asked defendant whether he is competent to stand trial, defendant replied “that he believes he is.”
The sixth report is of a psychological assessment performed by Robert Suiter, Ph.D., Psy.D., dated April 23, 2009. Dr. Suiter concludes that defendant is competent to stand trial because: 1) he understands the judicial system and “has a gross understanding of the parameters of a plea bargain”; and 2) “is able to describe how he would reasonably assist his attorney with his defense.” Dr. Suiter opined that Dr. Jimenez’s opinion that defendant is not competent was overly influenced by defendant’s poor performance on intelligence testing, and that the competency testing, in which defendant is asked about his knowledge of the judicial process, is a better indicator of his ability to enter a plea.
The seventh report is of a psychological evaluation performed by Craig Rath, Ph.D., dated June 17, 2009. Dr. Rath concludes that defendant is not mentally retarded, but functions in the low-average intellectual range. Dr. Rath reports that defendant stated he did not understand the terms of the plea bargain because his attorney did not explain it adequately. “In other words, he is claiming that he did not understand his plea bargain because of ineffective assistance of counsel rather than an inability to understand.” Dr. Rath concludes that he “has no idea how well the plea bargain was explained to the defendant, but he was capable of understanding if it was explained to him as he has since demonstrated.”
To summarize the evidence the trial court had before it-a marriage and family counselor concluded defendant functioned in the low average intellectual range and should be assessed further; a psychologist initially found defendant competent to stand trial, but reversed that finding upon further testing of defendant’s intellectual functioning; a psychologist who performed a full psychological evaluation, including the CAST-MR test for competency, found defendant competent to stand trial despite his intellectual deficits; and three psychologists, who performed full psychological exams specifically tailored to determine whether defendant was capable of understanding and waiving his rights as part of a plea bargain, concluded that he was capable of doing so. This Court concludes that the record contains not only substantial, but overwhelming, evidence supporting the trial court’s decision to deny defendant’s motion to withdraw his plea.
2. Factual Basis for Plea
Defendant also argues his conviction should be reversed because the trial court violated section 1192.5 by failing to require a factual basis for his plea in the record.
“Section 1192.5 provides that for a conditional plea of guilty or no contest, the trial court is required to ‘cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.’ While there is no federal constitutional requirement for this factual basis inquiry, the statutory mandate of section 1192.5 helps ensure that the ‘constitutional standards of voluntariness and intelligence are met.’ [Citation.]” (People v. Holmes (2004) 32 Cal.4th 432, 438, fn. omitted (Holmes).)
“[A] trial court possesses wide discretion in determining whether a sufficient factual basis exists for a guilty plea. The trial court’s acceptance of the guilty plea, after pursuing an inquiry to satisfy itself that there is a factual basis for the plea, will be reversed only for abuse of discretion. [Citation.] A finding of error under this standard will qualify as harmless where the contents of the record support a finding of a factual basis for the conditional plea. [Citations.]” (Holmes, supra, 32 Cal.4th at p. 443, citing Watts, supra, 67 Cal.App.3d at pp. 173, 182.)
Here, the record contains a copy of the police report, which amply sets forth a factual basis for the plea. Therefore, any error by the trial court in not ascertaining a factual basis for the plea is harmless.
Disposition
The judgment is affirmed.
We concur: McKINSTER, J., KING, J.