Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM023561
DAVIS, P.J.
Defendant Juan Patino Alvarez pleaded no contest to driving under the influence of alcohol or drugs thereby causing injury or death (Veh. Code, § 23153, subd. (a)--count 1) and leaving the scene of an injury accident (Veh. Code, § 20001, subd. (a)--count 3). He admitted allegations that he injured multiple persons (Veh. Code, § 23558) and caused great bodily injury to one of the victims (Pen. Code, § 12022.7, subd. (a)) in the commission of count 1. A count of driving a vehicle and causing injury or death with a blood alcohol level exceeding 0.08 percent (Veh. Code, § 23153, subd. (b)--count 2) and related enhancements were dismissed. Following entry of the plea, the court reconvened and took the identical plea using a corrected plea form. Defendant moved unsuccessfully to withdraw the second plea on the ground that a Spanish interpreter, who had been present for the first plea, was not present for the second plea. The trial court sentenced defendant to state prison for nine years, consisting of the two-year middle term on count 1, three years each for the two enhancements, and one year for count 3.
The original plea form has an “X,” rather than defendant’s initials, in the box for a “Harvey waiver.” (People v. Harvey (1979) 25 Cal.3d 754.) At the hearing, the prosecutor moved to dismiss count 2, and the court granted the motion. No Harvey waiver was entered.
On appeal, defendant contends (1) the trial court abused its discretion in denying defendant’s motion to withdraw the second plea, and (2) his constitutional rights to counsel, due process, fair trial and an interpreter were violated. We shall affirm the judgment.
PROCEDURAL BACKGROUND
The facts of defendant’s offenses are not at issue and need not be set forth in this opinion.
In October 2005, defendant appeared for arraignment with the assistance of a certified Spanish interpreter. Defendant waived his right to a preliminary hearing. His counsel explained that there might be a negotiated resolution of the case within a few weeks.
In November 2005, defendant appeared in court with the assistance of another certified Spanish interpreter. At defense counsel’s request, the proceeding was recessed while the interpreter translated the plea form to defendant in Spanish. Counsel explained that defendant “does understand English to a degree, but I would feel more comfortable in entering this plea with the Spanish interpreter.”
The plea form is captioned “Plea of Guilty (Felony or Misdemeanor).” Below the caption is the heading, “Drug Offenses - Deferred Entry of Judgment.”
Below the heading the plea form states: “The defendant in the above-entitled action, having been found suitable and having received notification from the prosecuting attorney pursuant to P.C. 1000.1, in support of his/her motion to change his/her plea(s) in open court, personally and by his/her attorney, does declare that his/her attorney in this case is Kenneth A. Miller and does further declare as follows.” (Italics added.)
The form next states: “Defendant, initial only in the boxes preceding statements that you have read, understand, and with which you agree.” (Original emphasis.)
Defendant initialed paragraph 1, reflecting his pleas to counts 1 and 3; and paragraph 2, reflecting his admission of the enhancements.
Defendant did not initial, and an “X” appears, by paragraph 3, which states: “I have not been induced to enter the above plea by any promise or representation of any kind, except that I understand that the court will defer a finding of guilt and entry of judgment contingent upon my completion of an approved drug program pursuant to Penal Code section 1000-1000.4. Upon my successful completion of the program, but no sooner than 18 months nor later than 3 years from the date of my referral to the program, the court would be required to dismiss the charge or charges against me.” (Italics added.)
Defendant did not initial, and an “X” appears, by paragraph 4, which waives any right to direct appeal.
Defendant initialed paragraph 5, confirming his right to counsel; and paragraphs 6 through 10, indicating his understanding of, and waiver of, his constitutional rights.
Defendant did not initial, and an “X” appears, by paragraph 11, which states: “I understand that I have the right for pronouncement of judgment and sentence to occur within the statutory time periods. I understand that by entering this plea and requesting deferred entry of judgment pursuant to Penal Code section 1000 et seq., I am waiving time for judgment and sentence. Should I fail to successfully complete the drug diversion program, be convicted of a misdemeanor that reflects my propensity for violence, be convicted of a felony or engage in criminal conduct which renders me unsuitable for diversion, the court may, upon a finding of any of the above, render a finding of guilt upon this plea, enter judgment and sentence me.” (Italics added.)
Defendant initialed paragraph 12, indicating his understanding of the maximum sentence (10 years state prison and $27,000 fine); paragraph 13, acknowledging other possible consequences of the plea; paragraph 14, acknowledging consequences of noncitizenship; and paragraph 15, regarding possible revocation of probation or parole in other cases.
Defendant initialed paragraph 16, confirming his plea and admissions; paragraph 17, stipulating to a factual basis for the plea; paragraph 18, applying his constitutional rights to all enhancements; paragraph 19, admitting the enhancements; and paragraph 20, acknowledging the ban on possession of firearms.
Defendant did not initial, and an “X” appears, by paragraph 21, relating to a ban on receipt of public assistance.
Defendant initialed paragraph 22, granting an Arbuckle waiver.
People v. Arbuckle (1978) 22 Cal.3d 749.
Defendant did not initial, and an “X” appears, by paragraph 23, related to weapons involved in the case.
Defendant initialed paragraph 24, acknowledging that the matter of probation and sentence is to be determined solely by the trial court.
Defendant did not initial, and an “X” appears, by paragraph 25, granting a Harvey waiver.
Defendant initialed paragraph 26, acknowledging that he was entering his plea freely and voluntarily; paragraph 27, stating he was pleading guilty because he was in fact guilty; and paragraph 28, acknowledging that he was sober and his judgment was not impaired.
The Spanish interpreter signed the plea form under “Interpreter’s Statement (if applicable).”
In January 2006, the court took defendant’s plea using a corrected plea form. No Spanish interpreter was present, and no interpreter signed the corrected plea form.
The prosecutor explained that the probation officer had pointed out that the “original plea was taken on a PC 1000 felony plea form.” “[O]ut of [an] abundance of caution,” the prosecutor had asked defense counsel to complete a standard felony plea form. Defense counsel acknowledged that the new plea form “simply corresponds in every detail to the previous plea form.”
The trial court conducted a further plea colloquy without the assistance of a Spanish interpreter. The court questioned defendant in English, and he responded in English. Defendant indicated that he had read, understood and signed the plea form; indicated his willingness to give up his constitutional rights; indicated his understanding of the penalties and consequences of the plea; and would be entering the plea voluntarily. This exchange then occurred:
“THE COURT: Any threats or promises been made to get you to do that today?
“THE DEFENDANT: Yes.
“THE COURT: Have any threats or promises been made to get you to enter a plea today?
“THE DEFENDANT: No.”
Defendant then pleaded no contest to both counts and admitted the enhancements.
Later that month, defendant filed a substitution of attorney. In March 2006, defendant’s new attorney made a motion to withdraw his plea. In the motion, defendant claimed he had been “hurried” into signing the second plea form without the assistance of a Spanish interpreter. Defendant also claimed his former attorney had promised him probation, and he had “absolutely no idea” what was contained in the second plea form. Defendant argued that through ineffective assistance by his former attorney, mistake, ignorance or inadvertence, he did not freely and voluntarily waive his constitutional rights. In support of the motion, defendant declared that his former attorney promised him probation and that he “did not know or understand any of the court proceedings.” Defendant admitted that he understood “oral English pretty well.” However, he claimed that he was incapable of reading or writing in English. He further claimed that at the January 2006 plea hearing, his first affirmative answer to the court’s question about whether anyone had promised him anything had been correct.
In April 2006, the trial court conducted a hearing on the motion. A Spanish interpreter was present. The court noted that it was unclear from the file whether defendant truly needed the assistance of an interpreter. Defendant’s counsel explained that defendant understood spoken English, but not written English. Counsel argued that, since the first (interpreted) plea was taken on a deferred entry of judgment form, defendant believed he would get probation. Counsel also suggested that defendant had been advised that he was entering a deferred judgment plea. Counsel further argued that, when the second (noninterpreted) plea was taken, defendant still believed that he was going to receive probation or a deferred entry of judgment.
The trial court found that defendant had not established good cause to withdraw his plea.
DISCUSSION
I
Defendant contends the trial court “erred and abused its discretion” when it denied his motion to withdraw his plea pursuant to Penal Code section 1018. We disagree.
A plea of no contest may be withdrawn at any time before judgment for good cause. (Pen. Code, § 1018; People v. Cruz (1974) 12 Cal.3d 562, 566; In re Vargas (2000) 83 Cal.App.4th 1125, 1142; People v. Hunt (1985) 174 Cal.App.3d 95, 102 (Hunt).) “Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.] But good cause must be shown by clear and convincing evidence.” (Cruz, supra, at p. 566; accord, Hunt, supra, at p. 103.) “Grant or denial of a motion [to withdraw] lies within the trial court’s sound discretion after consideration of all factors necessary to effectuate a just result; a reviewing court will not disturb its decision unless abuse is clearly demonstrated.” (Hunt, supra, at p. 103; see People v. Jordan (1986) 42 Cal.3d 308, 316.) “Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.” (Hunt, supra, 174 Cal.App.3d at p. 103.) It is well established that, in ruling on a motion to withdraw a plea, the trial court is not required to accept the defendant’s uncontradicted statements at face value. (Hunt, supra, at p. 103; People v. Brotherton (1966) 239 Cal.App.2d 195, 201.)
Defendant claims he established good cause to withdraw his plea because he did not have an interpreter at the January 2006 hearing; believed that he would receive probation; did not understand the direct consequences of his plea; and received ineffective representation from his counsel. He claims his plea could not have been voluntary since he did not understand it.
The Attorney General counters that the “plea deals” in November 2005 and January 2006 were “exactly the same.” In his view, the only difference was that the title on the first plea form read, “Drug Offenses -- Deferred Entry of Judgment.” However, all of the boxes adjacent to the paragraphs that discussed the workings of a deferred entry of judgment had been crossed out and did not contain defendant’s initials. Defendant initialed the box immediately following the paragraph that explained that he had read and understood that he would only initial the boxes that applied to him. Thus, the Attorney General asserts it was “perfectly clear” to defendant at the November 2005 hearing that he was “not entering a deferred judgment plea.”
In his reply, defendant does not suggest the two “plea deals” differed in any respect; he simply claims the first form’s title, “Drug Offenses -- Deferred Entry of Judgment,” “could have been understood by [defendant] to mean that he was to receive probation, not prison.” However, if he understood the properly interpreted and translated form to promise him probation, his understanding was not reasonable. (See People v. Toscano (2004) 124 Cal.App.4th 340, 345, citing United States v. De La Fuente (9th Cir. 1993) 8 F.3d 1333, 1337, fn. 7 [terms of plea contract must be interpreted based on defendant’s reasonable beliefs].) That is so for three reasons.
First, the November 2005 form’s title, “Drug Offenses -- Deferred Entry of Judgment,” explicitly refers to deferred entry of judgment in cases involving drug offenses. No drug offense was charged or disposed of in this case.
Second, the first full paragraph below the title begins, “The defendant in the above-entitled action, having been found suitable and having received notification from the prosecuting attorney pursuant to P.C. 1000.1 . . . .” Defendant does not contend he received such notification from the prosecutor. Nor does he contend he reasonably believed he had been “found suitable” for deferred entry of judgment notwithstanding the lack of notification.
Third, defendant initialed the box indicating that he had read and understood that “the matter of probation and sentence is to be determined solely by the superior court judge.” With that understanding, he could not reasonably have believed that the form’s title somehow promised him probation, regardless of the judge’s determination.
We thus reject defendant’s claim that he reasonably understood the first plea form to promise him probation. The trial court’s failure to provide an interpreter at the second plea hearing could be prejudicial only if the second plea form and its plea colloquy differed materially from the first plea form and its plea colloquy. For the reasons stated, we reject defendant’s claim of material difference.
Because defendant did not reasonably understand the first plea form to promise him probation, and the second plea form was not materially different than the first plea form, the trial court was not required to conclude that, as a result of ignorance or mistake, defendant failed to understand the second form. Rather, the court could conclude that the forms were, in material respects, the same; that defendant’s understanding of them was the same; and that his understanding would not have been different had defendant’s trial counsel requested an interpreter for the January 2006 hearing. The court’s determination that defendant has not shown good cause for withdrawal of the plea was not an abuse of discretion. (Hunt, supra, 174 Cal.App.3d at p. 103.)
II
Defendant contends the lack of an interpreter at the January 2006 plea hearing violated his state constitutional right to an interpreter (Cal. Const., art. I, § 14) and his federal and state rights to due process, fair trial and counsel (U.S. Const., 5th, 6th & 14th Amends.; Cal. Const., art. I, §§ 7, 15). We are not persuaded.
Article I, section 14 of the California Constitution provides in part that criminal defendants who do not understand English have a right to an interpreter throughout the proceedings. However, defendants who request an interpreter have the burden to show an affirmative need. (In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1453; People v. Carreon (1984) 151 Cal.App.3d 559, 566-567.) The standard of review of a claim of denial of an interpreter is whether the omission was harmless beyond a reasonable doubt. (People v. Rodriguez (1986) 42 Cal.3d 1005, 1010 (Rodriguez); Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].)
Defendant claims this is a case of “‘complete deprivation of the assistance of an interpreter’” within the meaning of Rodriguez, supra, 42 Cal.3d at page 1014, footnote 6; thus, the record suffices to demonstrate an error requiring reversal. We disagree. Nothing in Rodriguez suggests that a “complete deprivation” occurs when a plea proceeding, at which an interpreter was provided, is later repeated for the sole purpose of transferring the plea agreement onto the proper plea form.
The Attorney General contends the failure to provide an interpreter, if error, was harmless beyond a reasonable doubt. We agree.
Defendant had the assistance of an interpreter for all proceedings except the January 2006 hearing. That hearing was conducted so that a different form could be used to embody the same plea agreement. The plea deal that was recorded at the January 2006 hearing was exactly the same as the deal that was struck in November 2005; for the foregoing reasons, we reject defendant’s claim that the “first and second plea agreements were markedly different.”
The November 2005 proceeding and plea form were translated into Spanish and defendant swore under penalty of perjury that he had read and understood the items that he initialed on the form. He could not reasonably have understood those items as offering him any assurance of probation. Had the January 2006 proceeding and plea form been translated into Spanish, defendant’s understanding of the plea agreement would have been the same. Thus, the error in failure to provide an interpreter was harmless beyond a reasonable doubt. (Rodriguez, supra, 42 Cal.3d at p. 1010.)
DISPOSITION
The judgment is affirmed.
We concur: ROBIE, J., BUTZ, J.
On the corrected plea form, the “Harvey waiver” box is empty. At the hearing on the corrected plea form, the trial court asked, “As I understand it, the balance will be dismissed with a Harvey waiver?” (Italics added.) The prosecutor answered, “That’s correct.” Defense counsel did not correct the court’s misunderstanding. The error is harmless because the trial court did not purport to rely on the dismissed matters at sentencing.