Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM028145
RAYE, P. J.Defendant Nicholas Ray Baker pled no contest to assault with a semiautomatic firearm. He thereafter sought to withdraw his plea, arguing (among other things) that his then attorney performed “inadequate pre-plea/trial investigation” and the failure was “a factor that caused defendant to accept the plea bargain.” The court denied his motion and defendant appeals, contending the court erred in doing so. We find no abuse of discretion and shall affirm the order.
In presenting the background facts, we rely upon our previous unpublished opinion from defendant’s first appeal. (People v. Baker (Aug. 11, 2009, C059266) [nonpub. opn.] (Baker).)
Apparently upset over the breakup of his father’s marriage, defendant confronted his stepmother’s brother, Scott Thurston, whom he blamed for the breakup. Thurston told police at the scene that defendant put a gun to his head and threatened to kill him.
Charged with assault with a semiautomatic firearm, attempted criminal threats, and possession of a firearm by a felon, defendant changed his not guilty plea on the eve of trial to a no contest plea to the first charge in exchange for dismissal of the other two charges. He also admitted a prior strike conviction.
Attempts to Relieve Counsel
Defendant first expressed a desire to relieve his retained counsel, Grady Davis, three days before entering his no contest plea. The court asked defendant to “briefly indicate the reasons why” he wished to relieve counsel, and defendant responded (among other things) that counsel had failed to confer with him and failed to perform critical investigation.
The prosecutor also criticized defense counsel’s “mishandling” of the defense and concurred with defendant’s assertion that counsel “does not appear to be competent, ” “had not sought an investigator, ” and “appeared to be unaware [of] how much time his client was facing or what offenses qualified as a serious violence [sic] offense.”
After attorney Davis responded that he was “fully prepared to go to trial” and had interviewed all the witnesses, defendant announced, “I’m going to keep him now. I’ve changed my mind.”
But soon after entering his no contest plea, defendant sought to withdraw his plea, again asserting that attorney Davis had provided inadequate representation. During what the court described as “a Marsden-type hearing, ” defendant complained Davis told him prior to the plea that he would “probably” receive only a 10-year sentence and that Davis failed to engage an investigator, leaving defendant’s wife to conduct an investigation.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Defendant also told the court he wanted to “pull [his] plea” because he learned the victim had told attorney Davis “there was no injury” and, in any event, defendant’s father had confessed to the crime.
Attorney Davis disputed these assertions, and the court declined to relieve him. The court did, however, appoint attorney Robert Radcliffe, “to look into any grounds for withdrawing the plea.”
Defendant’s First Motion to Withdraw His Plea
Attorney Radcliffe filed a motion on behalf of defendant to withdraw his plea, on the following grounds: (1) defendant was “under duress” when he entered the no contest plea, rendering it involuntary; (2) defendant was misinformed by attorney Davis about the impact of his plea; and (3) attorney Davis had failed to properly investigate the case or prepare an adequate defense.
The court denied defendant’s motion and sentenced defendant to 18 years in state prison.
Following the denial of his motion to withdraw the plea, defendant appealed, arguing that the trial court erred in denying his request to discharge attorney Davis and erred thereafter in denying his motion to withdraw the plea. We agreed with defendant’s first contention and remanded the matter with directions that (among other possibilities) the trial court allow defendant to employ the retained counsel of his choice, or to apply for the appointment of counsel upon an adequate showing of indigence. If newly retained or appointed counsel determined there was a basis for moving to withdraw defendant’s plea, the court should consider and decide that motion. (Baker, supra, C059266).)
The Instant Motion to Withdraw the Plea
After remand, defendant’s new counsel brought a second motion to withdraw his plea, arguing that it had not been knowing, intelligent, and voluntary. “[D]espite what defendant said in open court and on the record about keeping Mr. Davis as his attorney, defendant was still concerned whether or not Mr. Davis was prepared to go to jury trial.” The plea offer made on the day of trial put “pressure” on defendant “to hurry up and make up his mind” and did not create a situation favoring “thoughtful reflection; i.e., a knowing, intelligent and voluntary plea.” When defendant expressed reluctance, attorney Davis “provided [him] with a note from defendant’s father and defendant’s wife urging him to accept the plea bargain, ” and defendant ultimately “caved in under the pressure and accepted the plea bargain.”
Defendant also claimed to have learned from “informal investigation post-plea” that both the victim and defendant’s father might have testified at trial differently than their reports to officers at the scene, and an additional witness might have been discovered. In sum, he argued, “there was inadequate pre-plea/trial investigation and that was also a factor that caused defendant to accept the plea bargain.” The People opposed the motion, and the trial court conducted a hearing.
At the hearing, defendant testified he originally attempted to relieve attorney Davis because he “didn’t investigate [the] case at all. He was telling me that there was no deal, that you’re looking at 41 years in prison... he didn’t ask what even happened.” But they spoke and Davis “reassured” defendant and also agreed to allow Davis’s (former) wife (also an attorney) to assist him, so defendant decided to keep him. The night before trial, defendant and Davis discussed trial tactics, including defendant’s anticipated testimony. Davis told defendant there was no plea offer, and that he faced a possible 44-year sentence if found guilty.
On the day of trial, according to defendant, Davis “pushed an 18-year plea bargain in [defendant’s] face” and said, “you need to take this.” They discussed whether his actual sentence might be less than 18 years. When defendant asked Davis if he was “ready to go to trial[, ]” Davis responded, “I don’t want to go to trial. You’re guilty of something.” Defendant was reluctant to take the plea bargain, but he did because he did not feel like he had any other options.
Thurston testified (contrary to his reports to police) that defendant never actually pointed the pistol at him; rather, Thurston said he grabbed the gun as defendant held it, put the barrel to his head, and said, “Shoot me, shoot me.” Thurston reported he had been diagnosed “bipolar, schizophrenic, PTSD, ” but on the day of the crime, he had not taken his prescribed medication; when he fails to take his medication, he “can’t function right, ” and his ability “to tell what’s real” and to remember are affected. Thurston also testified he met with attorney Davis and gave him a written statement declaring defendant innocent, asking that the charges be dropped, and explaining his mental health issues.
Defendant’s father testified he saw defendant point the gun in Thurston’s direction and wave it back and forth; a moment later, he saw “the gun was against [Thurston’s] head, but [Thurston] had a hold of it” and Thurston was saying, “Do it, do it.” He admitted having previously told police that defendant “put the gun to [Thurston’s] head” and may also have told the officer defendant threatened to kill Thurston. Defendant’s father reported he met with attorney Davis three times; defendant’s fiancée Kelly was present for all three meetings and Thurston was present during two, at which they discussed what had happened. On the date of the plea bargain, Davis told defendant’s father he felt the evidence against defendant was strong, and defendant’s father advised him to “take the deal” because he was worried about the possible maximum sentence, wanted defendant “not to put the family through this, ” and “was hoping [defendant] would” be influenced by that advice.
Defendant’s fiancée Kelly testified she hired attorney Davis. She also “rounded... up” Thurston and defendant’s father and brought them to Davis’s office for what she described as a single meeting with him, during which there “wasn’t much questioning. It was basically play[ing] the [audio tapes of statements given to police] and he looked at a couple of papers and that was [it], and said he’d be back in contact with us, or with them.” Kelly also testified she was contacted by a woman named Melanie Woodbury, who gave Kelly a written statement of what she witnessed of the incident. Kelly passed the statement along to Davis, but he never contacted Woodbury.
Woodbury’s statement describes defendant’s argument with “another man, ” a portion of which occurred inside a trailer; it does not mention a gun.
Ruling from the bench, the court stated it was “familiar with this case now for two years” and recalled it had taken “a very careful plea, ” and “[a]t no time... did [defendant] express any dissatisfaction with Mr. Davis whatsoever.” The court found “totally unbelievable” Thurston’s story that defendant was only waving the gun around and Thurston pulled it to his own forehead. “I am going to find that the plea was entered into freely and voluntarily[;]... I have no evidence at all... no convincing evidence, certainly no clear and convincing evidence -- that Mr. Davis was incompetent in preparing for the trial. [¶] [Defendant’s] father himself told me that he met with Mr. Davis three times, that Kelly was present all of those times, Mr. Thurston was present at least twice. He talked to everyone. This is not coming from Mr. Davis, this is coming from your side.... [¶] So, I am going to deny the motion to set aside the plea.”
DISCUSSION
I.
A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. (In re Vargas (2000) 83 Cal.App.4th 1125, 1142 (Vargas); People v. Castaneda (1995) 37 Cal.App.4th 1612, 1616–1617.) “Section 1018 provides that, ‘... On application of the defendant at any time before judgment... the court may, ... for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.’ Good cause must be shown for such a withdrawal, based on clear and convincing evidence. [Citation.]” (People v. Mickens (1995) 38 Cal.App.4th 1557, 1561; see also People v. Hunt (1985) 174 Cal.App.3d 95, 102–103.)
“To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.] Other factors overcoming defendant’s free judgment include inadvertence, fraud or duress. [Citations.]” (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208 (Huricks).)
The entry of a plea must be a “‘voluntary and intelligent choice among the alternative courses of action open to the defendant.’ [Citations.]” (Hill v. Lockhart (1985) 474 U.S. 52, 56 [88 L.Ed.2d 203] (Hill).) The voluntariness of a plea depends on “whether counsel’s advice ‘was within the range of competence demanded of attorneys in criminal cases.’ [Citation.]” (Ibid.) It is well settled that where ineffective assistance of counsel results in the defendant’s decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea. Thus, for example, when the contention is that incompetent advice led to a defendant’s pleading guilty, a defendant must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel’s incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial. (In re Alvernaz (1992) 2 Cal.4th 924, 934; Vargas, supra, 83 Cal.App.4th at p. 1133.)
In this context, a defendant bears the normal burden of establishing a claim of ineffective assistance of counsel: first, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment, and the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Second, the defendant must show that the deficient performance prejudiced the defense. To establish prejudice, he must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Williams v. Taylor (2000) 529 U.S. 362, 390-391 [146 L.Ed.2d 389]; Strickland v. Washington (1984) 466 U.S. 668, 687, 694 [80 L.Ed.2d 674] (Strickland); see also Vargas, supra, 83 Cal.App.4th at pp. 1132-1133.)
The grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result, and on appeal, the trial court’s decision will be upheld unless there is a clear showing of abuse of discretion. (People v. Shaw (1998) 64 Cal.App.4th 492, 495–496 (Shaw).)
II.
Pleas may be set aside if the defendants are unduly influenced to accept a plea because their counsel are not prepared to proceed. (Vargas, supra, 83 Cal.App.4th at p. 1142; People v. Eastman (2007) 146 Cal.App.4th 688, 697.)
For example, the petitioner in Vargas, supra, 83 Cal.App.4th 1125 sought permission to withdraw his plea on the ground he did not receive effective assistance of counsel because (among other things) she “failed to investigate the facts of the case” (id. at p. 1136) and “was not prepared to proceed to trial and was unable to adequately represent him, had the matter proceeded to trial” (id. at p. 1138). Based on the lack of credible evidence to establish that the defendant’s attorney conducted an adequate investigation and “strong evidence” that she was “lying” about contacting witnesses, the court concluded that an evidentiary hearing was required to ascertain whether an investigation was warranted, whether counsel conducted an investigation, and whether any investigation was sufficient or perfunctory. (Ibid.) Additionally, based on the lack of credible evidence that the defendant’s attorney was prepared to represent the defendant, the court concluded an evidentiary hearing was required to determine whether defense counsel was prepared for trial. (Id. at p. 1139.)
Defendant argues here the trial court erred in failing to “assess[] trial counsel’s conduct under the two-prong standard of Strickland v. Washington[, supra, ] 466 U.S. 688” and in concluding that the evidence of attorney Davis’s incompetence was not clear and convincing.
“In evaluating a defendant’s claim of deficient performance by counsel, there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance’ [citations], and we accord great deference to counsel’s tactical decisions. [Citation.] Were it otherwise, appellate courts would be required to engage in the ‘“perilous process”’ of second-guessing counsel’s trial strategy. [Citation.] Accordingly, a reviewing court will reverse a conviction on the ground of inadequate counsel ‘only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.’ [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 979-980 (Frye), disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Defendant offers no authority for his suggestion that the trial court was required to recite on the record that it had applied the Strickland test in concluding that defendant failed to make the requisite showing of ineffective assistance of counsel, and we are aware of no such requirement. (Cf. Frye, supra, 18 Cal.4th at pp. 979-980.)
Nor, in our view, did the trial court abuse its discretion in concluding that defendant failed to establish by clear and convincing evidence that “there was inadequate pre-plea/trial investigation” constituting ineffective assistance and good cause for withdrawal of his plea. (Cf. Vargas, supra, 83 Cal.App.4th at pp. 1132-1133; Shaw, supra, 64 Cal.App.4th at pp. 495–496.)
To the contrary, the evidence showed Davis’s investigation included meeting with the percipient witnesses; defendant’s father -- a witness to the events -- testified he met with attorney Davis three times, and that victim Thurston met with him twice. Davis questioned the men about their statements to police, received from Thurston a written statement explaining Thurston’s mental health issues and his failure to take his medication on the day of the incident, and met again with Thurston at the courthouse. Davis also discussed with defendant trial tactics and defendant’s anticipated testimony. The trial court did not abuse its discretion in concluding that this evidence did not establish that defense counsel’s actions were outside “the range of competence demanded of attorneys in criminal cases.” (Cf. Hill, supra, 474 U.S. at p. 56 [88 L.Ed.2d at p. 208].)
Defendant’s argument that counsel’s performance fell below prevailing professional norms is unpersuasive. He complains that his fiancée Kelly had “collected” statements of defense witnesses, but nothing about her actions shows that Davis was incompetent in not accepting her assistance. He also cites criticisms of defense counsel’s performance by the prosecutor, but the prosecutor’s opinion of counsel’s performance does not constitute evidence.
Nor did defendant testify that any degree of perceived inadequate pretrial investigation “caused” him to accept the plea bargain, as he asserted in his motion to withdraw the plea. Whatever the prosecutor’s early criticisms of defense counsel, for example, defendant apparently did not credit them, because he thereafter decided to continue with Davis as his counsel. Nor did defendant testify that Davis indicated he was not ready to go to trial or that he believed him then to be unprepared. To the contrary, the evidence suggested the most persuasive factor in defendant’s acceptance of the plea bargain might have been his father’s advice that he accept it. (Cf. Vargas, supra, 83 Cal.App.4th at p. 1142.) That his initial “reluctance” at accepting the plea bargain was overcome after he received his father’s notes and his attorney’s reassurance that “[i]t says right here, 18-year plea bargain” does not mean his free judgment was overcome, and certainly not as a result of counsel’s incompetence. (Huricks, supra, 32 Cal.App.4th at pp. 1208-1209.) Briefly, pleas entered with reluctance, or upon persuasion by counsel or family members, are not involuntarily made. (Ibid.)
We see no abuse of the trial court’s discretion in denying defendant’s motion to withdraw his plea.
III.
Defendant also contends, and the People concede, that the abstract of judgment mistakenly deprived him of one day of custody credit to which he is entitled. The abstract of judgment states he is to receive 975 days, when in fact he is entitled to 976 days. We agree and shall order the judgment so modified. (See People v. Acosta (1996) 48 Cal.App.4th 411, 428.)
DISPOSITION
The judgment is affirmed, except that the matter is remanded to the trial court with directions to amend the abstract of judgment to reflect an award of 976 days of custody credits, and to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: HULL, J., HOCH, J.