Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 04-1813, 05-1463, 05-1701, 05-1939
NICHOLSON, J.
In case No. 04-1813, defendant Dennis Michale Burns entered a negotiated plea of no contest to escape by force or violence (Pen. Code, § 4532, subd. (b)(2)), a plea of guilty to four counts of misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)(1)), and admitted a prior prison term allegation (Pen. Code, § 667.5, subd. (b)). The trial court imposed a seven-year term, suspended execution of the sentence, and granted five years of formal probation.
An upper term of six years for the escape charge plus an additional year for the prior prison term. At sentencing, defendant expressly waived his right to jury trial on the aggravating factors which the trial court used to impose the upper term.
Defendant subsequently entered a negotiated plea in which he pleaded guilty to misdemeanor petty theft in case No. 05-1463 (Pen. Code, § 666), assault by means of force likely to produce great bodily injury in case No. 05-1701 (Pen. Code, § 245, subd. (a)(1)), possession of methamphetamine in case No. 05-1939 (Health & Saf. Code, § 11377, subd. (a)), and admitted to violating probation in case No. 04-1813. The trial court denied probation and sentenced defendant to a prison term of seven years eight months.
Having obtained a certificate of probable cause, defendant appeals, contending the trial court should have allowed him to withdraw from the plea agreement due to the invalidity of the agreement and ineffective assistance of counsel. We disagree and affirm.
BACKGROUND
In case No. 04-1813, defendant, who was in custody, was taken to a location by law enforcement officials to help them find evidence. They stopped near a steep incline and walked along a hill, looking for an area defendant had previously traversed.
Defendant started to run down the road, heading away from the officers and vehicles. When he saw the officers chasing him, defendant ran down a steep embankment. He fell about 50 to 70 feet down the hill and was bleeding from the head. After the officers told him to stay there so they could check his injuries, defendant got up, continued down the embankment, and started up the other side of the gulley. Defendant was trying to remove his handcuffs when the officers finally caught him.
In case No. 05-1463, defendant entered the car audio department of A-1 Auto in Yreka, and said, “I guess no one is going to help me, so I will help myself.” Defendant then took an amplifier and drove off. He was subsequently apprehended and admitted taking the amplifier.
In case No. 05-1701, an officer was dispatched to a Yreka home at 12:32 a.m. to investigate a reported disturbance. Mark Montgomery told the officer he and his girlfriend were in front of their home while defendant was on the front porch making rude comments to Montgomery’s girlfriend. Montgomery told defendant to stop and he replied, “Come on, let’s do this.” Defendant approached Montgomery, who retreated into the house with his girlfriend after she yelled, “He’s got a knife.” Montgomery heard something hit his outside door as they retreated. Defendant soon appeared with a baseball bat and smashed the windshield of Montgomery’s truck before fleeing the scene. An officer found a knife stuck in the wall, just inside the entry to the residence.
In case No. 05-1939, defendant was arrested on several outstanding warrants. A search of defendant revealed a Ziploc bindle which tested presumptively positive for methamphetamine.
Under the plea agreement, in exchange for the guilty pleas and admitting the probation violation, the prosecution agreed to reduce the charge of petty theft with a prior in case No. 05-1463 to misdemeanor petty theft, dismiss all other charges with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754), and to dismiss the prior strike and two prior prison term allegations in case Nos. 05-1463, 05-1701, and 05-1939. The maximum sentence under the plea would be seven years eight months.
In describing the terms of the plea, defense counsel made the following statement to the trial court: “I do need to let the court know that there is already a suspended state prison sentence in 04-1813 of seven years. The prosecutor has agreed, in exchange for resolution of all of these cases today, that that would be reopened. [¶] [Defendant] understands he still could get up to seven years and eight months. But his understanding also that he would have the opportunity to convince probation and this court to depart downward from that previously-suspended prison sentence.” (Italics added.) Neither the trial court nor the prosecutor commented on this statement.
On the day sentence was to be imposed, counsel informed the court defendant intended to withdraw the plea and asked for the appointment of substitute counsel to address the matter. Substitute counsel was appointed and defendant subsequently moved to withdraw the pleas. The trial court denied the motion and sentenced defendant under the terms of the plea.
DISCUSSION
I
Defendant contends he should have been allowed to withdraw his plea because the agreement was impossible to perform. We disagree.
In People v. Howard (1997) 16 Cal.4th 1081, 1088, our Supreme Court explained that, under Penal Code section 1203.2, subdivision (c), the trial court lacks jurisdiction to increase or decrease a previously imposed sentence. “On revocation of probation, if the court previously had imposed sentence, the sentencing judge must order that exact sentence into effect [citations] . . . .” (Ibid.)
Defendant contends part of his plea agreement was to reopen the sentence in case No. 04-1813 and give the trial court discretion to impose a lower term than the original seven-year sentence. Since Howard precludes the trial court from modifying the suspended sentence, defendant argues he could not get the benefit of his bargain and therefore should have been allowed to withdraw from the plea. In support of his claim, defendant relies on defense counsel’s description of the plea agreement, including the “understanding also that [defendant] would have the opportunity to convince probation and this court to depart downward from that previously-suspended prison sentence.”
Penal Code section 1018 provides in relevant part: “On application of the defendant at any time before judgment . . ., the court may, . . . for a good cause shown, permit the plea of guilty [or no contest] to be withdrawn and a plea of not guilty substituted. . . . This section shall be liberally construed to effect these objects and to promote justice.” “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.] However, ‘[a] plea may not be withdrawn simply because the defendant has changed his mind.’ [Citations.]” (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)
Although section 1018 is to be liberally construed, good cause for withdrawal of a guilty plea must be shown by clear and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562, 566.) Courts are especially cautious in allowing withdrawal from a negotiated plea. (People v. Weaver (2004) 118 Cal.App.4th 131, 146.)
“A decision to deny a motion to withdraw a guilty plea ‘“rests in the sound discretion of the trial court”’ and is final unless the defendant can show a clear abuse of that discretion. [Citations.] Moreover, a reviewing court must adopt the trial court’s factual findings if substantial evidence supports them. [Citation.]” (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
The statement of counsel upon which defendant relies is not the only statement relevant to our understanding of the plea. On the day trial counsel informed the court of defendant’s intention to withdraw the plea, she also told the court sentencing must be continued because defendant had not obtained a personal interview with the probation officer before the probation report was prepared. While making this complaint, counsel stated: “Just so the court’s aware, [defendant] had a suspended state prison sentence in the probation case of seven years. He was offered an opportunity to hopefully convince probation and the court to reinstate him on probation, or, at the worst case, he would have no additional time.”
Counsel then told the court about defendant’s intent to change his plea. Counsel, having examined the case and finding no legal ground for withdrawing the plea, inferred defendant’s complaint must assert ineffective assistance of counsel and therefore asked the court to appoint substitute counsel to investigate defendant’s claim. Substitute counsel investigated the claim and moved to withdraw the plea. Among the reasons asserted for withdrawing the plea was People v. Howard, supra, 16 Cal.4th 1081, preventing the trial court from departing downward from the seven-year sentence in case No. 04-1813.
In rejecting defendant’s contention, the trial court stated “the terminology may be a little bit inartful but the court is satisfied that [defendant] had the opportunity at sentencing to urge the probation department prior to preparation of a report and at sentencing to recommend a probationary term or reinstatement to probation with a county jail time, vice [sic] state prison commitment on the execution suspended of seven years. That, to me, is having the opportunity to argue for downward sentencing.”
The court also stated, in addition to there being no “absence of that bargain,” the real “advantage of this disposition was not necessarily the downward sentencing on the prior execution suspended, but rather the option of avoiding the strike allegations and the heavier sentencing under those provisions of [sections] 1192.7 and 667 of the Penal Code.”
The trial court is right. Trial counsel’s statement regarding the probation interview demonstrates an understanding that the plea agreement would be satisfied if the probation department and the trial court considered reinstated probation for defendant. Since the entire basis of defendant’s claim is trial counsel’s initial statement describing the plea, this subsequent remark is particularly relevant. The trial court’s conclusion, that counsel’s initial statement inartfully describes an agreement to allow the probation department and the trial court to consider imposing probation, is supported by substantial evidence.
While the trial court could not impose a lower prison term for the probation violation, it retained the discretion to reimpose probation so long as probation was not terminated. (People v. Medina (2001) 89 Cal.App.4th 318, 322-323.) Reimposing probation would have “departed[ed] downward” from the seven-year suspended term. The trial court exercised this discretion and declined to reimpose probation.
The probation department was not convinced by defendant, as its report was highly critical of the very advantageous terms for defendant under the plea agreement.
Defendant was given the opportunity to ask for probation. His sentence was no longer than the maximum term under the plea, and he avoided a potentially much longer term. Before the plea, defendant was facing four felony charges with allegations of a prior strike and two prior prison terms for each charge. As a result of his plea, his net sentence from these charges was adding eight months to the previously suspended seven-year term. Defendant received the benefit of a generous plea agreement and cannot now complain that it was violated.
II
Defendant also contends he should have been allowed to withdraw from the plea because trial counsel was ineffective for failing to interview the victim of the assault in case No. 05-1701. We reject the contention.
Mark Montgomery, the victim of the assault in case No. 05-1701, testified at the hearing on the motion to withdraw the plea. Montgomery denied ever seeing a weapon in defendant’s hands during the incident. According to Montgomery, he did not tell the officer he saw a silver-bladed knife in defendant’s hand. Montgomery was never contacted by defense counsel or an investigator for the defense.
The officer who interviewed Montgomery testified at the hearing. Montgomery told him he had seen a silver-bladed knife in defendant’s hands as defendant held his hands up in a fighting stance. Montgomery said he heard something like a rock hit his door as he left his front yard, but did not see who threw the object and did not know it was a knife when it was thrown. The knife was found stuck in a wall just inside the entry way near where Montgomery had been standing.
Assuming without deciding that counsel was deficient in failing to interview Montgomery before the plea, defendant would still not be entitled to withdraw from the bargain. In order for defendant to succeed on his claim of ineffective assistance of counsel, he must show “prejudice under a test of reasonable probability of a different outcome.” (People v. Osband (1996) 13 Cal.4th 622, 664.) As we have already noted, defendant received an extremely favorable result from the plea agreement.
The presence of possibly favorable testimony, which was contradicted by the interviewing police officer, on one of the four felony charges against defendant would not have changed the result. Even if he could mount a successful defense to the assault charge on the basis of Montgomery’s testimony, defendant still faced a significant sentence on the other charges in light of the strike and prison term allegations. A contested defense to one of the felony charges would not materially alter the very favorable nature of the plea agreement.
Defendant has not shown he would have a reasonable probability of a different outcome but for counsel’s alleged unprofessional errors. Since he has not established prejudice, we reject defendant’s claim of ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., CANTIL-SAKAUYE, J.