Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F10943
Retired Associate Justice of the Court of Appeal, Third Appellant District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
After his motion to suppress the evidence (Pen. Code, § 1538.5) was denied, defendant Manuel Carter entered a negotiated plea of no contest to transportation of a controlled substance (Health & Saf. Code, § 11352) and admitted a strike prior (Pen. Code, § 667, subds. (b)-(i), 1170.12) in exchange for dismissal of the remaining count (possession of cocaine base for sale), and a stipulated state prison sentence of six years, that is, the low term of three years, doubled for the strike prior.
After denying defendant’s motion to withdraw his plea, the court sentenced defendant to state prison for the stipulated term.
Defendant appeals. The trial court denied defendant’s request for a certificate of probable cause (Pen. Code, § 1237.5). We later issued a writ of mandate directing the trial court to vacate the order and to enter a new order granting the request for a certificate of probable cause. (Manuel Tonsel Carter v. Superior Court (C056013, filed November 28, 2007) [nonpub. opn.].) The trial court did so on March 10, 2008.
On appeal, defendant contends the trial court erroneously denied his suppression motion in that his detention was improper and unduly prolonged. Defendant also contends that his motion to disqualify Judge Hake and his motion to withdraw his plea were erroneously denied. We reject defendant’s claims and will affirm the judgment.
DISCUSSION
I
Defendant contends that the trial court erroneously denied his suppression motion in that the lack of a headlight on his bicycle led to an unduly prolonged detention. He claims the evidence seized from his person was obtained as a result of an illegal detention. We conclude that the trial court properly denied the suppression motion.
Background
About 5:29 p.m. on December 10, 2004, Sacramento Police Officer Chris Baptista and his partner Officer Binh Vu were patrolling the area of Del Paso and Oxford Streets in an unmarked patrol car. It was dark outside. They were in plain clothes and wore raid vests with “Police” written in bright yellow lettering across the back and front. They were part of the Violent Crimes Task Force. From 75 to 100 feet away, Officer Baptista observed defendant riding his bicycle without a headlight, going southbound on Del Paso in front of businesses and approaching Oxford; defendant’s bicycle was on the curb or on the curb line. Officer Baptista explained that the lack of a headlight constituted a violation of Vehicle Code section 21201, subdivision (d) which requires a visible light that “illuminates 300 feet to the front” of the bicycle while “in motion on a [] highway during darkness.” Defendant parked his bicycle outside Little Joe’s Restaurant and went inside. Officer Vu drove the unmarked patrol car around the restaurant and parked south of the restaurant. The officers walked up to the restaurant and found defendant exiting the restaurant. Officer Baptista estimated that 20 to 30 seconds had passed between the time he first saw defendant on his bicycle to the time the officers approached defendant in front of the restaurant. Officer Baptista explained to defendant the reason for the stop. Officer Baptista obtained defendant’s California identification card and, about a minute after the stop, used the radio on his person to request a records check. In about 20 to 30 seconds, Officer Baptista learned that defendant had eight outstanding misdemeanor warrants and one warrant from another county. Defendant was arrested based on the warrants and the officers conducted a search incident to defendant’s arrest. Inside defendant’s coat pocket, Officer Vu found a plastic baggie with 20 pieces of off-white rocks, some individually wrapped. On defendant’s person, Officer Vu also found cash and one of the officers found a functional cell phone. Officer Baptista went into the restaurant and canceled defendant’s food order.
At the time of defendant’s offense, Vehicle Code section 21201, subdivision (d), provided, in relevant part, as follows: “(d) Every bicycle operated upon any highway during darkness shall be equipped (1) with a lamp emitting a white light which, while the bicycle is in motion, illuminates the highway in front of the bicyclist and is visible from a distance of 300 feet in front and from the sides of the bicycle; . . .” (Stats. 1979, ch. 723, § 5, p. 2216.)
Nadia Ann Halaway was working at the restaurant. She testified on defendant’s behalf. She claimed that defendant rode his bicycle up and entered the restaurant about 5:30 p.m. About five or ten minutes after ordering a steak dinner, defendant went outside the restaurant to smoke a cigarette and the police officers immediately detained defendant and did so for 10 or 15 minutes. Then one of the officers came inside the restaurant and canceled defendant’s order, explaining defendant was going to jail.
After Halaway testified, defense counsel requested that a dispatch log be admitted into evidence. The log consisted of two pages from discovery. The prosecutor commented that the pages were a copy of a certified document and expressed no objection to the admission of the document. Defense counsel had no other witnesses. The court admitted the dispatch log into evidence.
Defense counsel argued there was no testimony that defendant was riding on a highway or public place as required by the Vehicle Code section allegedly violated. Defense counsel further argued that defendant was subject to a prolonged detention in that the log reflected that the stop occurred at 5:29 p.m. and the records check was not run until 5:51 p.m.
The prosecutor argued that defendant was riding on the curb, not on the sidewalk. The prosecutor asserted that there was no foundation and no explanation for the initial call and the inquiry into defendant’s name at 5:51 p.m. as reflected on the log. The prosecutor argued that defense counsel should have shown the dispatch log to Officer Baptista and asked him what the entries meant.
The trial judge commented that she was “not sure what [the dispatch log] tells [her] about what happened on this call.” Although recognizing defense counsel’s argument that the log would impeach Officer Baptista’s time estimates, the trial judge suggested that Officer Baptista’s time estimates were “general” and “not moored or connected to the dispatch times, . . .” With respect to defense counsel’s argument that Halaway’s testimony assisted defendant, the trial judge found that Halaway was “really not someone who could testify to specific times, . . .” The trial court found that the log without explanation was not helpful but asked whether defense counsel rested or if there was anything else to consider on the issue. Defense counsel conferred with the prosecutor off the record and then submitted the matter. The trial court denied defendant’s suppression motion, finding that the officers had reasonable cause to detain defendant for his Vehicle Code violation, obtained identification and then ascertained that defendant had a number of warrants for his arrest. The court found that the detention was not prolonged.
Analysis
“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716.) “‘“The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court.”’” (People v. Ramirez (1997) 59 Cal.App.4th 1548, 1558-1559.)
The duration of a traffic stop detention should be no longer than is reasonably necessary for the officer to complete his or her traffic-related duties, such as asking for and obtaining a driver’s license or identification, explaining the reason for the stop, writing the citation, and obtaining a promise to appear. (People v. McGaughran (1979) 25 Cal.3d 577, 584; People v. Miranda (1993) 17 Cal.App.4th 917, 927; Williams v. Superior Court (1985) 168 Cal.App.3d 349, 357-358 (Williams).) A warrant check is “permissible as long as [it does] not prolong the stop beyond the time it would otherwise take.” (People v. Brown (1998) 62 Cal.App.4th 493, 498 (Brown); People v. Bell (1996) 43 Cal.App.4th 754, 767.) The reason for this rule “is to preclude officers from imposing a general crime investigation upon the detained traffic offender that is not ‘reasonably necessary’ to completion of the officer’s traffic citation duties unless the officer has an independent reasonable suspicion that the driver has committed unrelated offenses.” (Williams, supra, at p. 358; Brown, supra, at pp. 498-499.) “The government interest in apprehending individuals with outstanding arrest warrants outweighs the minimal inconvenience to that already lawfully experienced by the offender as a result of his or her traffic violation.” (Brown, supra, at p. 498.)
“[T]he need to obtain reliable evidence of identification and ensure compliance with a promise to appear is equally great for a bicyclist as for a driver of a motorized vehicle. Although only the latter is obligated to have a license in his or her possession at all times while driving on the road ([Veh. Code,] § 12951, subd. (a)), both are required to produce satisfactory evidence of identity for examination when stopped for a violation of the law.” (People v. McKay (2002) 27 Cal.4th 601, 625, italics omitted.)
Defense appellate counsel relies on the dispatch records and Halaway’s testimony in making his argument on appeal that the detention was unduly prolonged. He argues, “[c]ontrary to [Officer] Baptista’s testimony, the dispatch records revealed that the warrant check occurred over 20 minutes after the stop.” In a footnote, defense appellate counsel states, “From the outset of the case, [defendant] had requested the dispatch tapes as well as the dispatch and CAD logs. The officers claimed they said nothing on the air about the stop. Whatever records existed, however, were not produced until sometime after April 11, 2005.” Defense appellate counsel also cites Halaway’s testimony that Halaway corroborated the dispatch records when she testified that the officers were with defendant for 10 to 15 minutes. Defense appellate counsel later argues, “While the officers testified that the warrant check was done within minutes of the stop, other evidence, including official police records, indicate that it took approximately 20 minutes. Thus, the warrant check was not done contemporaneously with the initial detention as allowed in McGaughran.”
Relying upon People v. Garcia (2006) 145 Cal.App.4th 782 (Garcia), defendant argues that after he produced his California identification card, he should have been cited for the lack of a headlight on his bicycle and released, rather than detained. Relying upon People v. Rodriguez (2006) 143 Cal.App.4th 1137 (Rodriguez), defendant argues that “the trial court’s refusal to credit the evidence of the length of the detention was error.”
Neither Garcia nor Rodriguez supports defendant’s argument as both are factually distinguishable. In Garcia, the defendant was lawfully detained for riding a bicycle without a headlamp. The defendant spoke limited English but said he had no identification. The officer proceeded to conduct a patdown for identification during which he found methamphetamine. (Garcia, supra, 145 Cal.App.4th at pp. 784-785.) Garcia concluded the patdown was unlawful since the officer had no facts to support a suspicion the defendant was armed and dangerous. (Id. at pp. 786-788.) In Rodriguez, the defendant was stopped for a burnt out brake light. Officers ran a warrant check and found a warrant for the defendant’s arrest. A search of the defendant’s car revealed methamphetamine. At the suppression hearing, the defendant’s employer testified that when he picked up the car, its taillights and brake lights worked. (Rodriguez, supra, 143 Cal.App.4th at p. 1141.) The trial court stated that it did not need to decide whether the officers had fabricated the reason for the detention, finding the outstanding warrant justified the search. (Id. at p. 1142.) The appellate court in Rodriguez remanded to the trial court for a factual determination and if a ruse, the methamphetamine had to be suppressed. (Id. at pp. 1148-1149.)
In Brown, supra, 62 Cal.App.4th 493, the defendant was on a bicycle and was stopped for lack of a light and reflectors. The defendant produced identification and the officer ran a warrant check that took one minute. While waiting for the warrant check, the defendant admitted he was on searchable probation and consented to a search which revealed methamphetamine. (Id. at pp. 495-496.) Brown concluded that the detention was not unduly prolonged. (Id. at p. 500.)
Defense appellate counsel’s argument that the detention was unduly prolonged in that the warrant check took more than 20 minutes is based on defense counsel’s argument below that the dispatch log reflected that defendant was stopped at 5:29 p.m. and a warrant check was not run until 5:51 p.m. The trial judge concluded, however, that the meaning of the entries on the dispatch log were not self-explanatory, contrary to defense counsel’s argument below, and thus, the log did not impeach Officer Baptista’s testimony concerning his time estimates. Thus, the trial court concluded that the warrant check did not take more than 20 minutes. The trial court instead credited Officer Baptista’s testimony that the stop and records check lasted but a couple of minutes. Officer Baptista estimated that 20 to 30 seconds had passed between the time he first saw defendant on his bicycle to the time the officers approached defendant in front of the restaurant. Officer Baptista obtained defendant’s California identification card and, within one minute, contacted dispatch. In about 20 to 30 seconds, Officer Baptista learned from dispatch that defendant had outstanding warrants. The trial court properly determined that the detention lasted no longer than was necessary for the officer to complete his duties.
Defendant was arrested based on the warrants and the officers conducted a search incident to defendant’s arrest. On defendant’s person, officers found 20 pieces of rock cocaine, cash and a cell phone. Because defendant’s challenge to his detention lacks merit, we need not discuss defendant’s claim that the rock cocaine, money and cell phone seized must be suppressed under the “‘fruit of the poisonous tree’” doctrine. (See Wong Sun v. United States (1963) 371 U.S. 471, 484-488 [9 L.Ed.2d 441, 453-455].)
II
Defendant contends that his attorney (John Roth) and Judge Hake “pressured” him into agreeing to a plea bargain. With new counsel, defendant moved to withdraw his plea and to disqualify Judge Hake from hearing such motion. Judge Candee denied defendant’s motion to disqualify Judge Hake. Judge Hake denied defendant’s motion to withdraw his plea. Defendant claims his motion to disqualify Judge Hake and his motion to withdraw his plea were erroneously denied.
Background on Entry of Plea
About 3:00 p.m. on September 29, 2005, Judge Hake commenced trial, noting that the prosecutor planned to file an amended information adding a charge of transportation of cocaine base to the already charged offense of possession of cocaine base for sale. Judge Hake also noted that the prosecutor had made an offer of the low term of three years, doubled for the strike prior, for a total prison term of six years, for either offense since both carried the same triad. Judge Hake proceeded to explain to defendant the advantages of entering a plea, including that defendant, his attorney and the prosecutor determined the outcome. Judge Hake mentioned several times that defendant could choose to proceed to a jury trial. Judge Hake explained that in the event the jury convicted defendant, the judge alone would decide his sentence which may mean more time based on defendant’s total exposure of 11 years 4 months, the midterm was the presumptive term, he (the judge) rarely dismissed a strike prior, and emotional pleas for less time were unpersuasive. Defendant decided to proceed with a jury trial. In discussing the amendment to add the transportation charge, the prosecutor noted the amended information removed the second strike which had been dismissed in the interests of justice. Defense counsel opposed the motion to amend, arguing the new charge exposed defendant to more time. Judge Hake reminded defendant that the amendment of the information might result in additional prison time. Judge Hake suggested the plea offer was advantageous. After hearing further argument, Judge Hake granted the prosecutor’s motion to amend the information subject to a later motion under Penal Code section 995. The court then proceeded to hear motions in limine.
The court stated: “Now, [defendant], I’m going to have sort of a one-sided conversation with you. I’m not going to ask you any questions so there are no answers to be worried about, and don’t provide any. If you think it’s a question don’t talk at all until you’ve spoken to your attorney. And the reason I’m having this conversation, and I do this with almost every single trial that I commence where there is an offer made by the prosecution to the defense and it appears to the Court that it’s a reasonable offer in view of the fact of what the potential sentence could be should you go to trial and be convicted.
The court stated: “[O]nce this information is amended and it is filed, then the determination to raise the ante is up to the district attorney because there will be an additional charge. Right now is only one count. I’m willing to forestall if the defendant wishes to take advantage of that fact. [¶] After it’s amended, we’ve got new rules. So, you know, this is the time to make the decision. We’re not spending any time here spinning our wheels. We’re moving forward.”
In the morning on October 3, 2005, Judge Hake denied the Penal Code section 995 motion. Prior to ruling, Judge Hake advised defendant that the plea offer was still available but that the prosecutor wanted defendant to enter a plea to transportation with a stipulated low term doubled. Judge Hake reminded defendant that after trial and if convicted, he should not presume that the same amount of time would be imposed since the midterm was the presumptive term which would be doubled for the strike and that there was a “possibility” of consecutive sentences. Judge Hake noted that jury selection would commence at 1:30 p.m. that afternoon. The court queried whether defendant desired time to discuss the plea offer with counsel. Defense counsel suggested that defendant may be interested in entering a plea if the court would issue a certificate of probable cause so that defendant could challenge the denial of the suppression motion. The court was not inclined to engage in plea bargaining with defendant and would not promise in advance to grant a certificate of probable cause. The prosecutor stated that she believed a plea bargain would not preclude defendant from challenging the ruling on the suppression motion and was inclined to withdraw the offer. Defendant chose to go to trial.
The court stated: “So what you’re really asking for is you’re asking for the Court in advance even before it’s a matter before the Court since the defendant has not filed any such statement along with an appeal, you’re asking for the Court to make a promise that should he file such a statement within 20 days, thereafter the Court would grant and issue a certificate of probable cause. [¶] Now, I’m not going to do it. I don’t plea bargain. I’ve told your client I will not plea bargain. I will accept a plea bargain between him, yourself, and the prosecutor. I’m not plea bargaining. I won’t do it. It’s not timely, and I’m not going to make the promise that should he file the necessary statement that I would grant such a certificate. [¶] . . . [¶] . . . I don’t plea bargain to get pleas. I never have and I never will. I can’t say never will. I never have. I don’t think I ever will, and I won’t in this case. [¶] If you want to take the offer right now, take the offer and let’s move this on or else go to trial. The jury is waiting down there. . . .” Defendant stated that he chose to go to trial and the prosecutor responded, “All offers are off the table at this point.” The court then stated, “No offers. It’s your life, sir, your time, but then the winter’s coming on and it’s probably pretty nice in a sheltered facility should you be convicted.”
After denying the Penal Code section 995 motion and arraigning defendant on the amended information, the court denied defense counsel’s request for a one-day continuance. Defendant personally moved to disqualify Judge Hake, stating, “With all due respect, I would like to file a 170.6, sir.” The court noted that the case had already been assigned “out of master calendar” and the motion was untimely.
Defendant does not raise a separate issue on appeal with respect to this motion. He raises an issue with respect to the denial of a subsequent disqualification motion brought by new counsel.
In the afternoon on October 3, 2005, defendant entered a no contest plea to transportation of a controlled substance and admitted a strike prior in exchange for dismissal of the remaining count and a stipulated state prison sentence of six years, that is, the low term of three years, doubled for the strike prior. The court advised defendant of his rights, obtaining his waiver of the same, and the consequences of his plea. Defense counsel confirmed that he had discussed the elements of the charges and possible defenses with defendant and defendant confirmed that defense counsel had done so. Defendant denied that anyone had threatened him or anyone else in any way to enter a plea of no contest. Defendant had no questions before entering his plea. Defendant confirmed that he was entering a plea of no contest, having fully discussed the case with defense counsel, to avoid greater punishment if convicted on the charges by a jury. Defense counsel agreed to the statement of facts as representing the People’s evidence. When asked, defendant stated he had no comment about the factual basis for the plea. The court found that defendant’s plea was made knowingly, intelligently and voluntarily.
Motion to Disqualify
On March 10, 2006, new counsel filed a motion to disqualify Judge Hake pursuant to Code of Civil Procedure section 170.1. New counsel relied upon the declarations of defendant in support of the motion. Defendant stated: Judge Hake granted the motion to amend the information without considering his prior attorney’s objections on the ground of timeliness; Judge Hake was angered by defendant’s motion to challenge the judge; Judge Hake repeatedly stated that defendant would be found guilty; Judge Hake stated that he knew what defendant had meant by defendant’s statement to officers at the time of his arrest (he was “getting back in the game”) and refused to listen to defendant when he tried to explain; Judge Hake advised that he would be convicted based on his record; Judge Hake advised that his defense of simple possession did not matter because he was charged with transportation; and defendant believed Judge Hake would sentence him to more time if he proceeded to jury trial. Judge Hake filed an answer denying that he was in any way disqualified.
In denying defendant’s motion to disqualify Judge Hake, Judge Roland Candee reviewed the reporter’s transcript of the court proceedings from September 29, 2005, through February 24, 2006. In reviewing the court proceedings on September 29, 2005, and October 3, 2005, Judge Candee concluded that Judge Hake had been concerned that defendant understood the benefits of accepting and the consequences of rejecting the prosecutor’s plea offer and that he had not prejudged the case or prevented defendant from having a fair and impartial jury trial.
Analysis
Citing Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii), defendant contends disqualification of Judge Hake was required because the record reflects a factual basis for a reasonable doubt as to the judge’s impartiality. Defendant asserts he was denied due process of law by the judge’s appearance of bias.
Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii) provides that a judge is disqualified if, for any reason, “[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”
Code of Civil Procedure section 170.3, subdivision (d) provides, in relevant part, as follows:
“The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought only by the parties to the proceeding.”
The record does not reflect that defendant challenged Judge Candee’s ruling by a writ. Although a statutory motion to disqualify a judge is subject to review by a writ (Code Civ. Proc., § 170.3, subd. (d)), defendant can raise on appeal a “constitutionally based challenge asserting judicial bias.” (People v. Chatman (2006) 38 Cal.4th 344, 362, italics omitted (Chatman).) An objective standard applies and potential bias and prejudice must be clearly established. (Id. at p. 363.) “A judge’s ordinary efforts at courtroom administration--even a stern and short-tempered judge’s ordinary efforts at courtroom administration--remain immune.” (Liteky v. United States (1994) 510 U.S. 540, 556 [127 L.Ed.2d 474, 491] (Liteky).) In discussing a federal statute related to recusal where impartiality might be questioned, Liteky explained, “opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings . . . do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” (Liteky, supra, 510 U.S. at p. 555.)
Chatman did not address the distinction between actual bias and the appearance of bias since the defendant in that case had shown neither.
Nothing in the record suggests the trial court harbored “deep-seated favoritism or antagonism that would make fair judgment impossible” (Liteky, supra, 510 U.S. at p. 555 [127 L.Ed.2d at p. 491]), nor does the record “‘support a doubt regarding [the trial judge’s] ability to remain impartial.’” (Chatman, supra, 38 Cal.4th at pp. 363-364.)
Defendant stated that the court granted the prosecutor’s motion to amend the information with little consideration of his prior attorney’s timeliness objection. Judge Hake had the authority to grant the motion (Pen. Code, § 1009) and, contrary to defendant’s complaints, heard and considered defense counsel’s opposition to the amendment. Defense counsel argued the amendment was untimely and prejudicial to defendant (exposing him to more time). Defense counsel also argued a Penal Code section 995 motion.
Defendant stated that Judge Hake was angered by defendant’s personally stated disqualification motion. After the court denied defense counsel’s motions under Penal Code section 995 to dismiss the transportation charge and to continue for one day, defendant personally moved to disqualify Judge Hake, stating “With all due respect, I would like to file a 170.6, sir.” The court noted that the case had already been assigned “out of master calendar” and the motion was untimely. The record does not support defendant’s complaint.
Defendant stated that Judge Hake repeatedly stated that defendant should not go to trial but take the offer because he would be found guilty and receive more time and that cases “always” turn for the worse. The record does not support defendant’s complaint. Judge Hake simply advised defendant of the benefits of accepting and the consequences of refusing the plea offer. Judge Hake never predicted the outcome of a trial by jury.
Defendant stated that Judge Hake knew what defendant had meant by his statement to officers at the time of his arrest, that “he just got into the,” and that Judge Hake refused to listen to him when he tried to explain. In ruling on the prosecutor’s motion in limine to introduce defendant’s statement that “he just got into the game,” defense counsel suggested that it was vague and not relevant. Judge Hake responded, “I think one reasonable inference could be the game of buying and selling and profiteering of contraband. Isn’t that a game? I don’t know if that’s it. I have no idea --” and that it was “something for the jury to decide.” During the discussion on the issue of defendant’s statement, defendant never interjected and never stated, as he claimed in his declaration, that he had explained the statement meant he was trying to lead a productive life. The record does not support defendant’s complaint.
Defendant stated that Judge Hake advised that his defense of simple possession did not matter because he was charged with transportation. The statutory definition of transportation does not require personal possession. (Health & Saf. Code, § 11352, subd. (a).) Had the facts unfolded at trial to suggest a lesser related instruction was required (see People v. Rogers (1971) 5 Cal.3d 129, 134, fn. 4), there is no indication that Judge Hake would have refused such an instruction.
On appeal, citing People v. Williams (1969) 269 Cal.App.2d 879 (Williams), defendant complains that Judge Hake was “actively involved in encouraging [defendant] to accept the prosecution’s offer based on what he was likely to do.”
“There is no rule in California forbidding judicial involvement in plea negotiations.” (People v. Weaver (2004) 118 Cal.App.4th 131, 148 (Weaver).) But the better practice is that a trial court should not engage in plea bargaining with the defendant; instead, the trial court decides whether to approve the terms of the agreement reached by the parties. (People v. Segura (2008) 44 Cal.4th 921, 929-932, filed August 4, 2008.) “‘[Because] [e]xperience suggests that [judicial participation in plea bargaining] risks more, in terms of unintentional coercion of defendants, than it gains in promoting understanding and voluntary pleas . . . most authorities recommend that it be kept to a minimum . . . .’ [Citation.]” (People v. Jensen (1992) 4 Cal.App.4th 978, 983, quoting Williams, supra, 269 Cal.App.2d at p. 884.)
In Williams, the judge incorrectly advised the defendant and assured the defendant that state prison was not mandatory if he entered a plea. The defendant did so but the court decided that the defendant was ineligible for probation and sentenced the defendant to state prison. Williams reversed, concluding that the defendant’s plea was involuntary in that he had not been fully informed. (269 Cal.App.2d at pp. 880-885.)
Williams is distinguishable. Here, the prosecutor made the offer of a stipulated state prison sentence of the low term of three years, doubled for the strike prior, for one of the counts. There was no bargaining. The offer by the prosecutor on the first day of trial appeared to be a take it or leave it offer and, if defendant accepted, Judge Hake had no decisionmaking with respect to granting probation or sentencing defendant to state prison. As the judge informed defendant, entering the plea meant the judge was taken out of the equation and going to trial meant the judge determined the amount of punishment if convicted. Defendant was not intimidated by Judge Hake. He insisted on proceeding to trial twice after having been advised by Judge Hake as to the benefits of accepting the offer and the consequences of rejecting the same. Defendant only accepted the offer after his motion to dismiss the transportation charge was denied.
We conclude that Judge Candee properly denied defendant’s motion to disqualify Judge Hake.
Background on Motion to Withdraw Plea
After defendant entered his plea, he informed the probation officer that he was “contemplating the withdrawal of his plea in this matter, in hopes of receiving a more fair outcome at trial.” On October 14 and 19, 2005, defendant personally prepared a motion to dismiss for vindictive prosecution and a motion to withdraw his plea. The same were forwarded to the trial court but not filed. Instead, conflict counsel was appointed for defendant to pursue the grounds, if any, for a motion to withdraw his plea.
On April 21, 2006, new counsel filed a motion to withdraw defendant’s plea, stating ineffective assistance of counsel as the only ground, as follows: “This motion is made on the grounds that [defendant’s] plea of ‘no contest’ was not voluntarily made, due to the perception on [defendant’s] part that his assigned attorney for trial, Assistant Public Defender, John Roth, was not adequately prepared to defend him at trial, and did not adequately advise him about the consequences of his plea. Furthermore, the relationship between [defendant] and Mr. Roth, had broken down so much, by the time that [defendant] accepted the plea offer, that it was tantamount to [defendant] not having any legal representation.”
At the hearing on the motion to withdraw the plea, defendant testified. He was initially represented by a different public defender. After his motion to suppress was denied on June 10, 2005, Roth visited defendant in jail almost three weeks later and explained that he was defendant’s attorney. Because Roth was new to the area, he needed to continue the trial date. Defendant denied that Roth discussed the facts of the case. The next time defendant saw Roth was in court when the case was continued but they did not talk about the case. A few weeks later and a week before the trial readiness conference, Roth visited defendant in jail and they talked about the case. Defendant claimed he gave Roth “a bunch of case laws” and “asked him if he can look those up” and Roth planned to use it “because it was pretty good case law.” Defendant got the impression Roth did not know the facts of the case. When Roth did not visit defendant in a week as promised, defendant called the public defender’s office. Unbeknownst to defendant, he was routed to Roth’s supervisor’s voice mail (rather than Roth’s voice mail) and left a message, complaining about the lack of visits and preparation. The next day, Roth visited defendant. Defendant claimed that Roth was very angry, seemed stressed from his case load and never calmed down enough to discuss the case. While waiting in a holding tank before the next court appearance, Roth conveyed to defendant that the prosecutor had offered 32 months for simple possession and defendant claimed he told Roth that he accepted the offer. “[F]our minutes later,” when defendant went to the court appearance, Roth was not present, another public defender was, and the 32 month deal was “off the table.” A few days later, Roth visited defendant in jail and the offer was four years, again for simple possession, and he only had a few days to decide. In discussing the offer, defendant claimed Roth explained that an investigator had visited the restaurant and that the witness was not credible. Defendant stated that Roth still did not know anything about the case and Roth explained he had not had time. At the next court appearance, Roth’s supervisor appeared instead because Roth had complained about defendant to her. Defendant understood that he had a few more days to think about the four year deal. Defendant filed a motion to substitute another attorney for Roth because he claimed he was being coerced into accepting the offer. Roth had explained there was “no way” to win the case unless defendant testified that “the police officer task force planted the drugs on [him].” Defendant confirmed that Roth wanted defendant to commit perjury. Defendant believed the attorney-client relationship was “broken down after that.” Prior to the court appearance where the prosecutor amended the information to add the charge of transportation, defendant claimed he had never spoken to Roth about it. Defendant denied that Roth ever explained the elements of the new charge and only stated that the new offense carried the same punishment as the possession for sales offense. Roth calculated that defendant could receive 11 years 4 months for the two offenses if convicted on both. Roth encouraged defendant to accept the plea offer in view of the new charge. Defendant did not know he could have filed another motion to substitute counsel.
On cross-examination, defendant admitted prior convictions for robbery (two counts), receiving stolen property and possession of a controlled substance. Defendant admitted that the first time he went to court the prosecutor offered six years. He insisted he was later offered 32 months. Defendant conceded that the police report covering defendant’s offenses covered two pages. Defendant admitted that he had been found with more than 20 pieces of rock cocaine, packaging material and a cell phone. Defendant admitted that he had personally filed a motion to dismiss for vindictive prosecution but did not recall stating in the document that he never wanted to accept a 32 month deal. He did recall accusing Roth, the former prosecutor Gina Nargie and the court of misconduct. Defendant confirmed that Roth had done some investigation of the case, having sent out an investigator to the restaurant to talk to a witness, not mentioned in the police report, as well as defendant’s employer who defendant had informed Roth about. At the entry of plea hearing, defendant recalled being asked whether he understood the nature of the crime of transportation and what was required to prove the offense. He denied that he had answered that he did understand and insisted that he did not understand at the time. The court took judicial notice of the entry of plea transcript reflecting that defendant answered that he did understand. Defendant claimed he had been coerced into entering the plea but admitted that Roth had never threatened him. Defendant claimed that he had been coerced by the prosecutor who “slamm[ed] papers” and told him through Roth that “this is the last offer” and he was “not going to get anything else.” Defendant claimed that the court had coerced him as well, “[u]nder different circumstances,” but had never spoken to him outside the presence of Roth. Defendant stated that he was 38 years old and had had four different criminal cases against him.
On redirect, defendant stated he had no confidence in Roth and believed that if he lost at trial, he would get more than six years in prison. Defendant claimed that he felt like he had to answer affirmatively to the question about the nature of the charge of transportation in order for the plea to go through, stating, “I even told John Roth that because I didn’t understand the form there. It takes me a while to -- I’m nearsighted so I don’t have any glasses. They broke them when I came in so I couldn’t read the form, and I was told to, you know, don’t have a lot of time to be off in there.” Defendant stated that the last time he had been convicted was in 1993 and got out of prison in 1996 and had had no convictions since that time.
The prosecutor called Roth to testify. Roth had been an attorney practicing the defense side in criminal law since 1976 and before that, served as an interviewer or investigator for the San Bernardino County public defender’s office for three years. He had personally handled in excess of 10,000 cases which included, “conservatively thirty to forty” jury trials. He explained the steps he took to prepare for trial and had done so for defendant. He spoke with defendant about the facts of the case, visited him in jail on more than one occasion but did not recall the number but less than 10, and discussed potential defenses, police reports, and defendant’s interest in trial or settlement. Roth asked defendant questions to determine whether the officers planted the drugs on defendant but never told defendant to commit perjury and claim that the officers had done so. Roth discussed the offers made by the prosecutor. Prior to the preliminary hearing, the prosecutor offered six years, that is, the midterm doubled for the strike prior. Referring to a copy of an e-mail message to the prosecutor, he had asked for the low term on simple possession, doubled for the strike prior, for a total of 32 months. The prosecutor countered with an offer of four years, the midterm of two years for simple possession doubled for the strike prior. Roth recalled that defendant did not want four years and preferred to go to trial. Roth did not remember the prosecutor ever offering 32 months. Roth recalled discussing with defendant the elements of the offenses of possession of cocaine base for sale, and the added charge of transportation and what the prosecution had to prove. Roth also discussed the defense of simple possession. Roth never recalled threatening defendant and never told defendant that he had to plead guilty. Roth did not recall the prosecutor or the court threatening defendant either. Roth recalled talking to defendant during the entry of plea but did not recall whether defendant had a question and Roth may have just explained something to defendant. Roth claimed that there were times when defendant was “fairly angry and confrontive” and “at those times communication might have been less than desirable.” Although concerned “maybe momentarily,” Roth always concluded that there was no issue that interfered with his representation of defendant. Roth was prepared to try the case when it was sent to Judge Hake for trial.
On cross-examination, Roth stated that he did not recall any discussions prior to court when the charge of transportation was added. Roth recalled discussing Proposition 36 with defendant but not with respect to the transportation charge. Nor did Roth recall anyone else discussing Proposition 36 eligibility with the new charge. Roth’s planned theory at trial was personal use. Roth stated that he had had sufficient time to discuss the charges and the offer and answer defendant’s questions. Roth denied telling defendant that he could not win nor that he could. Instead, Roth believed that he advised that it was an “uphill battle” and “he would most likely not prevail.” Based on habit and custom, Roth was “fairly certain” that he advised defendant that Roth did not believe defendant was going to win and in that case “he would probably come out worse.”
During a discussion between new counsel and the court, the prosecutor interjected that “the decision as to whether the transportation is for purposes of personal use or sales is not a jury determination” but rather “a determination made by the Court at the time of sentencing.” New counsel disputed the prosecutor’s statement.
Judge Hake later cited People v. Barasa (2002) 103 Cal.App.4th 287, 290-291, 296 [a defendant convicted of transportation of a controlled substance in seeking probation under Proposition 36 has the burden of showing that the drugs were transported for personal use]), and People v. Glasper (2003) 113 Cal.App.4th 1104, 1112-1116 [the determination whether a defendant transported drugs for personal use was for the judge at sentencing not the jury, and that Proposition 36 did not create a new crime of transportation for personal use]).
Roth admitted that defendant did not have “much faith” in Roth when they had reached trial. Roth questioned whether he could effectively represent defendant given defendant’s “hostile attitude” but concluded he could do so. Roth may have discussed the offer with defendant on October 3 but did not recall visiting defendant in jail or in the holding tank before court.
Defendant testified in rebuttal. He claimed that Roth was surprised or shocked as was he when the transportation charge was added. Defendant claimed that Roth said to review the charge. After defendant did so, Roth explained it to him and they discussed it. Defendant did not know whether he was eligible for Proposition 36 with the new charge and Roth did not discuss it. Roth explained that with the new charge, it was “virtually impossible” to win. The prosecutor told Roth that defendant needed to accept the deal and it was the last offer. Defendant told Roth he did not want the deal. Defendant did not recall talking to Roth between September 29 and October 3 but saw him in court on October 3. Defendant confirmed that the court advised as to the maximum he faced in view of the two charges. If convicted on both charges, defendant did not know whether he was eligible for Proposition 36.
On cross-examination, defendant confirmed that he was given an opportunity to discuss the case with Roth after the amended information was filed. When he entered his plea, defendant confirmed that the court asked whether he had any questions about the plea and whether he was entering his plea after fully discussing the case with Roth.
New counsel argued that defendant was not properly advised on the transportation charge and entered his plea without the knowledge of the consequences, defenses and opportunity for the drug treatment program. “In other words, [defendant] would not have entered his plea if he had known that he had an opportunity to participate in the Proposition 36 program on the new charge.” New counsel also argued that the breakdown in the relationship between defendant and Roth led defendant to believe that he had no attorney when he entered his plea.
The prosecutor argued that defendant was not credible and his self-serving statements should be rejected. The prosecutor argued that defendant’s dissatisfaction with counsel, his perceptions and feelings, were issues for the hearing on his Marsden motion. With respect to Proposition 36 treatment, Roth did not recall discussing the issue but answered defendant’s questions. The prosecutor concluded that defendant was suffering from “buyer’s remorse.”
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
The court denied the motion to withdraw defendant’s plea, finding that defendant had failed to demonstrate that Roth’s performance was deficient when defendant entered his plea. The court concluded that defendant “knew exactly what he was doing and knew exactly the consequences and knew exactly the alternatives.”
Analysis
Penal Code section 1018 provides that a court may permit a defendant to withdraw his guilty plea before judgment has been entered upon a showing of good cause based on clear and convincing evidence. Good cause is “[m]istake, ignorance or any other factor overcoming the exercise of free judgment” such as “‘inadvertence, fraud or duress.’” (People v. Cruz (1974) 12 Cal.3d 562, 566; Weaver, supra, 118 Cal.App.4th at pp. 145-146.) “However, ‘[a] plea may not be withdrawn simply because the defendant has changed his mind.’ [Citation.]” (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) A trial court’s determination whether to permit a defendant to withdraw a plea is discretionary and its ruling will not be disturbed on appeal absent a showing of abuse of discretion. (People v. Mickens (1995) 38 Cal.App.4th 1557, 1561.) An abuse of discretion occurs when the court “exercises discretion in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice.” (People v. Shaw (1998) 64 Cal.App.4th 492, 496.) “[A] reviewing court must adopt the trial court's factual findings if substantial evidence supports them.” (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) “Where two conflicting inferences may be drawn from the evidence, it is the reviewing court’s duty to adopt the one supporting the challenged order.” (People v. Hunt (1985) 174 Cal.App.3d 95, 104.)
Defendant contends the trial court erroneously denied his motion to withdraw his plea. He argues he was unable to read the entry of plea form; he was coerced into entering the plea by the trial judge; the added charge of transportation at the beginning of trial influenced him to enter his plea; he had had inadequate time to receive advice from Roth; Roth gave erroneous advice concerning the consequences of the plea; and there had been a complete breakdown of the attorney-client relationship. Defendant has failed to demonstrate that the trial court abused its discretion in denying his motion.
Defendant was not a novice to the criminal process. He had convictions involving moral turpitude, robbery and receiving stolen property. He knew about the Marsden process and had already attempted to substitute another attorney for Roth. His claim he was unaware that he could file another Marsden motion is belied by his background. With respect to the transportation charge and the eligibility for Proposition 36 treatment, defendant testified that he did not recall whether the issue was discussed. Defendant claimed the prosecutor offered 32 months and that defendant told Roth he accepted.
Roth had been an attorney in California for about 30 years, practicing criminal law on the defense side. Roth testified as to his custom and practice in handling criminal cases, having handled about 10,000 cases, and that he had followed the same in defendant’s case. Roth was ready for trial in defendant’s case. Roth had visited defendant in jail no more than 10 times, discussed the charges, elements of the offenses, and what the prosecution was required to prove. Roth discussed possible defenses. Roth investigated the case. An investigator talked to witnesses, including one identified by defendant. The case was not complicated.
Roth discussed the offers of settlement. Initially, the prosecutor offered six years, that is, the low term for possession for sale doubled. Roth queried whether the prosecutor would consider the low term of 16 months for simple possession, doubled, to 32 months. The prosecutor offered instead the midterm of two years for simple possession, doubled, for a total of four years. Roth stated that defendant rejected the offer of four years.
Roth recalled discussing Proposition 36. After the transportation charge was added, Roth did not recall anyone discussing defendant’s eligibility for drug treatment.
Roth testified that defendant had a “hostile attitude,” that there were times when defendant was “fairly angry and confrontive” and “at those times communication might have been less than desirable.” Roth always concluded that he could effectively represent defendant.
The trial court concluded that defendant knew the consequences, alternatives and what he was doing. Substantial evidence supports the trial court’s conclusions. As the prosecutor argued, defendant was simply suffering from “buyer’s remorse.” The trial court did not abuse its discretion in denying defendant’s motion to withdraw his plea.
DISPOSITION
The judgment is affirmed.
We concur: ROBIE Acting P. J., CANTIL-SAKAUYE , J.
“I take it upon myself to make sure that I know that the defendant understands what the offer is. I’ll tell you why I do that. Because right now what happens in this trial insofar as if you’re convicted or you plead guilty -- I should say if you plead guilty or no contest right now, primarily you, along with your lawyer and the prosecutor, pretty much control your destiny. You actually are in control of it, sir, because you will have to make the ultimate decision and choice, but once I get a panel of jurors in here and once they are sworn, then I’m in charge. My policy is if both sides can agree to a disposition, then I won’t challenge that disposition. I will accept it because your lawyer is an advocate to only your side. The district attorney is an advocate on the other side, so I feel that the best way to achieve justice or justice is achieved is when both sides on opposite sides can -- opposite sides can agree. I trust the competency of both lawyers here. Both the prosecutor and defense attorney, and so if you -- the three of you, because you’re the [principal] person, if the three of you can agree to a disposition, I will accept it.
“Now, I can always reject it later, but I have never rejected a disposition that I agreed to up front. The only way -- I’ll tell you, this may sound a little strange or funny -- the only time I would reject such a disposition is if I got a probation report and found out that you were a mass murderer or something, you know. You’re not that. And so now is the time for you to make your decision to control your future.
“I don’t know anything about this case. I don’t want to know anything about this case. The only thing I have in front of me, I have the charging document, which is the information, and I have a docket sheet that just has everyone’s name on it. That’s it. And case number. But once that jury is sworn, then, quite frankly, sir, you belong to me. I mean that, because when I hear the case and I hear the evidence and if the jury decides you’re guilty, then you’ll understand that. It’s my decision and the future decisions that will affect your following period of time in your life because I will decide how much time you are going to get.
“I’ll listen to the prosecutor. I’ll listen to your lawyer, but nevertheless, it will be my decision, and I’ll tell you this: When I get the probation report, if you’re convicted, in 75 to 85 percent of all cases, and I’ve been doing this, sir, for 39 years, in about, like I said, 85 cases, maybe 85 percent, the probation report where there is a conviction on the charges, invariably suggests, recommends more time than what you, the typical defendant, could get if they take the offer of the prosecutor.
“I can tell you why that is. It’s because the probation department simply sees the case. They know what the charges were. They go by various formulas and they make the recommendations. They don’t know how weak the prosecution’s case may be. They don’t know how weak the defense’s case may be. So they just come up with sort of a mathematical formula based on their experience as well and they recommend that.
“Now, I’ll tell you this: My experience is that in those instances the Court typically, probably in about 85 to 95 percent of the cases, follows that recommendation, but the Court has the recommendation of the probation department. That’s their job to recommend a proper sentence. And the Court has the evidence because I’ll be sitting here listening to all the evidence, but I won’t make the decision. The jury will, so that’s why I say, sir, once we get this jury sworn, you belong to me. You really do.
“I’ll listen to the best picture your lawyer can make for you, and I am sure he will, and I’ll listen to the worst pitch that the district attorney can make, and I’m sure they will. But, quite frankly, my mind is going to be pretty much made up. It’s open, but it’s pretty much made up, that’s because I’ve heard all the evidence. I have all your records. I know everything about you that I need to know. So I just want you to understand that because I don’t like -- I learned a long time ago when I first became a judge, when there is an offer and it’s not accepted and you go to trial -- and this happens so frequently, defendant is convicted, then I’m sitting here going to sentence the defendant, and all I hear is a lot of loud tear-jerking pleas. Lawyers try to -- they try to get the Judge to feel sorry. DAs try to get the Judge to be angry, and I’m past all that. I’m not moved by emotion one way or the other. I’m just kind of like an iceberg, but there is no heating. I’m just here. I consider the facts, and unless there is something very unusual, I’m not moved.
“Now in terms of low term and upper term, that’s an interesting phenomena. Yes, I give defendant’s low term and upper term after a trial, but the percentages there aren’t really good. They are not good for the prosecution or for the defense. I would say that maybe in about 6 to 7 percent of the cases I might -- I would give a low term. And maybe about 5 percent, slight a bit fewer, I will give an upper term. But the reason those percentages are low is because in California there’s a law which states there is a presumptive term. That presumptive term is midterm.
“Now, in order for me to go lower or higher, I’ve got to give reasons on the record why I’m doing it, and quite frankly, there aren’t a whole lot of reasons to give low term or upper term, and I’ll tell you why. Because most defendants who qualify for lower or upper -- well, lower, they take the offer anyway so they don’t hardly go to trial. And defendants who qualify for upper, they are the ones who, no matter what it is, they don’t like the result. And their background is such that it deserves upper term. Not because they go to trial, but because they have such a history that simply can’t be overlooked.
“It’s kind of in a way like two strikes and three strikes. The law requires that a sentence be doubled on a two-strike and for a three strike [] [i]t’s basically 25 years to life. Oh, sure, sure the Court can exercise discretion and strike a strike. Have I struck strikes? I think two times. And why? Because in order to strike a strike the Judge must put on the record those circumstances which are in the interest of justice both to the defense and to the People.
“All right. It’s got to be in the interest of justice to both sides. Well, you can imagine there are very few circumstances that would be able to be shown to be in the interest of justice to both sides. It’s an adversary system so, you know, I know it’s tough when you’re sitting there. I know because I’ve talked to so many other individuals who sat where you’re sitting. But the bottom line is, the one thing I guarantee you is a fair trial and consideration of all the evidence. And as I sit here now, I can guarantee you that if you, your lawyer and the prosecutor agree, I will go along with it. And I will not change my mind and pull the plea back and make you go to trial.”
The court noted: the prosecutor’s motion to amend to add transportation to the already charged possession for sale with possible consecutive sentencing exposed defendant to 11 years 4 months; the offer was the low term of three years doubled; and the prosecutor had dismissed another strike so defendant was no longer facing a life sentence. The prosecutor interrupted and stated that defendant could plea to either the possession for sale or the transportation. The court explained that the sentence was the same. The court stated that motions in limine would be considered with the time left unless defendant accepted the offer. In asking defendant whether he wished time to discuss the offer with his counsel, the court stated: “So you can either decide your fate or you can leave it in the hands of the god and the guy in the black robe. If I were you, I would trust the hands of gods before you trust me. That’s just my opinion speaking from the inside out.”