Opinion
C086143
06-12-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHN MICHAEL CARY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF17954)
Appointed counsel for defendant John Michael Cary has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant filed a supplemental brief asserting he received ineffective assistance of counsel and requesting to withdraw his plea. We find defendant's contentions are without merit. After reviewing the record, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
As recited by the prosecutor during the plea hearing, the facts are as follows: On May 27, 2017, defendant's ex-girlfriend, R.K., drove to a residence to pick up someone who needed a ride. Defendant, who was nearby, had a baseball bat and began striking R.K.'s vehicle on the driver's side and windshield. When R.K. got out of the vehicle, defendant hit her in the knee with the baseball bat, causing bruising and swelling. Defendant acknowledged the altercation to police but said, "it was a two on one" situation. During the plea hearing, defendant agreed to these facts as "providing the basis for [his] no contest plea in [the] matter," and defense counsel joined in agreement.
Defendant was charged with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1), willfully inflicting corporal injury resulting in a traumatic condition on a domestic partner (§ 273.5, subd. (a); count 2), and felony vandalism (§ 594, subd. (b)(1); count 3). With respect to count 2, it was further alleged defendant personally used a dangerous and deadly weapon. (§ 12022, subd. (b)(1).)
Undesignated statutory references are to the Penal Code. --------
On June 7, 2017, defendant pleaded no contest to count 1. (§ 245, subd. (a)(1).) In exchange, the parties agreed that the remaining allegations would be dismissed, and that, as to count 3 (§ 594, subd. (b)(1)), that count would be dismissed pursuant to People v. Harvey (1979) 25 Cal.3d 754, 758 (Harvey). Defendant would be released on his own recognizance (OR) pursuant to a Cruz waiver, with the agreement of a sentencing lid of two years in prison if he complied with the terms of his release. (People v. Cruz (1998) 44 Cal.3d 1247, 1250 (Cruz).) If defendant failed to comply with those terms, he would be sentenced to three years. During the plea hearing, defendant stated he understood his constitutional rights, had not recently consumed controlled substances or alcohol, and was not currently taking medication.
On October 30, 2017, defendant admitted to violating the terms of his OR release and Cruz waiver.
On November 1, 2017, defendant moved to withdraw his plea, arguing he did not understand the consequences of his Cruz waiver. On November 20, 2017, the trial court denied defendant's motion to withdraw his plea, reasoning defendant was informed of the details of his Cruz waiver, indicated he understood them, and agreed to them. That same day, the court sentenced defendant to three years in state prison, per the parties' agreement. The court also imposed a $900 restitution fine (§ 1202.4, subd. (b)) and a corresponding $900 parole revocation fine, suspended unless parole is revoked (§ 1202.45). In addition, the trial court imposed a $40 court security fee (§ 1465.8) and a $30 conviction assessment fee (Gov. Code, § 70373). The court awarded defendant 85 days of custody credit and dismissed the remaining charges.
Defendant filed a timely notice of appeal and did not obtain a certificate of probable cause.
DISCUSSION
Appointed counsel filed an opening brief that sets forth the facts of the case and asks us to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Counsel advised defendant of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief arguing he received ineffective assistance of counsel because he was unaware that his attorney waived time for him. To establish ineffective assistance of counsel, a defendant must show counsel's performance was "deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms." (People v. Mai (2013) 57 Cal.4th 986, 1009.) A defendant must also show "resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (Ibid.)
Despite defendant's contentions, the trial court during the plea hearing asked defendant if he "[w]aive[d] time for sentencing?" Defendant responded, "Yes, sir," and defense counsel joined in the waiver. Given defendant's response, he has failed to show he received ineffective assistance of counsel.
Defendant also contends he believed he was pleading no contest to count 3. He further disputes the facts, argues the police failed to investigate four witnesses who said he did not strike the witness, and claims he was only guilty of count 3, not count 1. To the extent defendant is contending the trial court erred in denying his motion to withdraw his plea, his claim is not recognizable on appeal because he is challenging the validity of his plea and failed to obtain a certificate of probable cause. (People v. Ribero (1971) 4 Cal.3d 55, 63-64.)
Regardless, his argument has no merit. We review a trial court's refusal to allow a defendant to withdraw his plea for abuse of discretion. (People v. Wharton (1991) 53 Cal.3d 522, 585.) A defendant wishing to withdraw his plea must show good cause by "clear and convincing evidence." (Ibid.; see also § 1018.) "Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.]" (People v. Cruz (1974) 12 Cal.3d 562, 566.) " 'Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.' [Citation.]" (People v. Weaver (2004) 118 Cal.App.4th 131, 146.)
Substantial evidence supports the trial court's factual findings regarding defendant's ability to understand the proceedings and knowingly and voluntarily enter his plea. (See People v. Fairbank (1997) 16 Cal.4th 1223, 1254 [a reviewing court must adopt the trial court's express or implied findings if substantial evidence supports them].) The record indicates defendant understood which charge he was pleading to. During the plea hearing, the trial court asked defendant how he pled to "a charge that on May 27, 2017, you did commit a felony, assault with a deadly weapon, to wit: a baseball bat, victim's initials R.K.?" Defendant responded, "No contest." Defendant also agreed to the trial court's explanation that, pursuant to the Harvey waiver, the trial court would dismiss the vandalism charge but still consider it at sentencing for restitution purposes.
In addition, defendant agreed to the facts as stated by the prosecutor, including that he struck the victim's knee and vehicle with his baseball bat. Defendant also indicated he understood and waived his right to a jury trial, to confront and cross-examine witnesses, and to order witnesses to appear on his behalf in court. Given defendant's agreement to the facts and his knowing and voluntary waiver of his Sixth Amendment rights, we find no abuse of discretion.
We have undertaken an examination of the entire record and find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J. We concur: HOCH, J. RENNER, J.