Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Before Vartabedian, Acting P.J., Cornell, J. and Dawson, J.
APPEAL from a judgment of the Superior Court of Kern CountySuper. Ct. No. MF006995A. John Oglesby, Judge.
James H. Dippery, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Gibson and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Soraya Alma Cassis appeals from her misdemeanor conviction for violation of Penal Code section 666, contending the trial court erred in denying her motion to withdraw her guilty plea. We find the court did not abuse its discretion and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On July 18, 2005, defendant walked out of the Albertsons store in Rosamond carrying a Coleman-brand, spotlight-type flashlight. A store employee, Gustavo Rauda, observed defendant remove the flashlight from its packaging and then conceal the item as she left the store without making payment. Approximately one-half mile from the store, Kern County Deputy Sheriff Victor Keesey stopped defendant driving her vehicle. As Keesey walked up to defendant, she immediately commented, “I’ll go back and pay for it”; Keesey observed a new flashlight in the vehicle.
An information filed on October 25, 2005, charged defendant with felony violation of Penal Code section 666 for commission of a petty theft with five prior theft convictions (count one) and misdemeanor violation of Penal Code section 488, petty theft (count two).
On November 3, 2005, defendant’s attorney at the time, Alan Rich, and defense investigator Patti Bulkeley were informed by Rauda that the flashlight in question had been returned by the sheriff’s deputy to the store office and, based on the belief that it would not be needed for court proceedings, the store manager kept it in his office. There, Rich and Bulkeley observed the flashlight to be in used condition.
On March 9, 2006, defendant entered a bargained plea of guilty to count one as a misdemeanor and count two was dismissed. She was placed on probation for three years, with one of the conditions being that she serve 180 days in jail; the court referred her to the electronic monitoring program as an alternative to actual custody, should she qualify for the program.
Defendant moved on June 23, 2006, to withdraw her guilty plea. On September 14, 2006, the motion was denied.
DISCUSSION
In her motion before the trial court, defendant, represented by a new attorney, claimed her decision to plead guilty was materially affected by two elements: not having available to her a defense investigation report concerning her defense team’s above-described November 3 visit to the Albertsons store, and her belief that she was guaranteed she would be placed on electronic monitoring rather than have to do jail time. She now asserts that the trial court abused its discretion when it denied her motion to withdraw the plea.
Under Penal Code section 1018, the trial court may permit a defendant to withdraw the plea of guilty upon a showing of good cause by “clear and convincing evidence.” (People v. Cruz (1974) 12 Cal.3d 562, 566.) Where there is contradictory evidence, the trial court is entitled to resolve the factual conflict against the moving defendant. (People v. Hunt (1985) 174 Cal.App.3d 95, 104.) We review the denial of such a motion for abuse of discretion; absent a clear abuse of discretion, the decision of the trial judge is final. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
Concerning defendant’s claim that her defense attorney’s failure to give her a copy of the referenced defense investigation report rendered her plea uninformed, the trial court made a factual finding that Attorney Rich timely divulged to defendant this information he had developed. In addition to considering at the motion hearing Rich’s testimony that he so advised defendant, the court noted it was present during plea settlement negotiations with the prosecution when Rich brought up the evidence of the condition of the flashlight as tending to support the defense that defendant may have brought the flashlight into the store.
Nonetheless, defendant claims on appeal her position is supported by People v. Ramirez (2006) 141 Cal.App.4th 1501. As the People point out, Ramirez is clearly distinguishable. In Ramirez, it was found that the prosecutor had withheld material information from the defense, causing the appellate court to find the trial court abused its discretion in not allowing the withdrawal of the guilty plea entered without knowledge by anyone on the defense side of this withheld information. (Id. at pp. 1506-1507.) Here, defense counsel obviously was aware of the report he helped develop. Additionally, the trial court here found, contrary to defendant’s claim of lack of information, that Attorney Rich did in fact tell her about the content of his own office’s investigative report.
Concerning defendant’s claim that she pleaded guilty based on an assurance she would be placed on home electronic monitoring instead of in jail, the court again found defendant’s testimony lacked credibility. In its ruling, the court noted that defendant had stated in a declaration that she could not afford the costs she would have to pay for electronic monitoring. Later at the hearing of the motion she testified, inconsistent with her declaration, that she was denied admission to the program solely because of a purportedly disqualifying prior conviction. The court found that defendant’s own testimony established that she was advised she was facing time in jail and that she was aware of this fact. In the court’s judgment, defendant’s testimony that she did not voluntarily accept that fact, thinking she was guaranteed electronic monitoring instead of jail time, lacked credibility and was inconsistent with the court record.
Accordingly, because the trial court acted on a sufficient basis in making its determination of credibility, we cannot say it abused its discretion in denying the motion to withdraw the plea.
DISPOSITION
The judgment is affirmed.