Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. VCR176744
Richman, J.
Defendant Marquis Matthew Davis entered a plea of guilty to a charge of attempted murder involving the personal use of a firearm (Pen. Code, §§ 187, 664, 12022.53, subd. (c)). Seven months later, he moved for leave to withdraw his plea on the ground that the victim had recanted his identification of defendant as the shooter. The motion was denied, following which defendant was sentenced to state prison for a term of 25 years. On this timely appeal, he presents only one real contention, namely, whether his motion was erroneously denied. We conclude that the trial court did not abuse its discretion in denying his motion on the ground that defendant had not shown good cause for withdrawal of his plea. Defendant also argues, and the Attorney General concedes, that defendant is entitled to one additional day of custody credit. We modify the judgment accordingly, and affirm.
Statutory references are to the Penal Code otherwise indicated.
BACKGROUND
Sean Wydermyer testified at the preliminary examination that on December 13, 2004, he went to a house in Vallejo after agreeing by cell phone to sell cocaine to defendant. Inside the house, defendant shot Wydermyer six times. Believing he was about to die, Wydermyer identified defendant to police as the shooter. Defendant was charged by information with the willful, deliberate, and premeditated attempted murder of Wydermyer and that the offense involved the personal use of a firearm.
At various times, this individual gave his name as “Widermyer,” “Wydermeyer, and “Wydermyer.” We adopt his most recent spelling, the one he gave at the hearing on defendant’s motion to withdraw his guilty plea.
Things began to heat up in October 2006. Defendant filed an in limine motion for a Kelly-Frye hearing “into the scientific validity of anticipated expert testimony with respect to the technical ability of cellular telephone companies to pinpoint the location of cell phones at times that calls are placed to or from them.” Defendant argued that discrediting the anticipated testimony would bolster his alibi defense and impeach Wydermyer’s identification: “If Davis was in fact not in Vallejo, he could not have done the shooting. There are a number of reasons to distrust the victim’s identification of Davis as the shooter: he is a drug dealer, and seems to have amassed plenty of enemies other than Davis who might have been the real assailants.” The prosecution was also busy with its own motion, this one to amend the information to add an additional count of assault with a firearm (§ 245, subd. (a)(2)), with the same personal use enhancement.
People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 F. 1013.
On November 2, the court conducted a hearing at which it heard extensive argument on the motions and other pretrial matters. The court denied defendant’s motion, but it left open the possibility of a trial hearing on the cell phone issue pursuant to Evidence Code section 402. The prosecution’s motion to amend the information was in effect continued to November 6.
November 6, defendant’s trial date, was a busy day for all concerned. The proceedings commenced with the court denying defendant’s motion for a continuance. Concerning the prosecution’s request to amend the information, defense counsel stated “I’m essentially estopped as a competent lawyer from opposing, because it does give the jury, in a case where I think we all agree the evidence is substantial against my client, the option of finding a lesser offense . . . .” However, counsel was uneasy at “a compromised verdict possibility.”
The prosecutor responded: “If he’s objecting, I’ll just withdraw this thing. We’ll just go on the attempted murder. I feel really confident about this case. I’ll withdraw it.” The court observed, “It’s been withdrawn. Very good.” But moments later, defense counsel told the court “I do want it. I do want it.” The court then ordered the amended information “filed,” and defendant entered pleas of not guilty to both counts and all enhancements.
Selection of a jury then began. Before selection was completed, defendant decided to accept a plea bargain offered by the prosecution, but only up to the point a jury was sworn. The deal was that defendant would plead guilty to the attempted murder charge—without the willful, deliberate, and premeditated clause—and be sentenced to the low term of five years. He would admit the enhancement to that count, and be sentenced to an additional 20 years.
Defendant executed a change of plea form that included the waivers and admonitions required by Boykin v. Alabama (1969) 395 U.S. 238, In re Tahl (1969) 1 Cal.3d 122, and In re Yurko (1974) 10 Cal.3d 857. The court accepted defendant’s change of plea, noting, “I have reviewed the waiver form. There does appear to be a knowing, intelligent and voluntary waiver of the various statutory and constitutional rights.” Counsel for both sides agreed that there was “a factual basis [for the plea] on the preliminary hearing transcript.” The assault count and remaining enhancement allegations were dismissed.
Sentencing was initially set for November 30, 2006, but was repeatedly continued, until May 24, 2007.
On May 14, defendant filed a motion requesting leave to withdraw his guilty plea on the ground that Wydermyer had recanted his identification of defendant as his assailant. The motion was supported with a declaration by Wydermyer in which he stated: “Several months ago, I learned that Davis had pleaded guilty to the charge of having shot me. . . . I have determined that I may have been mistaken in saying, and later in testifying, that Davis shot me. I am now uncertain of the truth of my statements in this regard. I myself have a doubt as to whether Davis shot me. I would be prepared to testify to this doubt to any Court or any jury should Davis be permitted to withdraw his guilty plea and go to trial.”
The prosecution filed opposition to the motion, arguing that Wydermyer’s change of mind did not constitute good cause for allowing defendant to withdraw his plea.
On May 24, defendant’s motion was the subject of an extensive hearing. After considerable discussion about the development of the case and the timing and circumstances of defense counsel learning of Wydermyer’s change of mind, Wydermyer took the stand. He was initially examined briefly by the court and then by defense counsel about his declaration. Wydermyer testified that it was he who approached defendant’s counsel. He was not threatened to change his mind.
The court interjected to ask: “I’m looking at your declaration. Among other things, you say that ‘I have determined that I may have been mistaken in saying and later testifying that Mr. Davis shot me.’ [¶] . . . [¶] You don’t know if you were mistaken, but you may have been mistaken; is that it?” Wydermyer replied, “Yeah.” When defense counsel resumed questioning. Wydermyer conceded that defendant was in the house at the time of the shooting, but Wydermyer was not sure he was the actual shooter.
On cross-examination by the prosecutor, Wydermyer testified that he had previously made three positive identifications of defendant as the man who shot him. The gist of his changed position was that he knew there were two people in the house—defendant and another man—at the time he was shot. Wydermyer was certain that the other man did not shoot him. But Wydermyer was now allowing for the possibility of a third man, who might have been the shooter:
“Q. Looking at your transcript of what happened at the prelim, do you remember testifying that the person who shot you just before that maybe just walked into a bathroom?
“A. Yeah.
“Q. Okay. And the person who walked into the bathroom just before you got shot was the defendant, right, Mr. Davis, right?
“A. Yes.
“Q. So you know that and you are sure of that, right?
“A. Yes.
“Q. Did you ever see anybody in the house go into that bathroom?
“A. No, but I can’t say there wasn’t no one already in there. I didn’t thoroughly search anything.” As Wydermyer put it, “I can’t say it was him or not. I really didn’t look at his face. I just went by who I seen went in the bathroom.” But he did not actually see a third person.
On redirect, Wydermyer testified that he was not repudiating what he previously said, but “I have a terrible memory . . . after the incident,” and what he really recalls is that “I was just looking at a weapon. That’s all I was looking at.”
After defense counsel stated “I don’t want to call another witness,” the court heard argument on the motion. The court then ruled as follows:
“Well, Penal Code Section [1018] authorizes motions to withdraw guilty pleas, provides basically that a trial court may grant such a motion for a good cause shown, and as a general rule, a plea of guilty may be withdrawn for mistake, ignorance or inadvertence or any other factor overreaching the defendant’s free and clear judgment, meaning at the time he entered the plea. The defendant has the burden of proving grounds for withdrawal of the guilty plea by clear and convincing evidence . . . .
“I think the general rule . . . is that cases involving a victim’s recantation, our appellate courts have cautioned repeatedly that a witness’s offer to retract sworn testimony should be viewed with suspicion and given little credence.
“And I listened to this gentleman, and I think that Mr. Wydermyer basically has a little bit of buyer’s remorse. After all, what he says is the same in the declaration that [defense counsel] prepared and he signed, he basically said the same thing here ten minutes ago, that is, that he may have been mistaken in saying and later testifying that the defendant, Mr. Davis, shot me.
“I don’t think you’ve carried your burden of proof. I think this defendant got what he asked for. He got the benefit of his bargain. He got a case, which could have resulted in over 40 years to life, reduced to a case where he was going to receive 25 years.
“So your motion to withdraw his previously entered plea is denied.”
The court then arraigned defendant for imposition of sentence, and imposed an aggregate term of 25 years in state prison in accordance with the parties’ plea agreement.
Defendant filed a timely notice of appeal and obtained a certificate of probable cause.
DISCUSSION
Section 1018 specifies 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.” Under this statute, “mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of the plea, but good cause must be shown by clear and convincing evidence. [Citations.] The decision to grant the motion to withdraw the plea lies within the sound discretion of the trial court. [Citation.]” (People v. Castenada (1995) 37 Cal.App.4th 1612, 1617.)
Two additional factors are relevant. “ ‘When a defendant is represented by counsel, 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. [Citations.] On appeal, the trial court’s decision will be upheld unless there is a clear showing of abuse of discretion. [Citations.]’ [Citation.] ‘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.)
So, in trying to get the denial of his motion reversed, defendant faces formidable obstacles. Throughout these proceedings defendant was represented by an experienced attorney who demonstrated skill, resourcefulness, and the proper zeal for the defense responsibility he undertook. Defendant’s motion to withdraw his guilty plea not only had to be supported by good cause, but also by clear and convincing evidence of that good cause. Finally, the trial court’s decision may be overturned only if defendant satisfies the most stringent test for reversal.
Defendant contends that he can meet this standard. He argues that “a serious injustice will occur if this Court affirms the denial of appellant’s motion to withdraw his plea. Without question, Widermyer’s recantation bears directly on the most fundamental issue—appellant’s innocence . . . . [I]n light of Widermyer’s recantation, affirmance of the denial of the motion to withdraw the plea would amount to nothing less than than the impermissible elevation of procedure over justice.” We do not agree.
It is more than clear from its ruling that the trial court was aware of, and was following, the governing legal principles. Most germane was the court’s recognition that recanting sworn testimony is not accepted at face value, and is in practice heavily discounted. (In re Roberts (2003) 29 Cal.4th 726, 742-743 and decisions cited.) What was stated in People v. Langlois (1963) 220 Cal.App.2d 831, 834, is particularly apt to the situation here: “The fact that an important prosecution witness has recanted does not necessarily compel the granting of the motion. In such a case the trial judge is required to weigh the evidence offered in support of the motion, and he may reject it if he deems it unworthy of belief. [Citations] [¶] The offer of a witness . . . to retract his sworn testimony is always looked upon with suspicion. [Citations.]”
Moreover, in this case the trial court had the advantage of personally observing Wydermyer and assessing his credibility. Resolving that credibility issue adversely to defendant does not qualify as an abuse of discretion. (E.g., People v. Fairbank (1997) 16 Cal.4th 1223, 1254; People v. Sawyer (1967) 256 Cal.App.2d 66, 80.)
We also must note that Wydermyer did not truly recant, that is, he did not unequivocally and positively swear that defendant was not the shooter. He did not truly repudiate his prior testimony and identifications of defendant as his assailant. He did not exclude the possibility that defendant was in fact the man who pumped six bullets into his body. At best, he was allowing for the abstract possibility that a phantom third person was the one who shot him. Wydermyer never moved beyond the position that he might have been mistaken.
Boiled down to its essence, defendant’s motion was based on the perception, seven months after defendant pleaded guilty, that the prosecution’s case was less imposing than defendant originally thought. That is not uncommon: “ ‘Often the decision to plead guilty is heavily influenced by the defendant’s appraisal of the prosecution’s case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. Considerations like these frequently present imponderable questions for which there are no certain answers; judgments may be made in the light of later events seem improvident, although they were perfectly sensible at the time. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant does not correctly assess every relevant factor entering his decision.’ ” (People v. Hunt (1985) 174 Cal.App.3d 95, 103-104, quoting Brady v. United States (1970) 397 U.S. 742, 756-757.)
Although the trial court used the phrase “buyer’s remorse” in reference to Wydermyer, it is more appropriately directed at defendant. With the passage of time, information came to defendant which led him to believe that he may have overestimated the strength of the prosecution’s case against him. However, as Division Three of this district noted, that “is hardly the type of mistake, ignorance or inadvertence which would permit the withdrawal of a guilty plea.” (People v. Watts (1977) 67 Cal.App.3d 173, 183; see In re Brown (1973) 9 Cal.3d 679, 686 [“It is not enough that a defendant assert that [he] has changed [his] mind as to the most expeditious course to follow.”]; In re Vargas (2000) 83 Cal.App.4th 1125, 1143 [“Pleas are not set aside simply because defendants change their minds.”].)
In light of the foregoing, we conclude that defendant has failed to demonstrate a clear abuse of discretion in the denial of his motion to set aside his guilty plea. (People v. Weaver, supra, 118 Cal.App.4th 131, 146; People v. Castenada, supra, 37 Cal.App.4th 1612, 1617.)
Defendant’s other contention requires only the briefest of discussion. The trial court awarded defendant 132 days of custody credits under section 2933.1. Defendant contends he was entitled to 133 days. The Attorney General agrees. Both defendant and the Attorney General ask that the abstract of judgment be modified accordingly. We will order the modification.
DISPOSITION
The judgment is modified to show that defendant is awarded 133 days of custody credit under Penal Code section 2933.1. As so modified, the judgment is affirmed. The clerk of the Solano County Superior Court is directed to prepare an amended abstract of judgment, and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: Kline, P.J., Haerle, J.