Opinion
E066543
01-16-2018
THE PEOPLE, Plaintiff and Respondent, v. JORGE ESTRADA, Defendant and Appellant.
Cathryn Lintvedt Rosciam, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Warren J. Williams, and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV1503741) OPINION APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller, Judge. Affirmed. Cathryn Lintvedt Rosciam, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Warren J. Williams, and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
In October 2015, defendant and appellant, Jorge Estrada, shot a stranger in the back in his driveway without any provocation. He was later charged with attempted murder (Pen. Code, §§ 664/187, subd. (a); count 1) and assault with a firearm (§ 245, subd. (a)(2); count 2). He was also charged with personally using and discharging a firearm (§ 12022.5, subds. (a), (d)) in count 2, and intentionally discharging a firearm causing great bodily injury (§ 12022.53, subds. (b), (c), (d)), and personally inflicting great bodily injury (§ 12022.7, subd. (a)) in the commission of both counts.
All future statutory references are to the Penal Code unless otherwise stated.
Plea negotiations proceeded to the day of trial, and the prosecutor reduced the offer from 12 years to seven years if defendant pled guilty to assault with a firearm and admitted one of the firearm enhancement allegations. Defendant requested more time to consider the offer, and the trial court provided him with two additional hours instead of the 60 days that he requested. Defendant accepted the offer and pled no contest to assault with a firearm (§ 245, subd. (a)(2)) and admitted the allegation that he personally used a firearm during the commission of the offense (§ 12022.5, subd. (a)).
Defendant subsequently filed a motion to withdraw his guilty plea, claiming that he felt "immense pressure" to accept the plea and that he had insufficient time to consider the offer. The trial court denied the motion after determining defendant had sufficient time to consider the plea offer and defendant understood all of the terms of his plea agreement. The trial court thereafter sentenced defendant in accordance with the plea agreement to seven years in prison with credit for time served.
Defendant appeals from the denial of his motion to withdraw his plea, arguing the trial court erred by denying his motion because the limited amount of time he had to consider the plea offer rendered the plea involuntary. We reject defendant's contention and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the preliminary hearing.
On October 3, 2015, Ontario Police Officer Flores was on duty when he was dispatched to investigate a shooting. When Officer Flores arrived at the scene, he saw a male victim lying on the ground bleeding heavily. A woman was applying pressure to the victim's right shoulder and chest area, and there was a substantial amount of blood on the street and on the sidewalk under the victim.
The victim told Officer Flores that he had been at a liquor store when some women pulled up in a car and asked him if he wanted to "kick back" and "party" with them. The women offered him a ride and he got into the car with them. At some point, the driver crashed the car and the victim exited the vehicle. The victim then heard a loud boom, felt something hit him from behind, and realized he had been shot.
When medical personnel arrived, they cut off the victim's shirt. Officer Flores saw a wound above the victim's clavicle that he recognized as a bullet hole. The victim was taken to the hospital.
Detective Marquez investigated the scene, which was the driveway of a single family house. Detective Marquez saw the remnants of a traffic accident in the driveway, between a Chevy pickup truck and a parked Honda vehicle. Detective Marquez located three shell casings on the driveway close to the front door of the house. Detective Marquez saw defendant sitting on a bench in the front yard. Defendant told Detective Marquez that he was in his living room watching television when he heard a loud noise. He grabbed a .40-caliber handgun from his desk, went outside, and shot at the people in front of his house. Defendant said he saw two males in the middle of his driveway arguing, and he fired his gun three times in the direction of the men in his driveway, not aiming at anyone in particular. Defendant admitted the men had not threatened him, they had not said anything to him, and he did not know them. Defendant said he had firearm training and he knew that a person could be killed if shot with a firearm. The victim told Detective Marquez his back was facing defendant's front door when he was shot in the back and he did not know defendant.
On October 21, 2015, an information was filed charging defendant with attempted murder (§§ 664/187, subd. (a); count 1) and assault with a firearm (§ 245, subd. (a)(2); count 2). The information further alleged that defendant personally used and discharged a firearm (§ 12022.5, subds. (a), (d)) in count 2, intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (b), (c), (d)), and personally inflicted great bodily injury (§ 12022.7, subd. (a)) in counts 1 and 2.
On April 18, 2016, the day of trial, during a conference in chambers, the prosecutor offered defendant seven years in prison at 85 percent if he pled guilty to assault with a firearm with a gun use enhancement. Defense counsel indicated the prosecutor's prior offer was 12 years, and informed the court that defendant "would like time to think about it," and would be willing to waive an additional 60 days of time. The trial court responded, "No. Both sides have announced ready. I have a panel for this afternoon. So he can think about it over the noon hour, and we'll start at 1:30." The trial court declared a recess at 11:44 a.m., and the parties reconvened at 1:30 p.m.
When the hearing resumed, the trial court indicated plea negotiations had been going on and it was up to defendant at that time to decide. Defense counsel had made a counteroffer of five years, which was rejected by the People. The court noted, "We're ready to go forward with the trial in this matter. [¶] What do you wish . . . to do, sir?" Defendant responded, "I guess I'll take a deal." The court then called a recess to allow defendant to fill out the plea form.
The parties completed the plea form, and defendant indicated to the trial court that he read the agreement and understood it. Defendant had no questions about the written agreement, and told the court that he had sufficient time to discuss the matter with his attorney. After the court explained to defendant the rights defendant would be waiving by entering into the plea agreement, defendant acknowledged he understood his constitutional rights and he would be willing to waive them. Defendant also indicated no one had forced him to enter into the plea agreement and the plea agreement was in his best interest. After the court again explained the plea agreement and the consequences of pleading guilty, the court again asked defendant if he had any questions. Defendant responded, "No." Thereafter, defense counsel stipulated to the preliminary hearing transcript as the factual basis, and defendant pled no contest to assault with a firearm (count 2). Defendant also admitted the firearm use allegation (§ 12022.5, subd. (a)). The court found defendant understood his constitutional rights and the nature of the crimes charged. The court also found that defendant personally waived his constitutional rights and that defendant understandingly and voluntarily pled no contest. The court found a factual basis for the plea.
As part of the plea agreement, defendant agreed to and initialed, among other conditions, the following:
"19. I have had sufficient time to consult with my attorney concerning my intent to plead guilty/no contest to the above charge(s) (and admit any prior conviction or enhancement). My lawyer has explained everything on this Declaration to me, and I have had sufficient time to consider the meaning of each statement. I have personally placed my initials in certain boxes on this Declaration to signify that I fully understand and adopt as my own each of the statements which correspond to those boxes.
"20. I waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain."
On May 16, 2016, defendant's trial counsel declared a conflict and new counsel was appointed.
On June 1, 2016, new counsel filed a motion to withdraw the plea on grounds of duress or coercion. Defendant stated in his declaration that he felt "immense pressure" to accept the plea bargain because his attorney "hurried" him to either accept the plea offer or go to jail for a long period of time (24 years). Defendant also stated his family "forced" him to accept the offer, and further that his attorney told him that even though the offer was seven years in prison, he would only serve three years, which he later discovered was untrue.
A hearing on defendant's motion was held on June 10, 2016. Defense counsel argued good cause existed to withdraw the plea because defendant "was operating under mistake, ignorance, and other factors overcoming [his] exercising free will, including inadvertence and duress." Defense counsel also noted that "defendant had been in custody for eight months and the offer was only relayed to him on the date of the plea that happened to be the date of the trial." Defense counsel further argued that defendant felt pressure to accept the plea, explaining "[t]he totality of the situation, all the people who could possibly influence the defendant, his family, his attorney, were able to do so when the defendant was extremely vulnerable just before trial telling him to take the deal or go away for a long period of time." Defense counsel asserted, "If the trial was not eminent, the defendant would not have been in the mind frame to be so coerced." Defense counsel also argued defendant was confused and indecisive when taking the plea, because he asked for more time and when asked whether he wished to take the plea, he responded " 'I guess I'll just take a deal.' " Defense counsel believed this was not a case of buyer's remorse, but that "defendant would never have taken the plea had he not been coerced into it and confused about taking the plea."
The prosecutor responded defendant had obtained a "very sweet deal," in light of an "enormous" potential sentence. The prosecutor also stated defendant had a significant amount of time to consider the offer, and he was able to speak to his lawyer, his lawyer's supervisor, and members of his friends and family, before defendant accepted the offer.
The trial court found defendant had sufficient time to consider the offer. The court noted that recess occurred at 11:44 a.m. and the proceedings resumed in the afternoon. The court observed that only defendant's declaration indicated that his attorney did not inform defendant about the appropriate amount of prison time he would be required to serve. The court further stated that it went over the ramifications of defendant's guilty plea very clearly with defendant and that defendant indicated he understood it all. The court thereafter denied defendant's motion to withdraw the plea and sentenced defendant in accordance with the plea agreement.
On July 27, 2016, defendant timely filed a notice of appeal and request for certificate of probable cause. The trial court granted defendant's request for certificate of probable cause on August 2, 2016.
III
DISCUSSION
Defendant argues due process of law requires his guilty plea be withdrawn because his free judgment was overcome by mental coercion, resulting in an involuntary plea. Specifically, he asserts the trial court erroneously denied his motion to withdraw his plea because the two-hour period the court provided for him to consider the People's plea offer was so insufficient that it rendered his plea involuntary.
The People respond defendant's claim should be rejected because he waived his right to appeal when he entered into the plea agreement. In the alternative, the People maintain the trial court did not abuse its discretion in denying defendant's motion to withdraw because the record shows defendant had adequate time to consider the prosecutor's offer.
A. Waiver of Right to Appeal
The People argue defendant waived his right to appeal by entering into a written plea agreement containing a provision stating: " 'I waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain.' " The People assert that this appeal must be dismissed because defendant waived his right to appeal the court's ruling denying his motion to withdraw his plea.
A defendant who pleads guilty may waive the right to appeal. (People v. Panizzon (1996) 13 Cal.4th 68, 80 (Panizzon); People v. Vargas (1993) 13 Cal.App.4th 1653, 1658 (Vargas).) Unlike in People v. Sherrick (1993) 19 Cal.App.4th 657, and Vargas, at page 1662, defendant's plea declaration discloses that he expressly waived his right to appeal "from any motion [he] . . . could bring and from the conviction and judgment . . . since [he was] getting the benefit of [the] plea bargain." Defendant's plea bargain encompassed waiver of the right to appeal prospective motions, such as his motion to withdraw his no contest plea. Defendant was also aware when he waived his right to appeal of the stipulated seven-year sentence, including serving the sentence at 85 percent. This was the risk he knowingly and voluntarily took in foregoing a jury trial, pleading no contest to assault with a firearm and admitting the firearm use allegation, and agreeing to a specified sentence.
In Panizzon, supra, 13 Cal.4th 68, our high court held that the defendant waived his right to appeal a challenge to the disproportionality of his sentence. (Id. at pp. 86-87.) In Panizzon, the defendant appealed on the ground his sentence, entered pursuant to a guilty plea agreement, was disproportionate to sentences imposed upon his codefendants. The People requested dismissal of the appeal based on the defendant's waiver of his appellate rights. The waiver language contained in the defendant's plea agreement stated in relevant part: "I hereby waive and give up my right to appeal from the sentence I will receive in this case. I also waive and give up my right to appeal the denial of any and all motions made and denied in my case." (Id. at p. 82.)
Citing People v. Orozco (2010) 180 Cal.App.4th 1279 (Orozco), defendant argues the instant case is distinguishable from Panizzon because the defendant in that case entered into his plea knowingly and voluntarily, unlike in this case. We disagree.
First, we reject defendant's contention he did not enter into his plea knowingly and voluntarily. The trial court must examine whether the defendant understood the nature of the charges, the elements of the offense, the pleas and the defenses at the time of his plea. (People v. Hunt (1985) 174 Cal.App.3d 95, 103 (Hunt).) In this case, the trial court, after explaining the plea to defendant, the constitutional rights defendant would be waiving, and the consequences of pleading no contest, found that defendant understood his constitutional rights and the nature of the charges and that defendant understandingly and voluntarily pled no contest. This is supported by defendant's affirmative answers to the trial court's inquiry of whether he understood the rights he was giving up and the consequences he faced.
In addition, defendant acknowledged that the plea agreement was in his best interest, considering all of the possibilities, and that no one had forced him to enter into the agreement. Defendant also indicated that he had sufficient time to discuss the matter with his attorneys. We note an involuntary plea is different from an unwilling plea, in that "it is 'involuntary' if done without choice or against one's will," and unwilling if done reluctantly. (People v. Knight (1987) 194 Cal.App.3d 337, 344, quoting Hunt, supra, 174 Cal.App.3d at p. 103.) As noted, the trial court confirmed that no one had applied any pressure or threats against defendant.
Second, defendant's reliance on Orozco is misplaced. In Orozco, supra, 180 Cal.App.4th 1279, the court held "justice dictates that a claim of ineffective assistance of counsel in connection with the making of the waiver agreement cannot be barred by the agreement that is the product of the alleged ineffectiveness." (Id. at p. 1285, italics added.) Consequently, a waiver of the right to appeal applies to " 'error occurring before but not after the waiver.' " (Id. at p. 1284.)
Here, defendant has not asserted an ineffective assistance of counsel claim. Furthermore, the record shows defendant understood he was waiving any right to appeal his plea. Moreover, "the real thrust of defendant's claim concerns events predating entry of the plea and waiver." (Panizzon, supra, 13 Cal.4th at p. 86.) During the plea colloquy, the following occurred:
"THE COURT: . . . [¶] I've been handed a change of plea form that indicates that you are prepared to change your plea to a plea of no contest to Count 2, the assault with a firearm. And you're prepared to admit under 12022.5[, subdivision] (a) that you personally used a firearm.
"The agreement is that you would be sentenced to the middle term of three years to state prison, consecutive to the enhancement—or the enhancement would be consecutive to the state prison commitment, to the middle term of four years for the enhancement; for a total of seven years.
"And I would set sentencing over the May 16, 2016, and you're—oh, and it's at 85 percent. You would be required to do 85 percent of the time in custody. Is that your understanding of the agreement?
"THE DEFENDANT: Yes.
"THE COURT: Okay. I have this three-page document. Did you read and understand it?
"THE DEFENDANT: Yes.
"THE COURT: Do you have any questions about any of the information contained in this document?
"THE DEFENDANT: No.
"THE COURT: Are these your initials in the boxes?
"THE DEFENDANT: Yes.
"THE COURT: Have you had sufficient time to discuss this matter with your attorneys?
"THE DEFENDANT: Yes."
Accordingly, the record demonstrates defendant understood he was waiving any right to appeal his plea. This would have included his right to complain about the length of time he was permitted to consider the plea offer, since defendant would have been well aware of the time limitations at the time he took his plea. (See Orozco, supra, 180 Cal.App.4th at p. 1284 [waiver of appeal ordinarily includes error occurring before but not after waiver].) Panizzon recognized "a defendant's waiver of 'possible future error' is outside the defendant's contemplation and knowledge at the time the waiver is made" and thus, "a defendant's general waiver of the right to appeal, given as part of a negotiated plea agreement, will not be construed to bar the appeal of . . . errors occurring subsequent to the plea." (Panizzon, supra, 13 Cal.4th at p. 85, fn. omitted.) Defendant here complains of alleged errors that occurred before he pled no contest.
The Panizzon court addressed the issue of waiver of the right to appeal prospective, unknown error, including constitutional challenges. In Panizzon, the court rejected the defendant's contention that any error occurring after the entry of his plea constituted future sentencing error that was beyond the scope of the waiver. The Panizzon court explained that "what defendant seeks here is appellate review of an integral element of the negotiated plea agreement, as opposed to a matter left open or unaddressed by the deal. Since both the length of the sentence and the right to appeal the sentence are issues that cannot fairly be characterized as falling outside of defendant's contemplation and knowledge when the waiver was made, the reasoning of People v. Sherrick, supra, and People v. Vargas, supra, is inapposite. [¶] Defendant's characterization of the issue on appeal as an 'unforeseen or unknown error' is off the mark because the sentence imposed by the court was neither unforeseen nor unknown at the time defendant executed the Waiver and Plea agreement. Moreover, the essence of defendant's claim is that his sentence is disproportionate to his level of culpability [citation], a factor that also was known at the time of the plea and waiver. Thus, the real thrust of defendant's claim concerns events predating entry of the plea and waiver." (Panizzon, supra, 13 Cal.4th at p. 86.)
Here, when defendant entered into the plea agreement, he was well aware of the time limitation the court placed on him to either take the deal or proceed to trial. The Panizzon court addressed this uncertainty. The Panizzon court reasoned that " '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 that 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 did not correctly assess every relevant factor entering into his decision.' [Citation.] This logic applies with equal force to dispel any notion that the subsequent unfolding of unknown or unforeseen events somehow renders a waiver of appellate rights unintelligent or otherwise defective at the time it was given." (Panizzon, supra, 13 Cal.4th at pp. 86-87.)
Here, defendant was aware of the seven-year sentence to be served at 85 percent before he pled no contest and chose to avoid the risk of trial and foreclose the possibility of being sentenced to a lengthy term. Defendant thus waived his right to appeal his sentence and the trial court's ruling denying his motion to withdraw his no contest plea.
B. Denial of Motion
Even assuming there was no waiver of defendant's right to appeal, defendant's contentions raised on appeal lack merit. Defendant contends the trial court erred in denying his motion to withdraw his no contest plea because two hours was insufficient time to consider a plea offer when counsel had requested additional time, rendering his plea involuntary.
Section 1018 provides 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. . . . This section shall be liberally construed to effect these objects and to promote justice."
The court in People v. Weaver (2004) 118 Cal.App.4th 131 (Weaver), described the general legal principles that apply to a defendant's motion to withdraw a guilty plea: "A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. [Citations.] . . . 'Good cause must be shown for such a withdrawal, based on clear and convincing evidence. [Citation.]' [Citations.] '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.]' [Citation.] 'The burden is on the defendant to present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty.' [Citation.]" (Id. at pp. 145-146; see People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)
"Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged." (Hunt, supra, 174 Cal.App.3d at p. 103.) "A plea may not be withdrawn simply because the defendant has changed his mind." (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) "The fact that [a defendant] may have been persuaded, or was reluctant, to accept the plea is not sufficient to warrant the plea being withdrawn. [Citation.]" (People v. Ravaux (2006) 142 Cal.App.4th 914, 919 (Ravaux), citing People v. Urfer (1979) 94 Cal.App.3d 887, 892.)
"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.]" (People v. Shaw (1998) 64 Cal.App.4th 492, 495-496 (Shaw); see People v. Holmes (2004) 32 Cal.4th 432, 442-443 (Holmes); People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796 (Giron); Ravaux, supra, 142 Cal.App.4th at p. 917.) We "must adopt the trial court's factual findings if substantial evidence supports them." (People v. Fairbank (1997) 16 Cal.4th 1223, 1254 (Fairbank).) A trial court abuses its discretion if it "exercises discretion in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice." (Shaw, at p. 496.) "Moreover, the reviewing court is justified in concluding that the motion was properly denied when it is shown that the accused 'acted with knowledge of the facts and on advice of his counsel.' " (People v. Cooper (1954) 123 Cal.App.2d 353, 356.)
Initially, we note defendant incorrectly argues the trial court's denial of his motion to withdraw his plea should be reviewed de novo because voluntariness of his plea is at issue. He cites Panizzon to support his claim. Panizzon, however, does not support defendant's contention that a trial court's denial of a motion to withdraw a guilty plea should be reviewed under the de novo standard of review if voluntariness of a plea is at issue. Instead, the Supreme Court in Panizzon stated, "The voluntariness of a waiver is a question of law which appellate courts review de novo." (Panizzon, supra, 13 Cal.4th at p. 80, citing Vargas, 13 Cal.App.4th at p. 1660, italics added.) Defendant here is not contending his waivers of his rights were involuntary. Defendant appears to confuse the issue on appeal. Contrary to defendant's contention, it is well settled that a trial court's denial of a motion to withdraw a guilty plea is reviewed for abuse of discretion. (Holmes, supra, 32 Cal.4th at pp. 442-443; Fairbank, supra, 16 Cal.4th at p. 1254; Giron, supra, 11 Cal.3d at p. 796; Ravaux, supra, 142 Cal.App.4th at p. 917; Weaver, supra, 118 Cal.App.4th at p. 146; Shaw, supra, 64 Cal.App.4th at pp. 495-496.)
During oral argument, defendant's appellate counsel maintained the de novo standard of review applies in this case. Even if we apply the de novo standard of review, based on the facts of this case and for the reasons explained below, we find defendant's plea was voluntary and the outcome would be the same. A grudging or reluctant acceptance of a plea does not equate to an involuntary plea. --------
Defendant argues he entered the plea under duress or mental coercion overbearing his free will and resulting in an involuntary plea because he had insufficient time to consider the plea. However, contrary to defendant's apparent assertion, a two-hour time limit to consider a plea bargain offer does not necessarily deprive a defendant of his or her free will or unduly coerce the defendant into accepting the offer. Rather, it is the trial court's function to weigh the evidence in a particular case in determining whether a defendant shows, by clear and convincing evidence, he or she did not freely and voluntarily accept a plea bargain. Although a time limit imposed on the offer may cause a defendant some stress, or duress, it may not necessarily be undue duress that precludes a defendant from freely and voluntarily agreeing to the plea bargain.
Based on our review of the record in this case, there is substantial evidence to support the trial court's finding that defendant had sufficient time to consider the offer so that he was not precluded from agreeing, and did agree, to the plea bargain freely and voluntarily. Defendant's counsel requested additional time to consider the offer, and the trial court provided defendant with two hours. During that time, defendant discussed the matter with his attorney, his attorney's supervisor, and several friends and family members. Furthermore, by the time defendant received the People's "final offer" on the day set for trial, defendant would have already been well aware of the charges and the validity of the case, including testimony of the witnesses and his defenses or possible defenses. In other words, there was nothing else in terms of the case for defendant to consider, except either accept the People's final offer or proceed to trial. After conferring with his counsel, his counsel's supervisor, and his family and friends, defendant signed the change of plea form in which he stated he entered his no contest plea freely and voluntarily. There is substantial evidence to support the trial court's finding that defendant had sufficient time to confer with counsel regarding, and to consider, the plea bargain before accepting it and entering his guilty plea. The trial court reasonably rejected defendant's assertion to the contrary as stated in his declaration and as his counsel argued at the hearing on his motion to withdraw his guilty plea.
Defendant attempts to analogize his case to People v. McGarvy (1943) 61 Cal.App.2d 557 (McGarvy), but McGarvy is distinguishable. In McGarvy, the defendant was arrested for murder on one day and arraigned the next day. The following day, he appeared in court with an attorney and entered a guilty plea to the charge of manslaughter. (Id. at p. 558.) He was sentenced on his guilty plea 10 minutes later. (Ibid.) His plea came after conversing with the attorney for 20 to 30 minutes about the facts of the case. (Id. at p. 560.) The attorney he spoke with was not even appointed to represent him; but rather, was only asked to speak with him by the prosecutor. (Id. at pp. 560-561.) The trial court denied the defendant's motion to change his plea, and the appellate court reversed. (Id. at pp. 558, 565.) The appellate court concluded "that there was undue haste in the entire disposition of the case." (Id. at p. 561.)
This case is clearly distinguishable from McGarvy. Defendant considered and accepted the plea offer on April 18, 2016, the day set for jury trial, and approximately six months after the complaint was filed against defendant on October 6, 2015. Thus, defendant had nearly six months to contemplate the nature and validity of the charges against him prior to entering his plea. (People v. Thompson (1949) 94 Cal.App.2d 578, 583 [ample time for deliberation upon entering a plea more than one month after the filing of the complaint].) Unlike McGarvy, there was no "undue haste" here.
To the extent defendant asserts McGarvy supports his assertion that a two-hour period to consider a plea offer when counsel has requested additional time is necessarily insufficient for a defendant to freely and voluntarily agree to a plea bargain, we disagree. Each case must be decided on its circumstances and we cannot conclude a two-hour period to consider a plea offer is, as a matter of law, insufficient time for a defendant to freely and voluntarily agree to a plea bargain. In fact, defendant cites no authority holding that a limited-time plea offer in comparable circumstances would be so coercive as to render a defendant's acceptance of the offer involuntary.
Defendant has not established, by clear and convincing evidence, that he entered his guilty plea through mistake, ignorance, inadvertence, or any other factor overcoming his exercise of a free judgment. The court read defendant's written motion, listened to defendant's arguments at the hearing, rejected them, and found defendant entered the plea knowingly and voluntarily. Before the plea was entered, defendant advised the court that he had sufficient time to discuss the matter with his attorney. In addition, defendant acknowledged that he understood the terms of his plea, including serving seven years at 85 percent, and the constitutional rights he would be waiving. He also indicated that he read and understood the plea agreement and that he had no questions about the plea agreement, the plea form, or his constitutional rights. Furthermore, defendant initialed the statement in his plea agreement stating he had sufficient time to consult his attorney concerning his intent to plead no contest to the assault with a firearm charge and admit the gun use enhancement. Defendant also initialed the statement in his plea form noting his lawyer had explained everything on the plea form declaration and that he had sufficient time to consider the meaning of each statement on the plea form. Thus, there is more than sufficient evidence to support the conclusion that defendant knowingly and voluntarily entered his guilty plea.
Because there is substantial evidence to support the trial court's finding that defendant freely and voluntarily agreed to the plea bargain, we conclude the court did not abuse its discretion by denying defendant's motion to withdraw his plea.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. McKINSTER
J.