Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 204128
NEEDHAM, J.
Appellant Tylo Felix pled guilty to assault with a deadly weapon and admitted an allegation that the offense was a hate crime. (Pen. Code, §§ 245, subd. (a)(1), 422.75, subd. (a).) He appeals from a judgment placing him on felony probation following the denial of his motion to withdraw his guilty plea. We reject his claim that the trial court abused its discretion in denying the motion.
Further statutory references are to the Penal Code.
I. BACKGROUND
A. Facts
Because this case was resolved by a guilty plea entered before the preliminary hearing was held, the facts concerning the underlying offense are taken from the probation report:
Nineteen-year-old appellant was standing with a group of men on the corner of Harrison and Third Street in San Francisco at about 2:00 in the morning on January 6, 2008. Police officers positioned in front of a nearby nightclub noticed them because they were boisterous and tried aggressively to converse with every young woman who passed by.
Kristen H. was walking with a group of friends that included Kaitlyn O., C.A. and Alexis B., all of whom are lesbians. The men in appellant’s group started making obscene and homophobic remarks, including, “They gay and they look like boys, ” and, “Ya’ll some lesbians and you look like men.” Kristen and Alexis told them to relax, and one of the men, later identified as Eric Owusubempah, hit C.A. When Alexis tried to intervene, appellant hit her in the head with a bottle and began punching her with his fist. Kaitlyn tried to stop the fracas and was hit as well.
The police officers in front of the nightclub noticed the commotion and approached to see what was happening. Appellant, who was hitting Kaitlyn when he noticed the officers, told Owusubepemah to run and the two of them fled on foot. As the officers were taking witness statements, the victims recognized the men who had attacked them inside a car that was driving through a parking lot. Officers stopped the car and appellant, who was inside, was identified as the person who had hit Alexis in the head with a bottle. Alexis was taken to the hospital for treatment.
B. Criminal Charges and Change of Plea
The San Francisco District Attorney filed a criminal complaint charging appellant with felony counts of assault with a deadly weapon and battery with serious bodily injury against Alexis B. (§§ 245, subd. (a)(1), 243, subd. (d)), along with allegations that he had personally inflicted great bodily injury and that the offenses were hate crimes motivated by Alexis’s sexual orientation (§§ 12022.7, subd. (a), 422.75, subd. (a)). The complaint also included misdemeanor counts of battery and violating the civil rights of Kaitlyn O. and C.A. due to their sexual orientation. (§§ 242, 422.6, subd. (a).) Eric Owusubempah was charged as a co-defendant with various misdemeanors and his case was resolved separately.
On January 23, 2008, at the time appellant’s preliminary hearing was scheduled, his counsel advised the court that he “want[ed] to enter a plea of guilty to the charge of violating 245(a)(1) of the California Penal Code, a felony, charged in Count 1, ” in exchange for a grant of probation. Counsel stated that she had advised appellant of his right to proceed with a preliminary hearing, his privilege against self-incrimination, his right to a trial by jury, and his right to confront his accusers. She had discussed the elements of the charges against him, the possible defenses to those charges, and “the legal consequences of a guilty plea to the charge and that the potential punishment for this offense is two, three or four years in state prison.” Counsel also informed the court that although she agreed with a disposition of probation, the plea was being entered against her advice: “I think it is a terrible idea for [appellant] at this stage of his life to have this particular – a conviction under this Penal Code section on his record.” She continued, “[Appellant] and I have discussed that at some length this morning and that is in fact his desire.”
The district attorney then stated, “I need to clear up a couple of things, your Honor, before the Court voir dires the defendant. [¶] Count 1, 245(a)(1) is an assault with a deadly weapon, to wit, a bottle, and that is a strike. And we also – I don’t think [defense] counsel covered the admission of the allegation of 422.75 (A). That’s the allegation that this was motivated due to animosity as a result of the sexual orientation of the victims in this case, your Honor, and that’s -- that appears on... top of Page 2 [of the criminal complaint].” Defense counsel acknowledged, “Right, that was the offer. That’s what was conveyed. That’s what [appellant] is accepting.”
The district attorney addressed appellant directly: “Just so the record is clear, ... there’s an allegation that this crime was motivated pursuant to 422.75(A). And what that means is there’s motivation behind the assault in this case that appears in Count 1 is due to the fact that the victim, Ms. Alexis B[.], the person hit with the bottle, it was as a result of her sexual orientation or appearance to you, appearing to be either gay or lesbian or both. Do you understand that?” Defense counsel responded, “Well, he’s been so advised, and the Court will question him accordingly. Thank you.” The court noted that the allegation under section 422.75 added a potential additional term of one, two, or three years in state prison, and defense counsel responded, “That’s true, and he’s also been advised of that. I should have stated that in the initial admonition. I apologize.” The court asked appellant whether he understood this and appellant responded, “Yes, I do, your Honor.”
Asked by the court whether it was his decision to go forward with the deal as stated, appellant responded, “Yes, your Honor.” The court continued, “Okay. You’ve heard the statements made to the Court by [defense counsel] and the things that the district attorney has said and the things I said. Are those statements all true?” Appellant responded, “No contest, your Honor.” After conferring off the record with defense counsel, appellant clarified, “Yeah, that’s what I want to do.”
The court then obtained expressed waivers from appellant of the constitutional rights to a jury trial, to confront the witnesses against him, and against self-incrimination. It advised him, “The acceptance of your plea at this time is not binding on the Court, and if the judge who sentences you does not approve this, you can take back your guilty plea and enter a plea of not guilty. Do you understand that?” Appellant stated that he had a question, and his counsel told him to direct that question to her rather than the court. After they conferred, the court reiterated, “After I or the sentencing judge sees the presentence report, which is going to be prepared, and after seeing that, if there are facts I didn’t know at this point, I could say I’m not going to take this deal because I don’t think it’s appropriate, and you could take back your guilty plea, and we’d be back to where we are right now.” Defendant responded, “Okay” and said that he understood.
The court continued, “Okay.... [W]hat is your plea to violating section 245 (A)(1) of the Penal Code, a felony, as alleged in Count 1 of the complaint?” Appellant stated, “No contest.” The court responded, “You have to plead guilty to a felony. Do you admit or deny that you committed that offense for the purpose of intimidating and interfering with the victim’s free exercise and enjoyment of a right secured by the [C]onstitution and the laws of the United States [and] the State of California because of her sexual orientation? Do you admit or deny that?” Defendant initially stated, “I deny that, ” but after conferring with his counsel, advised the court, “I admit that.” The court found a factual basis for the plea and admission based on its “lengthy discussions with counsel about this case” and found that appellant had entered a plea of guilty having knowingly and intelligently waived his rights.
The district attorney then explained the reason his office had agreed to probation as a disposition: “[T]his was a hate crime against a number of individuals who are all here in the court. Ms. B[.] was struck by a tequila bottle and suffered a fracture. One of the main reasons we agree – the People have agreed to take this plea to a no-prison-time offer is because the victims in this case felt that, one, they believe that it would help them deal with the fact that they were assaulted in San Francisco under these circumstances. It would help them deal with it better if they give this young man an opportunity to correct his ways outside of prison. [¶] And because of their input and because of our respect for their needs to heal, we’ve agreed to this disposition. I hope [appellant] recognizes that and understands the reasons why he’s getting out of jail today, and I hope he takes advantage of that opportunity.”
The court set a date for the sentencing hearing and appellant was released on his own recognizance.
C. Appellant’s Failure to Appear and New Offense
Appellant did not appear at his sentencing hearing on February 20, 2008 and a bench warrant issued for his arrest. On March 2, 2008, he committed an armed robbery in Contra Costa County and, in November 2008, was sentenced to prison for a term of 19 years on that case.
D. Motion to Withdraw Plea
Upon his return to the San Francisco Superior Court for sentencing in the instant case, appellant filed a motion to withdraw his plea to assault with a deadly weapon. (See § 1018.) As relevant here, appellant alleged that his plea was involuntary because he had been harassed by other inmates while in pretrial custody in San Francisco and was anxious to take an offer of probation so he could leave the jail. Appellant also claimed that the entry of the plea was defective because he purported to enter a plea of no contest rather than guilty, and because it is apparent from his remarks that he did not understand the terms of the deal.
An evidentiary hearing was held at which appellant testified that following his arrest for the underlying charges, he was placed in the San Francisco jail where he was harassed by other inmates. Some of his property was stolen and he was involved in two fights, but he did not report these incidents because he did not want to be labeled a “snitch.” Appellant, who is small in stature, had been incarcerated in other jails, but had never been targeted before. He thought the other inmates were picking on him because he was not from San Francisco. He never requested a transfer and though he was obtaining medical treatment for an ingrown toenail, never advised the nurse that he had been assaulted.
Appellant testified that he was surprised when his attorney told him about the deal that was being offered by the prosecution. They discussed the deal for only five to 10 minutes, and appellant was under the impression he would be allowed to return to court if he wanted to take back his plea. Appellant was concerned about keeping his job and attending school, and was willing to do anything to go home. He claimed he did not know about the hate crime allegation and attempted to enter a plea of no contest because the statements regarding what he had done were not true and he did not want to admit that he was motivated by the victim’s sexual orientation. His attorney told him he would have to admit that allegation if he wanted to go home, so he did so. Appellant did not mention to his probation officer that his plea had been coerced when he spoke to him about victim restitution.
The court denied the motion to withdraw the guilty plea. It found that appellant had not carried his burden of showing that he had been coerced into entering the plea, and though it had “a few more concerns” about the plea transcript itself, “the totality of the circumstances shows that there was a knowing and intelligent entering of the plea and the admission.” The court placed appellant on felony probation for three years, with the proposed probation order modified to delete certain conditions that would have been impossible for appellant to satisfy while serving the prison sentence on the robbery case (i.e., community service and counseling).
While the practice of granting probation to a defendant serving a prison term in another case is not customary, appellant makes no claim that probation was unauthorized.
II. DISCUSSION
Section 1018 provides, “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 promote justice.” Appellant contends he established good cause to withdraw his plea and that the trial court erred in denying his motion.
A defendant seeking to withdraw his guilty plea under section 1018 bears the burden of establishing good cause, i.e., that when he entered the plea, he “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.]” (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208 (Huricks).) Good cause must be demonstrated by clear and convincing evidence. (People v. Shaw (1998) 64 Cal.App.4th 492, 496.)
If the defendant was represented by counsel when a guilty plea was entered, the ruling on an application to withdraw that plea is “ ‘purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result.’ ” (People v. Weaver (2004) 118 Cal.App.4th 131, 146 (Weaver).) Accordingly, we review the trial court’s ruling on a motion to withdraw for abuse of discretion and accept the court’s factual findings where supported by substantial evidence. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) “ ‘Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.’ ” (Weaver at p. 145.)
Appellant suggests he should have been allowed to withdraw his plea because he was surprised by the district attorney’s offer and did not have adequate time to consider it. We are not persuaded. Before the plea was entered, defense counsel advised the court that she had discussed with appellant the elements of the charged crimes, the possible defenses, and the legal consequences of a guilty plea, and neither counsel nor appellant requested more time to consider the offer. (See People v. Grey (1990) 225 Cal.App.3d 1336, 1340, overruled on other grounds in In re Jordan (1992) 4 Cal.4th 116, 119; People v. Watts (1977) 67 Cal.App.3d 173, 182-183 [short time to consider offer by prosecution was not good cause to set aside the plea where defendant did not request additional time].)
Nor are we persuaded by appellant’s claim that the motion should have been granted because he did not know before entering his plea that he would be admitting the hate crime allegation. Although appellant correctly notes that defense counsel did not initially mention the hate crime allegation when advising the court her client would be pleading guilty, the district attorney stated on the record that an admission of that allegation was part of the deal. Appellant confirmed that he understood this, and defense counsel stated that she had discussed the hate crime allegation with appellant before the change of plea hearing. The trial court was not required to accept appellant’s testimony at the hearing on the motion to withdraw the plea that he did not expect to admit the allegation. (See People v. Hunt (1985) 174 Cal.App.3d 95, 103 (Hunt).) Similarly, the court was not required to credit appellant’s claim that he entered his plea because he mistakenly believed he could take it back if he changed his mind. The court correctly advised appellant on the record that he would be permitted to withdraw his plea if he received a less favorable disposition at sentencing. (See § 1192.5.) The record reflects that he was able to discuss this admonition with his counsel and stated on the record that he understood what it meant.
Appellant also complains that defense counsel had recommended he not plead to such a serious crime. This is of no moment, because counsel’s consent to the plea was not required. (Compare § 1018 [counsel must consent to guilty plea in cases where penalty is death or life without the possibility of parole].) Courts have held that a defendant’s “unwilling acceptance” of his counsel’s advice is not a “factor overreaching [a] defendant’s free and clear judgment.” (Hunt, supra, 174 Cal.App.3d at p. 103; People v. Urfer (1979) 94 Cal.App.3d 887, 892-893.) A defendant who proceeds against his counsel’s recommendation has exercised his free will to an even greater extent. The record establishes that counsel discussed the district attorney’s offer with appellant and he elected to go forward notwithstanding her advice; the trial court could reasonably conclude that appellant did not lack the information required to make an informed decision.
Turning to the change of plea colloquy, appellant notes that he replied “no contest” when asked how he pled to the assault charge, and was then corrected by the court, which told him “You have to plead guilty to a felony.” Appellant claims that he was trying to plead no contest, and that absent further clarification by the court, he cannot be said to have entered an effective guilty plea. As the district attorney acknowledged, the guilty plea was “less than perfect, ” but this does not mean it was ineffective or that good cause existed to set it aside.
Defense counsel stated repeatedly that appellant was entering a plea of guilty and the court could reasonably conclude that appellant adopted this plea when he stated that the things defense counsel had told the court were true and that he wanted to proceed as counsel had indicated. (See In re Martinez (1959) 52 Cal.2d 808, 815; People v. Martin (1964) 230 Cal.App.2d 62, 64.) In any event, appellant cannot demonstrate that he has been prejudiced because there is no substantive difference between a plea of no contest and a plea of guilty in a felony case. (§ 1016, subd. (3); see People v. Hightower (1990) 224 Cal.App.3d 923, 928.) The record reflects that appellant understood his plea would result in a conviction and a probationary term.
Appellant suggests the court gave him inaccurate advice when it stated, “You have to plead guilty to a felony, ” because a defendant may plead no contest to a felony if the plea is approved by the court. (See § 1016, subd. (3).) We think the court’s remark is more reasonably construed to mean that in this particular case, the deal offered by the district attorney and approved by the court required a plea of guilty rather than a plea of no contest.
We also reject appellant’s argument that the harassment he claims to have suffered in jail supplied good cause for setting aside the plea. Though appellant testified that he was involved in two physical altercations, he did not report these incidents, seek a transfer or take any other steps to improve his situation. The court was not required to credit appellant’s testimony that they had occurred, and it reasonably concluded that whatever had happened (if anything) it was not sufficient to overcome appellant’s free will in entering his plea. (See Hunt, supra, 174 Cal.App.3d at p. 103.) A reasonable interpretation of the evidence presented at the hearing on the motion to withdraw was that appellant, charged with a serious offense and eager to return to his everyday life, had decided to accept an offer by the prosecution that would get him out of jail and prevent him from going to prison. “Nothing in the record indicates [appellant] was under any more or less pressure than every other defendant faced with serious felony charges and the offer of a plea bargain.” (Huricks, supra, 32 Cal.App.4th at p. 1208.)
Finally, appellant contends the court did not adequately inquire about the factual basis for the hate crime allegation. (§ 1192.5.) We disagree. Appellant stated on the record that he understood the district attorney’s statement that the allegation meant “there’s motivation behind the assault in this case... that the victim, Ms. Alexis B[.], the person hit with the bottle, it was as a result of her sexual orientation or appearance to you, appearing to be either gay or lesbian....” Greater detail was not required. (See, generally, People v. Willard (2007) 154 Cal.App.4th 1329, 1333.) Even if we assume that no sufficient factual basis for the admission was elicited at the change of plea hearing, appellant acknowledges that the probation report contains sufficient information about the underlying facts and renders any error harmless. (People v. Holmes (2004) 32 Cal.4th 432, 443.)
We do not consider the effect of appellant’s delay in bringing the motion to withdraw his plea as we are urged to do by the Attorney General. It does not appear the trial court relied on that factor in reaching its decision.
III. DISPOSITION
The judgment is affirmed.
We concur. JONES, P. J., BRUINIERS, J.