Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM026499
ROBIE, J.
Defendant Edward Peter Ferreira, Jr., pled no contest to assault with a semiautomatic weapon on a peace officer and admitted a great bodily injury enhancement. In return, he received a stipulated prison sentence of 12 years. On appeal, with a certificate of probable cause, defendant contends the court erred in denying his motion to withdraw his plea. Disagreeing with defendant, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2006, Butte County Deputy Sheriff Jason Louis was training a police dog at the Oroville Wildlife Area. During the training, Deputy Louis radioed the dispatcher that he was going to contact a suspicious person. A gap in radio traffic followed. When the dispatcher reached the deputy again, Deputy Louis said he needed help immediately.
The next thing Deputy Louis remembered was waking up on the ground with defendant tugging at his holster, trying to remove his gun. The deputy struggled with defendant, and the gun discharged, firing through the deputy’s leg. Defendant ran off.
Deputy Louis’s wounds were extensive. He needed 17 staples on his leg, used crutches for five to six weeks, and had two lumps on the back of his head. He still suffers from blurred vision and neck and leg pain and needs painkillers.
The day after the shooting, defendant and codefendant Joeann Fite (who is the mother of defendant’s daughter) contacted Fite’s tenants and made a deal with them to reduce their rent in exchange for immediate cash, then used the cash to flee to Montana.
On September 12, 2007, attorney Jesus Rodriguez substituted in as appointed counsel.
On October 22, 2007, a consolidated information was filed, charging Fite as an accessory after the fact.
On October 26, 2007, Rodriguez moved to continue the trial, claiming that he had not yet been able to review all the discovery or contact potential witnesses. At an in camera hearing, Rodriguez stated he had had the case for about a month and one-half and had been doing everything possible to prepare for trial, but significant investigation still needed to be done. On October 30, 2007, the court denied the motion.
On November 2, 2007, defendant withdrew his not guilty plea and entered a no contest plea to a single count in exchange for dismissal of the remaining counts and allegations and three other pending cases. The court immediately imposed the stipulated term, but it continued the matter for the calculation of credits, fines, penalties, and assessments.
After the court accepted defendant’s plea, Fite pled no contest to being an accessory. It was explained that defendant’s and Fite’s pleas were a package deal.
Thereafter, defendant orally moved to withdraw his plea. The court appointed attorney Jodea Foster to investigate the basis for the motion. Foster filed a written motion to withdraw the plea, stating two grounds: (1) defendant’s plea was involuntary because counsel was unprepared to go to trial due to the denial of the continuance motion; and (2) defendant’s plea was not knowing and intelligent because he did not read and understand the plea form and therefore relied on his counsel’s erroneous advice that he would receive “half-time” credits on his prison sentence and all of his presentence custody credits.
The People filed an opposition asserting, among other things, that: (1) letters defendant had written proved he was literate enough to read and understand the plea agreement; and (2) the letters and transcripts of a jail telephone conversation with his mother revealed that his true motive for withdrawing his plea was to sabotage Fite’s plea deal as revenge for her trying to stop defendant from seeing their daughter.
At a hearing on the motion, defendant testified that he had a ninth-grade education and his grasp of the English language was “[a]ll right.” Attorney Rodriguez told him if he did not take the plea deal, he would lose. Rodriguez also said he did not have enough time to prepare. Finally, Rodriguez falsely told him the deal would give him 50 percent prison credits and presentence custody credits.
On cross-examination, the prosecutor confronted defendant with his letters and the transcripts of his jail conversations. Defendant admitted that on November 20, 2007, (after he had moved orally to withdraw the plea, but before attorney Foster had filed the written motion), he wrote to Fite: “If you don’t want me to pull my plea you better come bring my daughter to see me.”
The prosecutor confronted defendant with the transcript of a jail conversation with his mother in which the following exchanges occur:
1. “[Mother:] So are you going to trial?” [¶] [Defendant:] Hell ya, just to put her in prison.”
2. “[Defendant:] If they let me pull my plea, I’m going to trial.... I’m doing it just to put her in prison.”
3. “[Defendant:] Her deal is part is part of my deal. If I pull my deal it pulls her plea. [¶] [Mother:] Well Eddie don’t do it just because of that.... [¶] [Defendant:] That’s why I’m doing it. [¶] [Mother:] That’s the only reason? [¶] [Defendant:] Yup.”
Finally, the prosecutor confronted defendant with the transcript of another jail conversation with his mother, in which, after he told her he was taking a deal for 12 years, she asked: “How much time will you have to do?” and he answered: “Ten years.”
The trial court denied defendant’s motion to withdraw his plea without stating reasons.
DISCUSSION
Defendant contends the court erred in denying his motion to withdraw the plea because trial counsel was ineffective. He bases this ineffective assistance claim on an allegation that at the time counsel advised him to accept the plea, counsel “had neither investigated, nor prepared, the case for trial.” The problem with defendant’s argument is that it was not made in the trial court, and he has therefore forfeited it (as an ineffective assistance of counsel claim) on appeal. (People v. Rudd (1998) 63 Cal.App.4th 620, 628-629.)
The arguments made in the trial court were: (1) defendant’s plea was involuntary because counsel was unprepared to go to trial due to the denial of the continuance motion; and (2) defendant’s plea was not knowing and intelligent because he did not read and understand the plea form and therefore relied on counsel’s erroneous advice about credits. We therefore address these two issues in the manner they were raised in the trial court, concluding the court did not err in denying the motion to withdraw defendant’s plea.
“A defendant may move to set aside a guilty plea for good cause at any time before the entry of judgment. (Pen. Code, § 1018....]) ‘Good cause’ means mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free judgment and must be shown by clear and convincing evidence. [Citation.] The grant or denial of such a withdrawal motion is ‘within the sound discretion of the trial court and must be upheld unless an abuse thereof is clearly demonstrated.’ [Citation].” (People v. Ravaux (2006) 142 Cal.App.4th 914, 917.)
As to defendant’s first challenge, that the plea was involuntary because counsel was unprepared to go to trial, the record belies defendant’s claim. Admittedly, the court did deny the continuance and defense counsel did say that “there [wa]s still a significant amount of investigation that need[ed] to be done into a number of witnesses.” However, counsel also said that since he had the case, he “ha[d] been doing everything [he] c[ould] possible to get ready for trial,” and the trial court told counsel it would consider a “hiatus” between the People’s case and defendant’s case to allow counsel “to meet with additional witnesses” and to “enable [him] to complete more of [his] investigation so that [he would] be prepared to begin [the] defense to the case.” The record therefore supports a finding that despite the lack of a continuance, counsel was prepared to go to trial and defendant’s plea was voluntary. (See People v. Fairbank (1997) 16 Cal.4th 1223, 1254 [“a reviewing court must adopt the trial court’s factual findings [on a motion to withdraw a plea] if substantial evidence supports them”].)
As to defendant’s second challenge, that his plea was not knowing and intelligent because of counsel’s faulty advice about credits, the record again belies his claim. Although defendant claimed that counsel misadvised him that he would have to serve only 50 percent of his time, the prosecutor impeached defendant’s self-serving testimony with a transcript of a jail conversation in which defendant told his mother he would have to serve 10 years of his 12-year sentence, which is approximately 83 percent of his sentence.
What the record does reflect is that defendant wanted to withdraw his plea, not because of an ill-prepared lawyer who gave him faulty advice, but rather because he wanted to get back at codefendant Fite (whom he believed had thwarted his visitation with their daughter) by undoing the package deal of pleas they accepted. The law does not allow defendant to withdraw his plea for this reason, and the trial court therefore did not err, constitutionally or otherwise, in denying defendant’s motion to withdraw his plea.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, Acting P. J., HULL, J.