Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. No. FSB047391. John N. Martin and Ronald M. Christianson, Judges.
Cindi B. Mishkin, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
Defendant pled guilty to grand theft (Pen. Code, § 487(a)), pronouncement of judgment was withheld and he was granted probation, as agreed to in his plea bargain.
Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record.
We offered the defendant an opportunity to file a personal supplemental brief, which has been read and considered.
During the taking of the plea, the parties stipulated that the trial court could consider the investigator’s report as the factual basis for the plea. That report is not part of the record before this court, however, there is a factual statement in the Probation Report, which serves as the basis for our statement of facts.
Between January 1, 2000, and July 31, 2004, Defendant operated a business that sought and was given grants in excess of $100,000 from the Cities of San Bernardino and Riverside and the County of San Bernardino for services the business did not provide. The business also fraudulently received more than $30,000 in property and services from a supermarket chain.
It had taken the prosecutor six months to locate the defendant to arrest him, therefore defendant was considered a flight risk and was denied an “own recognizance” release before he entered into his plea bargain.
At the time defendant entered his plea, he stated in writing and confirmed orally before the court that no agreements beyond those encompassed in the plea deal had been made, which included that he would be liable for restitution to the victims following a hearing on the matter. He also stated in writing and confirmed orally before the court that he had read and understood all the terms of his plea bargain, had had sufficient time to discuss them with his attorney and he agreed to them as part of his acceptance of probation.
Over three months after he had been granted probation, defendant’s retained attorney was relieved and the public defender was appointed to represent him as the matter of restitution was still pending. More than 16 months after probation had been granted, and on the same day his public defender submitted the amount of restitution based on the figures provided in the probation report, defendant moved to withdraw his plea. He asserted at the hearing on the motion that his retained attorney had told him at the time he entered his plea and was granted probation that, despite his insistence that he was not guilty, the only way to get out of jail then was to plead guilty. He claimed that his retained attorney’s plan was for defendant to abide by the terms of his probation, proving that he was no longer a flight risk, come into court before restitution was finalized and withdraw his plea, and he would then be released on his own recognizance pending trial. Defendant claimed he had not fully read his change of plea form and had initialed portions of it and signed it as he was directed by his retained attorney.
His retained attorney testified at the hearing on the motion to withdraw that defendant had understood everything that was on the change of plea form, and, although he had no specific recollection of the events surrounding defendant’s initialing and signing of the change of plea form, it was his habit and custom to go over such a document line by line with his client. Counsel also asserted that there had been enough time for him and defendant to discuss the plea bargain. He denied ever telling defendant that he could withdraw his plea after entering it. He said that if defendant had told him that he wanted to withdraw his plea, he would have explained to him the time limits for doing so.
The trial court denied to motion to withdraw, finding it untimely under Penal Code section 1018. It also found that defendant had failed to show good cause for waiting to withdraw his plea more than six months after probation was granted. The court noted that defendant made many appearances before the court, and on some occasions, in pro per, during that six-month period and had said nothing about withdrawing his plea. As to the merits of defendant’s motion, the trial court found that defendant had failed to establish by clear and convincing evidence any basis for the withdrawal of his plea. The court noted that defendant had stated in writing on the change of plea form, which he confirmed orally at the taking of the plea, that no other promises or agreements had been made to him concerning the plea, and until more than 16 months after he had been granted probation, he had never mentioned the plan to withdraw his plea.
That section provides in pertinent part, “On application of the defendant . . . within six months after an order granting probation is made if entry of judgment is suspended, the court may . . . for a good cause shown, permit the plea of guilty to be withdrawn[.]”
See People v. Wharton (1991) 53 Cal.3d 522, 585
A. Defendant’s Contentions.
In his page and a half personal supplemental brief, defendant reiterates the factual allegations he made unsuccessfully below that he was told by his retained attorney that he could plead guilty, abide by the terms of his probation until, as he states in his brief, some unspecified future date, then withdraw his plea and go to trial, having proved he was no longer a flight risk and therefore entitled to release on his own recognizance. He also asserts that he was not informed of Penal Code section 1018’s six month time limit until that period had elapsed. At the hearing on the motion, he had asserted that within that time period, he had informed two of his public defenders of his intention to withdraw his plea and neither had mentioned the time limit to him.
In finding that defendant failed to establish cause to withdraw his plea, the trial court implicitly found that there had been no representation by his retained attorney that he could withdraw that plea until restitution was finalized or any other unspecified future date. We review the trial court’s denial of the motion under an abuse of discretion standard. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) We must accept the trial court’s factual findings if substantial evidence supports them. (Ibid.) The trial court’s factual findings here are supported by substantial evidence. There was no abuse of discretion.
We have now concluded our independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, J., McKINSTER, J.