Opinion
2d Crim. B328009 B328124
11-21-2024
THE PEOPLE, Plaintiff and Respondent, v. SAMANTHA GUERRERO, Defendant and Appellant.
Jacquelyn H. Duffy, Judge Superior Court County of San Luis Obispo Susan Wolk, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Christopher G. Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
(Super. Ct. Nos. 22F-06786, 20F-03811) (San Luis Obispo County)
Jacquelyn H. Duffy, Judge Superior Court County of San Luis Obispo Susan Wolk, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Christopher G. Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
GILBERT, P. J.
Samantha Guerrero appeals an order of probation granted after denial of a motion to withdraw her plea pursuant to Penal Code section 1018. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL HISTORY
On May 14, 2020, Guerrero brought her two-year-old child to the hospital. The child tested positive for methamphetamine but Guerrero denied having narcotics at her home. Law enforcement officers searched Guerrero's home and found pipes with methamphetamine and cannabis residue, syringes, and drug paraphernalia, all accessible to the child. The child was taken into protective custody. The prosecutor charged Guerrero with misdemeanor child abuse in violation of section 273a, subdivision (a). (Super. Ct. San Luis Obispo County, No. 20F-03811.)
On September 24, 2021, the trial court placed Guerrero on one-year judicial diversion over the prosecutor's objection. The court did so in part because Guerrero was successfully participating in family reunification services provided by the Department of Social Services.
On October 12, 2022, Guerrero was arrested for bringing drugs and paraphernalia into jail, misdemeanor drug possession, and misdemeanor being under the influence of drugs. (§ 4573; Health &Saf. Code, §§ 11350, subd. (a), 11550, subd. (a); Super. Ct. San Luis Obispo County, No. 22F-06786.)
On October 13, 2022, Guerrero entered a nolo contendere plea to bringing contraband into jail (No. 22F-06786) and misdemeanor child abuse (No. 20F-03811). Prior to entering her plea, Guerrero executed a written waiver of her rights and the trial court orally advised her of her rights. In response to questions, Guerrero agreed that she "had enough time to talk to [her] lawyer" and was "able to tell her everything that [she] felt was important and get whatever information [she needed] to make an intelligent decision in this case."
As part of the plea agreement, the trial court dismissed the remaining charges on the prosecutor's motion. The court also terminated the judicial diversion.
During the plea colloquy, defense counsel stated that Guerrero was sitting down because her back hurt. The trial court acknowledged the situation and continued the plea colloquy. The court then confirmed on the record that Guerrero understood her rights and the consequences of her plea. The court found that Guerrero freely and voluntarily entered her plea. The court ordered the probation department to prepare a presentence report and set sentencing for a later date.
On November 7, 2022, the probation officer interviewed Guerrero. The probation officer summarized that Guerrero indicated that "she only agreed to the plea deal as she was coming down off fentanyl and did not want to remain in custody due to fear of withdrawal."
On December 9 and 15, 2022, Guerrero filed motions to withdraw her pleas pursuant to section 1018. In support of her motions, Guerrero's counsel declared that Guerrero was not "in her right mind" as she was "coming down off of fentanyl" during the plea hearing. The prosecutor opposed the motions.
On February 7, 2023, the trial court held a hearing concerning the plea withdrawal. Guerrero testified that she had been in custody for five days prior to the nolo contendere plea hearing and was experiencing fentanyl withdrawal symptoms. She explained that was the reason she could not stand in court. Guerrero stated that she did not understand the full consequences of her plea, including the inclusion of the misdemeanor child abuse charge. She added that she had wanted "to get out of [custody] as quickly as possible. . . . [She] mean[s] so that [she] could use Fentanyl and stop withdrawing." Guerrero stated that she informed her attorney, Carrie Winters, that she was withdrawing from drugs. Guerrero testified that she did not pay attention or listen to most of the court's advisements regarding her rights.
Carrie Winters testified that she determines if a client has any substance abuse or mental health issues that would prevent them from entering a plea agreement. She did not recall the content of her two meetings with Guerrero. Winters stated that Guerrero was doubled over in pain during one meeting prior to the plea colloquy and had stated that she was willing to plead to any charge to be released from custody.
The trial court denied Guerrero's motion to withdraw her plea. The court stated that Guerrero had been advised of her rights and the transcript of the plea reflected that Guerrero understood her rights and responded appropriately to the court's questions. Based upon the totality of circumstances, the court determined that Guerrero did not present clear and convincing evidence that she did not enter into the plea agreement freely or voluntarily.
On April 11, 2023, the trial court suspended imposition of sentence and granted Guerrero supervised formal probation, with credit for time served. The court granted Guerrero's request for a certificate of probable cause to challenge the denial of her pleawithdrawal motion. In requesting the certificate, Guerrero alleged that during the entry of her pleas, she was "dealing with the side effects of drug addiction."
Guerrero appeals and contends that: 1) the trial court abused its discretion by denying her motion to withdraw her plea, and 2) she received the ineffective assistance of counsel.
DISCUSSION
I.
Guerrero asserts that she introduced clear and convincing evidence to support her motion, pointing out that she sat during the plea colloquy, there were no questions regarding drug withdrawal or medical duress, she has a longtime drug addiction, and she interrupted the court three times during the plea colloquy to hurry the proceedings. She adds that she was not aware that her plea would result in the loss of custody of her child. Guerrero asserts that the trial court's exercise of discretion should favor granting the motion. (People v. Patterson (2017) 2 Cal.5th 885, 894.)
Section 1018 provides in part: "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." A nolo contendere plea is treated like a guilty plea for this purpose. (§ 1016, subd. 3; People v. Rivera (1987) 196 Cal.App.3d 924, 926-927.) "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. (People v. Dillard (2017) 8 Cal.App.5th 657, 665.) A guilty plea may not be withdrawn simply because a defendant has changed his mind. (Ibid.)
In considering a motion to withdraw a plea, the trial court may take into account the defendant's credibility and his interest in the outcome of the proceedings. (People v. Dillard, supra, 8 Cal.App.5th 657, 665.) We defer to the trial court's credibility determinations that are supported by substantial evidence. (Ibid.) We review the denial of a motion to withdraw a plea for an abuse of discretion. (Ibid.)" 'An appellate court will not disturb the denial of a [plea withdrawal] motion unless the abuse is clearly demonstrated.'" (People v. Wharton (1991) 53 Cal.3d 522, 585.)
The trial court did not abuse its discretion because its decision was not arbitrary, capricious, or unreasonable. The plea colloquy reflects that Guerrero paid attention to the court's advisements and the consequences of her plea. Guerrero's answers were appropriate responses to the court's questions. The court made a finding that Guerrero entered her plea freely and voluntarily ("the plea is freely and voluntarily made with full knowledge and understanding of, and appreciation of, the nature and consequences of the plea").
Winters testified that she generally reviewed written waivers with clients although she did not specifically recall doing so with Guerrero. The written waiver of rights form that Guerrero executed contained an attorney's declaration in which Winters stated that she reviewed the form with Guerrero, explained each of Guerrero's rights to her, and answered all her questions with regard to the plea.
Winters explained to the trial court that Guerrero was sitting during the plea colloquy due to back pain. The court stated that Guerrero had permission to sit and continued with the plea colloquy. There is no reference in the plea colloquy to Guerrero being doubled over in pain during the proceedings.
Guerrero did not present clear and convincing evidence to support her withdrawal motion.
II.
Guerrero argues that she received ineffective assistance of counsel from Winters, her plea attorney, as well as Harold Mesick, her attorney during the withdrawal of plea hearing. She contends that Winters did not advise her that she may lose custody of her child due to her plea, and that Mesick failed to raise an argument regarding the child custody.
The record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. (People v. Wilson (1992) 3 Cal.4th 926, 936.) As such, we reject Guerrero's claims. (Ibid.) In particular, the record does not indicate whether or how Winters advised Guerrero regarding her child custody matter and her nolo contendere plea. A defendant's claim that she would not have pled guilty if given competent advice must be corroborated independently by objective evidence. (In re Tellez (2022) 84 Cal.App.5th 292, 304 [affidavit or testimony by trial counsel, or counsel's files, notes, or correspondence, may support defendant's claim].) Moreover, Mesick may have determined as a tactical matter that fentanyl withdrawal was a better argument than child custody, given that the fentanyl argument was the only argument raised in the written motion. (People v. Johnsen (2021) 10 Cal.5th 1116, 1165 [where tactical or strategic reasons for challenged decisions do not appear in the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions].)
DISPOSITION
The probation order is affirmed.
YEGAN, J. CODY, J.