Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV701626, Ingrid Adamson Uhler and Douglas M. Elwell, Judges.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
Defendant, Rogelio Rodriguez Herrera, pled guilty to voluntary manslaughter (count 3—Pen. Code § 192, subd. (a)) and two counts of corporal injury to a cohabitant (counts 4 & 5—§ 273.5) with corresponding great bodily injury enhancements (§ 12022.7, subd. (a)). Thereafter, defendant filed a motion to withdraw his plea, which the court denied. On appeal, defendant contends the court erred in denying his motion to withdraw the plea. We disagree and, therefore, affirm the judgment in full.
All further statutory references will be to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
The victim died after a confessed domestic violence incident with defendant. The People filed a first amended information charging defendant with murder (count 1—§§ 187, subd. (a), 189) and forcible rape (count 2—§ 261, subd. (a)(2)). On January 10, 2008, the People orally amended the information to interlineate counts 3 through 5 to which defendant pled guilty, and corresponding great bodily injury enhancements attached to counts 4 and 5, which defendant admitted. In return, counts 1 and 2 were to be dismissed and defendant would be sentenced to the negotiated, determinate term of 15 years incarceration.
Defendant wrote a letter dated January 16, 2008, in Spanish, in which he evidently maintained that he was pressured into pleading guilty by his attorney when he was, in fact, not guilty. The court relieved defense counsel and appointed conflict counsel in order to prepare a motion to withdraw the plea.
On February 20, 2008, conflict counsel filed a motion to withdraw the plea in which he contended that defendant “was confused about the nature and consequences of his plea,” that he “felt pressured into taking the plea bargain,” that “the strike implications [of the plea] were not fully explored with him,” and that “[h]e felt rushed into taking the deal.” A signed declaration on behalf of defendant precisely mirroring the contentions contained in the motion was lodged at the hearing on the motion. The People filed opposition to the motion contending that the court had explained the strike consequences inherent in defendant’s plea even though it was not required to do so.
At the hearing on the motion, defense counsel argued that defendant “just honestly feels that in particular the strike implications were not adequately explained to him. He wishes his counsel would have spent more time with him exploring the potential defenses. He feels he was very rushed into taking the plea and that because of the nature of the charges and the familial involvement it placed incredible pressure upon him. [¶] He did not wish to enter that plea although I do see it was for a determinate sentence, and I understand that perhaps counsel for the defense may have advised him that it was appropriate.” The court noted that the judge taking the plea had explained the strike implications. Likewise, the court observed that the judge had asked defendant if he had had sufficient time to go over the plea including, specifically, the consequences of the plea; to which defendant had replied, “‘Yes.’” Thus, the court denied the motion and sentenced defendant in accordance with his plea.
DISCUSSION
Defendant’s sole contention on appeal is that the trial court erred in denying his motion to withdraw his guilty plea. Defendant essentially enumerates three bases for overturning the trial court’s decision: (1) the trial court’s admonishment regarding the strike consequences of his plea was an incorrect statement of law that involuntarily induced him to enter the plea; (2) defendant had insufficient time in which to contemplate the ramifications of his plea; and (3) defendant’s plea was entered involuntarily due to pressure applied on defendant by the victim’s family. We shall address each contention in turn after a general statement of the law applicable to all three arguments.
“A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. [Citations.] ‘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.” 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.]
“‘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.]’ [Citation.] ‘Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.’ [Citation.]” (People v. Weaver (2004) 118 Cal.App.4th 131, 145-146.)
“Abuse of discretion is established if, considering all of the circumstances before it, the trial court exceeded the bounds of reason. [Citation.] Of course, ‘[t]he scope of discretion always resides in the particular law being applied; action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an abuse of discretion.’ [Citations.]” (People v. Parmar (2001) 86 Cal.App.4th 781, 792-793.)
A. Defendant’s plea was not induced by the trial court’s admonishment to defendant regarding the strike consequences of that plea.
Prior to the taking of defendant’s plea, the court engaged in the following colloquy with defendant:
“THE COURT: Also, these are all strikes to my knowledge, so obviously in terms of pleading guilty to the charges . . . they are called strikes. [¶] Do you understand that?
“THE DEFENDANT: No. A strike?
“THE COURT: Yes. You are going to be—in regards to the nature of the charges—I will look it up for you, but my understanding is with the violation of the [section 273.5, subdivision (a), charge] with the [section 12022.7 enhancements] as well as the voluntary manslaughter, you are going to be considered a third-striker. What that means is upon your release from state prison, if you violate any laws that are equivalent to a felony and you are convicted of that felony, you could receive a life sentence with a 25-year minimum. [¶] Do you understand that?
“THE DEFENDANT: So I’m going to get out with three strikes?
“THE COURT: Yes. . . . [¶] . . . [¶] So I’m just informing you of that consequence of your plea. [¶] Do you understand that?
“THE DEFENDANT: Yes.” (Italics added.)
Defendant seizes on the above italicized language for the proposition that defendant’s guilty plea was “based” on and “induced” by the court’s misrepresentation that he could only receive a third-strike sentence for subsequent criminal convictions incurred based on offenses committed after he was released from prison. Since defendant could, in fact, face a third-strike sentence for convictions incurred based on offenses committed while incarcerated, he maintains the court’s denial of his motion to withdraw the plea violated defendant’s federal constitutional due process rights to enter a voluntary plea. We disagree.
Before taking a guilty plea, the trial court must admonish, and counsel must advise, the defendant of both the constitutional rights that are being waived and the direct consequences of the plea. (Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122; In re Moser (1993) 6 Cal.4th 342, 351; People v. Walker (1991) 54 Cal.3d 1013, 1020; Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605.) “Unlike the admonition of constitutional rights, however, advisement as to the consequences of a plea is not constitutionally mandated. Rather, the rule compelling such advisement is ‘a judicially declared rule of criminal procedure.’ [Citation.]” (Walker, at p. 1022, quoting People v. Wright (1987) 43 Cal.3d 487, 495.) However, the required admonition regarding the direct consequences of a plea applies only “to the primary and direct consequences involved in the criminal case itself and not to secondary, indirect or collateral consequences. [Citations.] A collateral consequence is one which does not ‘inexorably follow’ from a conviction of the offense involved in the plea. [Citation.]” (People v. Crosby (1992) 3 Cal.App.4th 1352, 1354-1355.) “[T]he possibility of increased punishment in the event of a subsequent conviction is a collateral consequence. [Citations.]” (Ibid.) “‘Where a defendant’s plea is “induced by misrepresentations of a fundamental nature” such as a bargain which is beyond the power of the trial court, a judgment based upon the plea must be reversed. [Citations.]’ [Citation.]” (People v. Hollins (1993) 15 Cal.App.4th 567, 574, quoting People v. Coleman (1977) 72 Cal.App.3d 287, 292.)
Here, as defendant admits, the court was neither constitutionally nor statutorily required to advise defendant regarding the strike consequences of his plea. Nevertheless, defendant contends that because the court did advise him of those consequences, but did so incorrectly, the admonishment resulted in defendant’s entry of an involuntary plea.
A review of the record clearly indicates that defendant’s plea was neither based on nor induced by the court’s misstatement regarding the strike consequences of his plea. Rather, defendant was induced to enter the plea by the 15-year determinate sentence offered by the People. Earlier that morning, defendant rejected a plea offer which would have resulted in a determinate sentence of 16 years 4 months. Prior to the court’s admonishments to defendant regarding his constitutional rights and the consequences of entering his plea, defendant had already signed and initialed the plea agreement. That agreement provided that defendant would enter a guilty plea to the proposed, additional counts 3 through 5 in return for dismissal of counts 1 and 2 and a 15-year determinate sentence. Indeed, defendant initialed the box next to the provision providing that “I am freely and voluntarily entering the plea(s) of guilty/nolo contendre [and admission(s)] as indicated: [¶] . . . [¶] As a result of plea bargaining after discussing with my attorney the possibility of my being convicted on other or more serious charges and/or risking the possibility of a longer sentence, and/or [] [b]ecause the . . . district attorney . . . has agreed to: [¶] 15 yrs. State prison[.]”
Likewise, defendant initialed the provision of the agreement providing that his attorney had already explained the possible consequences of his plea with regard to increased punishment for future convictions. Defense counsel signed the agreement declaring that he had personally read and explained the contents of the agreement to defendant. At the time defendant entered his plea, the court asked him if defense counsel had gone over the agreement with him, if he understood everything on it, and if he had personally signed and initialed the form. Defendant replied in the affirmative. Thus, defendant’s plea was induced by the bargained-for sentence rather than any alleged promise by the court that he could not be sentenced for a third-strike offense committed while incarcerated.
B. Defendant had sufficient time to deliberate upon the plea agreement.
Defendant further maintains that his plea was entered involuntarily because he felt rushed into entering the plea. Defendant cites and exposit People v. McGarvey (1943) 61 Cal.App.2d 557 (McGarvey), in support of his contention that the denial of his motion to withdraw the plea must be reversed because he did not have sufficient time to consult with his attorney regarding the plea agreement. We find McGarvey factually distinguishable from the instant case. In McGarvey, the defendant was arrested on one day, arraigned the next day, and entered a guilty plea the following day. (Id. at p. 558.) Two days later the defendant filed a motion to withdraw the plea asserting that he had requested to speak with his family prior to entering the plea, but had been refused; that he had insufficient time to discuss the case with his attorney; and that his family had previously hired an attorney who was refused permission to speak with him until after he had entered his plea. (Id. at p. 559.) The appellate court noted that the defendant was only able to discuss the case with an attorney for 20 to 30 minutes prior to entering his plea; the attorney was not appointed to represent the defendant, but rather, was only asked to speak with the defendant by the prosecutor; and the defendant had only an eighth-grade education. (Id. at pp. 560-562.) The appellate court concluded that “there was undue haste in the entire disposition of the case[,]” and, therefore, reversed the denial of defendant’s motion to withdraw the plea. (Id. at pp. 561, 565.) The court noted, “[w]e do not point to any one circumstance in this case and say that because of it defendant is entitled to withdraw his plea; but, considering all of the facts, it seems to this court that the ends of justice demand it.” (Id. at p. 563-564.)
Here, the People filed the complaint against defendant on July 17, 2007, the preliminary hearing was held on October 10, 2007, the information was filed on October 11, 2007, the first amended information was filed on November 21, 2007, and defendant entered his plea on January 10, 2008. Defendant was represented by the same, appointed defense counsel at all but one of the 14 appearances occurring between the filing of the complaint and the taking of his plea. 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].)
Moreover, it is apparent defendant had sufficient time to contemplate the ramifications of this particular plea agreement on the day in question. Defendant rejected an offer earlier that day that he plead guilty to various charges in return for a determinate sentence of 16 years 4 months. Though we do not know from the record how long defendant had to discuss the eventual plea agreement with his counsel, we do know that the court recessed the matter shortly after first calling it at 10:00 a.m. The court did not recall the case for the entry of defendant’s plea until 3:00 p.m. that day. Defendant had already initialed the box on his plea agreement providing that he had sufficient time to consult with his attorney regarding his intent to enter a guilty plea, that his lawyer had explained everything in the agreement to him, and that he had sufficient time to consider the meaning of each statement therein. Defense counsel signed the agreement averring that he had personally read and explained the contents of the agreement to defendant and concurred in the plea. Prior to taking defendant’s plea, the court asked defendant if he had sufficient time to discuss the case with his attorney “in regards to the nature of the charges, the consequences of your pleas and any possible defenses that you might have?” Defendant replied that he had. Defendant agreed that his counsel went over the plea agreement with him. When asked if he had any questions regarding the agreement or otherwise, defendant replied that he did not. Thus, defendant had more than sufficient time to deliberate upon the entry of his plea.
C. Insufficient evidence supports defendant’s contention he was pressured into entering the plea.
Finally, defendant contends that his free will was overcome and his plea, therefore, was involuntarily entered due to pressure exerted upon him by the victim’s family. First, the trial court was well within its discretion to the extent that it determined that defendant’s self-serving statement in his declaration that he felt some undesignated “pressure” to enter the plea was simply not credible. (People v. Barnes (1986) 42 Cal.3d 284, 303 [“‘“It is the exclusive province of the trial court to determine the credibility of a witness and the truth and falsity of the facts upon which a determination depends[.]”’”].) Second, defense counsel’s argument that the “pressure” was familial was not in evidence. (People v. Clark (1993) 5 Cal.4th 950, 1033, disapproved of on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [statements made by attorneys during argument are not evidence].) Defendant’s declaration never identified the source of the “pressure” and counsel failed to offer defendant’s testimony at the hearing on the motion. Thus, there certainly was no evidence to support appellate counsel’s supposition that the pressure derived from the victim’s family. Third, defendant’s vague allusion to “pressure” simply does not amount to sufficient evidence that his plea was entered into involuntarily.
Defendant’s citation to People v. Sandoval (2006) 140 Cal.App.4th 111, is particularly instructive. There, the trial court found that the defendant had pled guilty immediately after having been threatened with physical violence by a codefendant. (Id. at p. 126.) Nonetheless, it denied his motion to withdraw the plea. (Ibid.) In determining that the trial court had abused its discretion in denying the defendant’s motion, the appellate court noted, in addition to the threat of violence, that the trial court also pressured the defendant to take the plea. (Id. at pp. 126-127.)
Here, there is no evidence that a threat of violence was ever made against defendant. Indeed, the nature of the pressure was never explained below. Defendant was apparently in custody during the entirety of the proceedings. No evidence was adduced that any member of the victim’s family was in custody with defendant and, thus, able to threaten him. Moreover, far from pressuring defendant, the court that took defendant’s plea spent sufficient time with defendant to ensure it was entered voluntarily. Defendant had already initialed the provision in his plea agreement providing that “[n]o one has used any force or violence or threats or menace or duress or undue influence of any kind on me or anyone dear to me to get me to [enter the plea].” The court asked defendant if he had “been threatened or [have] any close friends or relatives been threatened in order to get you to change your mind and plead guilty to these charges today, sir?” Defendant replied, “No.” The court asked if defendant was “pleading freely and voluntarily and also because it’s in your best interest to do so; is that correct?” Defendant responded that he was. Thus, the court acted well within its discretion in denying defendant’s motion to withdraw the plea.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P. J., McKINSTER, J.