Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF07480
SCOTLAND, P. J.
In April 2007, defendant Kelly Charles Jeffers grabbed his girlfriend, Jenney O’Neal (Jenney), by the throat and pulled their infant son from her arms. After recovering possession of the child, Jenney took him to the bedroom and sat down on the bed. Defendant followed, grabbing Jenney by the hair and pulling her to the floor. Defendant held her on the ground and threatened that she would never see her son again. He was arrested and charged with misdemeanor battery. Jenney bailed him out of jail after he promised to never hurt her again. However, when defendant returned home, he threatened to kill her. The threat prompted Jenney to move out. Defendant was ultimately convicted of misdemeanor battery and placed on probation with conditions including a restraining order prohibiting him from contacting Jenney.
Between May and July of 2007, defendant relentlessly called and e-mailed Jenney in violation of the restraining order. During one phone call, he threatened to take their son away from her. During another call, he told her a restraining order was just a piece of paper that would not stop him from calling her. An investigation revealed that during the first two weeks of May, defendant made over 100 phone calls to phone numbers where Jenney could be reached. From June 29 to July 18, he sent Jenney 166 text messages.
On July 20, 2007, defendant confronted Jenney at a Yuba County courthouse. Jenney and her 10-year-old son, Dempsey, left the courthouse and walked to Jenney’s parked vehicle, where she put a briefcase in the back seat and got into the driver’s seat. Dempsey got into the passenger seat. As Jenney put the keys in the ignition, defendant opened the driver’s side rear passenger door, got into the vehicle, and grabbed her by the throat. Punching her in the head and face with a closed fist, he stated: “I loved you, but I’m going to kill you.” Jenney told Dempsey to run. Dempsey yelled for help, then tried to pull defendant off of Jenney. Defendant punched Dempsey in the face with a closed fist, and told Jenney: “You better drive or I’ll shoot you and your son.” According to Jenney, she passed out at this point. When she regained consciousness, defendant was gone. The briefcase, containing court documents, a gold wedding ring, $800 in cash, and a bottle of methadone, was missing.
Defendant entered negotiated pleas of no contest to inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (e)(2), further section references are to the Penal Code unless otherwise specified), stalking (§ 646.9, subd. (a)), intentionally inflicting great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)), and having previously served three separate prison terms (§ 667.5, subd. (b)).
In exchange, the People agreed that they would dismiss other charges and enhancements in this case; reduce to a misdemeanor a related case brought against one of defendant’s friends; have the Sutter County District Attorney dismiss pending charges of rape and infliction of corporal injury on a cohabitant, brought against defendant in Sutter County; and that defendant would face a maximum possible prison term of 12 years and eight months in state prison. The People further agreed to ask Sutter County to not pursue charges against defendant’s mother for harboring a fugitive.
Following defendant’s unsuccessful motion to withdraw his plea, the trial court sentenced him to 12 years and eight months in state prison and imposed other orders.
Defendant appeals, having obtained a certificate of probable cause (§ 1237.5). He contends the trial court abused its discretion in denying his motion to withdraw his no contest pleas. We disagree and shall affirm the judgment.
BACKGROUND
Prior to accepting defendant’s no contest pleas, the trial court asked defendant if he understood and waived his rights to a jury trial, to have the People’s witnesses testify under oath, to confront those witnesses, and to bring in witnesses and evidence of his own. Defendant said he understood and waived those rights. The court also explained to defendant that he had the right to remain silent and that by pleading no contest he was proving each of the charges to be true. Defendant stated he understood and waived his right to remain silent. The court then explained that probation would not be granted unless the court found this was an unusual case finding, and told defendant the “odds are you are going to go to prison.” When asked if he understood, defendant responded: “Yes, Your Honor, I do.”
The court told defendant that his maximum exposure under the plea agreement was 12 years and eight months in state prison; if he were to convince the court to grant probation, the term of probation could be as long as five years; if he were sentenced to state prison, he could be released on parole for a term as long as three years; the present prison term would add an additional year to any future prison sentence; he would have to provide blood and saliva samples and fingerprint impressions for the DNA Data Bank; he would be required to pay restitution and parole revocation fines; he would have to pay victim restitution; the present conviction would add an additional year to any future conviction for spousal or cohabitant abuse; as a convicted felon, he would no longer be able to possess firearms or ammunition; and if he were not a citizen of the United States, his conviction would require that he be deported. Defendant stated he understood each of those admonitions.
The court asked defendant: “Do you believe you’ve had adequate time to discuss this case, including any defense you think you may have, with -- I’m going to say your attorneys because I know you’ve been conferring with Mr. Zamora and Mr. Davis. Have you had enough time to talk with them?” Defendant responded: “Yes, Your Honor, I have.” The court then asked defendant if he was satisfied with the services of his attorneys. Defendant responded: “Yes, Your Honor, I am. They’ve been real good.” The court went through the plea agreement with defendant and asked whether he was promised anything else or whether anybody had threatened defendant in order to make him take the deal. To both of those questions, defendant responded: “No, Your Honor.” With that, the court took defendant’s pleas of no contest, the parties stipulated to a factual basis for the pleas, and the court found there was a “knowing, intelligent waiver of the defendant’s rights.”
Defendant later moved to withdraw his no contest pleas, claiming they were not “knowing, intelligent or voluntary” because “relevant and exculpatory” information was withheld from him prior to entry of the pleas. Specifically, he asserted that, when the pleas were entered, he was unaware of “highly inappropriate contact” between Jenney and the triage nurse who evaluated her following the attack.
According to defendant, the great bodily injury enhancement was based solely on Jenney’s claim that she lost consciousness during the attack. The medical records indicated to the contrary. Prior to entry of the pleas, defendant was made aware of the discrepancy between the medical records and Jenney’s version of events. However, according to a report prepared by Mary Ann Barr of the Yuba County District Attorney’s Office, Jenney called the triage nurse and asked if the medical records could be altered to indicate that Jenney had lost consciousness: “Jenney told [the nurse] that she did not want her to perjure herself, but Jenney believed she had told [the nurse] that she lost consciousness. [The nurse] told Jenney she would check the medical records, but whatever [the nurse] had put on the med[ical] records was what she had been told.” The records were not altered. Defendant was not informed of this conversation between Jenney and the nurse prior to entry of his plea.
As defendant explained in his moving papers: “[D]efense counsel was not informed that [Jenney] . . . had approached the triage nurse who evaluated [her] at the time of the incident and pressured the nurse into misrepresenting the medical records in this case. . . . [Defendant] contends that this was a critical piece of information that was highly probative of the complaining witness[’]s credibility in this case.” While defendant was aware of the discrepancy between the medical records and Jenney’s claim of loss of consciousness, his attorney advised him to take the deal because “without additional evidence to contradict the witness’ claim of loss of consciousness, it would be very difficult to disprove the statement at time of trial.” According to defendant’s attorney, had he known about the conversation between Jenney and the nurse, he would not have recommended the plea of no contest to the great bodily injury enhancement.
The trial court denied the motion to withdraw the no contest pleas. The court was not impressed by the claimed impeachment value of the conversation between Jenney and the nurse: “The best it would have been, ‘ . . . did you get a call from Jenn[e]y?’ ‘Yes, I did.’ ‘What did she ask you?’ ‘If I could change the medical records showing that she had in fact lost consciousness. “But I don’t want you to perjure yourself. Don’t do anything wrong. Can you do that?” No, I can’t.’ [¶] The medical records stand for themselves. Period. And then Jenn[e]y gets on and, ‘Did you call?’ ‘Yeah, I did.’ ‘Why?’ ‘Because I have lupus. It’s important to me, even more important in this case, they be accurate. I think I lost consciousness. I think I told them I was trying to correct it.’ To the extent impeachment evidence, it is so de minimis, of so little value. Having reread several times the transcript of [defendant’s] entry of plea on November 5th, he knew what he was doing. It was a knowing, intelligent waiver knowing the exact consequences. Motion to withdraw plea is denied.”
It was apparently adduced during the preliminary examination that Jenney suffers from lupus. In opposition to defendant’s motion, the People argued that because of the lupus, “it is imperative that [Jenney’s] medical records be as accurate as possible,” and that this was the reason for the conversation between Jenney and the nurse.
DISCUSSION
Defendant contends the trial court abused its discretion in denying his motion to withdraw his no contest pleas.
Section 1018 authorizes a trial court, for “good cause shown,” to allow a plea of no contest to be withdrawn “and a plea of not guilty substituted.”
“Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a [no contest] plea. [Citations.] But good cause must be shown by clear and convincing evidence. [Citations.]” (People v. Cruz (1974) 12 Cal.3d 562, 566; see also People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) “‘Clear and convincing’ evidence requires a finding of high probability. This standard [requires] . . . that the evidence be ‘“so clear as to leave no substantial doubt”; “sufficiently strong to command the unhesitating assent of every reasonable mind.”’ [Citation.]” (In re Angelia P. (1981) 28 Cal.3d 908, 919-920; In re Michael G. (1998) 63 Cal.App.4th 700, 709-710, fn. 6.) Moreover, a plea “resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.” (People v. Hunt (1985) 174 Cal.App.3d 95, 103; People v. Urfer (1979) 94 Cal.App.3d 887, 893.)
“A decision to deny a motion to withdraw a [no contest] plea ‘“rests in the sound discretion of the trial court”’ and is final unless the defendant can show a clear abuse of that discretion. [Citations.]” (People v. Fairbank (1997) 16 Cal.4th 1223, 1254; People v. Rivera (1987) 196 Cal.App.3d 924, 926-927 [“withdrawal of a plea of nolo contendere, like the withdrawal of a guilty plea, is within the sound discretion of the trial court”].) The trial court’s exercise of discretion can be reversed only if that court’s “determination is arbitrary or capricious or ‘“exceeds the bounds of reason, all of the circumstances being considered.”’ [Citations.]” (People v. Welch (1993) 5 Cal.4th 228, 234.)
Defendant asserts he entered his no contest pleas based on the mistaken belief he did not have a “viable defense to the great bodily injury allegation.” In reality, defendant was keenly aware he had a potential defense to that allegation. According to the declaration of his trial counsel in support of the motion to withdraw the pleas, defendant was informed prior to entering his plea that the medical records did not support Jenney’s claim of loss of consciousness. Thus, defendant knew he would have been able to impeach Jenney with those records. Consequently, he did not enter his plea under the mistaken belief that he did not have a defense. Rather, his claim of “mistake” involves an overestimation of the weight of Jenney’s testimony, i.e., ignorance of the fact that he would have also been able to impeach Jenney with her conversation with the nurse.
Defendant’s argument is a variation on an argument rejected in People v. Watts (1977) 67 Cal.App.3d 173 (hereafter Watts). Watts claimed “he should have been permitted to withdraw his guilty plea inasmuch as he was operating under a mistake of fact at the time he entered into the bargain.” (Id. at p. 183.) His “mistake” was the erroneous assumption one of his codefendants, Donald Fontaine, would implicate defendant if the case went to trial. (Id. at pp. 177, 183.) However, at the trial of another codefendant, Fontaine did not do so. The Court of Appeal concluded that Watts’s “mistake” was he “overestimated the strength of the state’s case against him, and had assumed that his codefendant Fontaine would implicate him if the case went to trial. . . . This is hardly the type of mistake, ignorance or inadvertence which would permit the withdrawal of a guilty plea.” (Id. at p. 183.)
Here, defendant assumed that Jenney’s testimony about her loss of consciousness would carry more weight with a jury than would the medical records indicating she did not lose consciousness. As in Watts, this is not the type of mistake that would justify the withdrawal of a no contest plea. Defendant fails to show how his “mistake” in evaluating the strength of Jenney’s testimony overcame the free exercise of his judgment in deciding to enter the no contest pleas. Defendant knew he had a defense to the great bodily injury allegation and had medical records to impeach Jenney’s testimony at trial; his “mistake” was merely that he was unaware of an additional piece of impeachment evidence that might have made her testimony less believable.
Defendant’s reliance on People v. Ramirez (2006) 141 Cal.App.4th 1501 (hereafter Ramirez) and People v. Dena (1972) 25 Cal.App.3d 1001 (hereafter Dena) is misplaced.
Unlike Ramirez and Dena, where the People withheld exculpatory evidence that effectively deprived those defendants of the right to assert a defense (Ramirez, supra, 141 Cal.App.4th at pp. 1507-1508; Dena, supra, 25 Cal.App.3d at pp. 1006-1008, 1009, 1013), defendant knew he had a defense to the great bodily injury allegation and had the medical records to support the defense by impeaching Jenney’s claim of loss of consciousness. His “mistake” was an erroneous estimation of the weight the jury would attach to Jenney’s testimony. This mistake, like the mistake in Watts, goes to the strength of the People’s case against him and is not the “type of mistake, ignorance or inadvertence which would permit the withdrawal of a guilty plea.” (Watts, supra, 67 Cal.App.3d at p. 183.)
Thus, the court did not err in denying defendant’s motion to withdraw his pleas. (People v. Hunt, supra, 174 Cal.App.3d at p. 103 [“‘Often the decision to plead guilty is heavily influenced by the defendant’s appraisal of the prosecution’s case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. Considerations like these frequently present imponderable questions for which there are no certain answers; judgments may be made that in the light of later events seem improvident, although they were perfectly sensible at the time. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering his decision’”].)
DISPOSITION
The judgment is affirmed.
We concur: HULL, J., BUTZ, J.