Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Ct. No. F04600521-9 Gary R. Orozco, Judge.
Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Catherine G. Tennant and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J. and Hill, J.
INTRODUCTION
Appellant Jesus Venegas Leon contends the trial court abused its discretion when it refused to permit him to withdraw his plea of guilty.
FACTUAL AND PROCEDURAL SUMMARY
On August 26, 2004, pursuant to a plea bargain, Leon pled no contest to first degree residential burglary. In exchange for the plea, a charge of assault by means likely to produce great bodily injury was dismissed and sentencing was delayed for one year, after which, if certain conditions were satisfied, the burglary charge would be reduced to a misdemeanor or dismissed. Leon was represented by counsel before and at the time he agreed to the plea bargain. Leon initialed and signed a felony advisement, waiver of rights, and plea form.
On November 10, 2004, Leon was arrested for petty theft with a prior. On March 30, 2005, the trial court found Leon incompetent to stand trial and suspended proceedings. On January 23, 2006, Leon was found restored to competency and criminal proceedings were reinstated.
During the arraignment on the petty theft with a prior matter, Leon asked to withdraw his plea in the first degree burglary case. The trial court appointed counsel to consult with Leon regarding the withdrawal of plea. On August 14, 2006, the trial court denied Leon’s motion to withdraw his plea.
On October 24, 2006, Leon was sentenced to a term of two years in prison on residential burglary, credited with 1,130 days, and released on parole as of October 24, 2006. Leon’s request for a certificate of probable cause was granted and he timely appealed.
DISCUSSION
Leon was represented by counsel when he entered the plea, and he received the required advisements before entry of the plea.
When a defendant is represented by counsel at the time of entry of the plea, the decision whether to allow withdrawal of the plea is purely within the trial court’s discretion. (People v. Sandoval (2006) 140 Cal.App.4th 111, 123.) The trial court’s decision is upheld unless an abuse of discretion is shown. (Ibid.) Before a trial court can permit a plea to be withdrawn, Penal Code section 1018 requires a showing of good cause. (People v. Shaw (1998) 64 Cal.App.4th 492, 496.) The burden is on Leon to establish good cause by clear and convincing evidence. (Ibid.)
Leon contends that the mental health issues he was experiencing at the time he entered the plea constitute good cause. During the June 22, 2004, preliminary hearing two months prior to entry of the plea, Leon stated, “I do not feel competent right now with the medication I am under.” Leon requested time to prepare his case with an attorney.
The trial court attempted to clarify if Leon’s concern was his mental health or lack of communication and preparation time with counsel. Leon responded that he was not sure exactly what he was asking for at that time.
The trial court asked defense counsel if he had any concerns regarding Leon’s ability to comprehend the proceedings or assist in his own defense. Counsel responded, “I don’t have those concerns, he seems lucid to me.” The trial court noted that Leon had been in court on multiple prior occasions and seemed to be articulate and to understand the proceedings. The trial court was of the opinion that Leon was using his mental health issues as a “smoke screen” to get a continuance.
Leon replied that he received “SSI” and that he was on “meds.” The trial court responded that this was insufficient to establish inability to comprehend the proceedings or participate in the defense, noting “People all through the system take meds.” The trial court also noted that Leon had not raised any mental health concerns until witnesses were present and the case was ready to proceed.
At the change of plea hearing on August 26, 2004, when Leon entered the no contest plea pursuant to a negotiated agreement, no concerns were raised regarding his mental health. Leon stated that he understood the written plea form and advisement of rights, acknowledged having reviewed it with his attorney, and that he was freely and voluntarily entering into the plea agreement.
The record of the preliminary hearing and change of plea hearing does not establish good cause for withdrawal of the plea. Leon, however, claims that because he subsequently was found incompetent to stand trial on March 30, 2005, he must have been unable to comprehend the nature of the proceedings when he entered his plea.
It was not until seven months after Leon entered his plea that he was found incompetent to stand trial. The expert who examined Leon in March 2005 found that Leon did “meet the knowledge standard for being deemed competent for trial, but his mental illness is not sufficiently under control to enable him to tolerate an actual trial.” The expert was of the opinion that Leon’s ability to remain on task and concentrate would deteriorate over time unless he received adjustments in his medication and treatment. Additionally, it was specifically noted that Leon was “able to knowingly enter into a plea agreement” at this point in time.
Clearly, even in March 2005, Leon was determined to be competent to understand and enter into a plea agreement, although he would not be able to tolerate a trial.
Leon has failed to meet his burden of establishing good cause existed for the withdrawal of his plea. (People v. Shaw, supra, 64 Cal.App.4th at p. 496.) Under these circumstances, the trial court did not abuse its discretion in denying Leon’s motion to withdraw the plea. (People v. Sandoval, supra, 140 Cal.App.4th at p. 123.)
DISPOSITION
The judgment is affirmed.