Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCN254615, Aaron H. Katz, Judge.
McDONALD, J.
Franco Leon appeals a judgment following his guilty plea to one count of attempted possession of a controlled substance (Pen. Code, § 664, Health & Saf. Code, § 11350, subd. (a)). On appeal, he contends the trial court abused its discretion by denying his motion to withdraw his guilty plea because he had insufficient time to consider the plea offer and his counsel pressured him into accepting the plea bargain.
All statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Because Leon pleaded guilty, the facts underlying the offense are based on the probation report.
On November 24, 2008, police officers stopped Leon's vehicle. He initially gave them a false name. After he consented to a search of his person, the officers discovered what they thought was 0.1 grams of heroin in a back pocket of his pants.
On November 26, 2008, a complaint was filed charging Leon with one count of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), with a special allegation that he had previously been convicted of another possession offense in 1995. It also charged him with providing false information to police officers (§ 148.9, subd. (a)), and alleged Leon had a prior serious or violent felony conviction under the three strikes law (§§ 667, subds. (b)-(i), 668, 1170.12) and two prison prior convictions (§§ 667.5, subd. (b), 668). On December 9, a readiness hearing was held and Leon's preliminary hearing was set for December 11.
On December 11, 2008, before the preliminary hearing began, Leon entered into a plea bargain and pleaded guilty to one count of attempted possession of a controlled substance and admitted the prior strike conviction allegation. The other charges and allegations were dismissed. The parties agreed to a stipulated sentence of eight months for the attempted possession offense, doubled for his prior strike conviction, for a total term of 16 months.
On February 20, 2009, Leon (then represented by substituted counsel) filed a motion to withdraw his guilty plea. On April 1, Leon filed his signed declaration in support of his motion.
On April 24, 2009, the trial court conducted an evidentiary hearing on Leon's motion to withdraw his guilty plea. The court denied the motion. The court then proceeded with sentencing and imposed the stipulated 16-month term, granting him custody credits of 228 days.
Leon timely filed a notice of appeal. The trial court issued a certificate of probable cause for his appeal.
DISCUSSION
I
Section 1018 Motions to Withdraw Guilty Pleas
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.... This section shall be liberally construed to effect these objects and to promote justice." In People v. Weaver (2004) 118 Cal.App.4th 131, at pages 145 to 146, we described the general legal principles that apply to a defendant's motion to withdraw a guilty plea:
"A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. [Citations.]... '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.]"
"A plea may not be withdrawn simply because the defendant has changed his mind." (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) "The fact that [a defendant] may have been persuaded, or was reluctant, to accept the plea is not sufficient to warrant the plea being withdrawn. [Citation.]" (People v. Ravaux (2006) 142 Cal.App.4th 914, 919 (Ravaux), citing People v. Urfer (1979) 94 Cal.App.3d 887, 892.)
On appeal, we will not reverse a trial court's decision whether to grant or deny a defendant's motion to withdraw a guilty plea unless an abuse of the court's discretion is clearly shown. (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796; Ravaux, supra, 142 Cal.App.4th at p. 917.) We "must adopt the trial court's factual findings if substantial evidence supports them." (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) A trial court abuses its discretion is it "exercises discretion in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice." (People v. Shaw (1998) 64 Cal.App.4th 492, 496.)
II
Trial Court's Denial of Leon's Section 1018 Motion to Withdraw
Leon contends the trial court erred by denying his section 1018 motion to withdraw his guilty plea. He argues his guilty plea was not voluntary because he had insufficient time to consider the plea bargain and was pressured by his counsel to accept the plea bargain.
A
At the hearing on Leon's motion to withdraw his guilty plea, the trial court considered the testimony of his trial counsel (William Stone), Leon's declaration in support of his motion, and the reporter's transcript from the hearing during which Leon changed his plea to guilty. At his change of plea hearing on December 11, 2008, Leon confirmed to the trial court that he had carefully read and understood his change of plea form before he initialed and signed it. Leon further confirmed he had reviewed the form with his counsel, who had answered all questions he had regarding the form. Leon told the court he did not have any questions of the court regarding the form. The court asked him: "Are you entering the plea freely and voluntarily?" (Italics added.) Leon answered: "Yes, I am." Leon initialed the box on his change of plea form adjacent to the statement: "I am entering my plea freely and voluntarily, without fear or threat to me or anyone closely related to me." (Italics added.) His counsel signed the attorney's statement portion of the change of plea form, stating he had explained to Leon the entire contents of the plea form and discussed all charges and possible defenses with him and the consequences of the plea. The trial court found Leon's plea was knowing, voluntary and intelligent, and accepted his guilty plea.
In support of his motion to withdraw his guilty plea, Leon's declaration stated:
"2. Mr. William Stone was appointed to my case as a public defender. Mr. Stone spoke to me for approximately five minutes on the date of my readiness conference [i.e., on December 9, 2008].
"3. On December 11, 2008, Mr. Stone advised me to enter a plea of guilty. I requested more time to consider the matter. I asked Mr. Stone if he retested the [heroin] and he said 'no.' I also asked him to retest the [heroin]. However, Mr. Stone told me that I must either plead guilty immediately or I would lose the chance [to] accept the offer.
"4. As a result of Mr. Stone's representations, I felt compelled to plead guilty without adequate time to consider the offer. Accordingly, I plead[ed] guilty to an attempted possession of [heroin] and admitted a strike prior. If I had been given time to consider the matter, I would never have entered a guilty plea and waived my right to a jury trial."
During the April 24, 2009, hearing on Leon's motion to withdraw his guilty plea, his trial counsel, William Stone, testified that he had been a public defender for more than 20 years. Stone first met Leon prior to his readiness hearing (i.e., on December 9, 2008). They discussed Leon's case and the fact they did not yet have a lab report identifying the substance possessed by Leon. They also discussed the police report and Leon's prior criminal history. Stone told Leon that with his prior strike conviction the "best case scenario" was that he would receive a sentence of 32 months. Their discussion lasted more than 10 minutes. At the readiness hearing, Stone confirmed the preliminary hearing date of December 11.
Stone testified that on December 11, 2008, he saw a copy of the lab results shortly before the scheduled preliminary hearing. The lab results showed the substance found in Leon's pocket tested positive for.02 grams of heroin. Because the amount of heroin was small, Stone negotiated a plea bargain with the prosecutor. He could not recall whether the offer was available "today-only." Stone testified he then approached Leon and discussed with him the plea bargain and the change of plea form. He further testified he would have answered any of Leon's questions at that time. He did not recall whether Leon told him he wanted him to retest the heroin. He was certain they discussed Leon's case and any defenses or possible defenses he had. They also discussed Leon's "maximum exposure" in the case, which apparently was eight years in prison. Leon asked Stone if he could get a better deal than 16 months in prison (e.g., probation and a drug program). Stone did not recall Leon stating he needed more time to consider the offer. He did not recall Leon asking him to have his case continued so that a retest of the heroin could be done.
After hearing the evidence and arguments of counsel, the trial court denied Leon's motion to withdraw his guilty plea. The court stated:
"I've reviewed all the documentation. I am familiar with this case, in that I was the judge [who] took the plea in your case.... I'm just simply not convinced that good cause has been demonstrated, given the thrust of what took place factually here and knowing the circumstances certainly of what took place. They're evidenced by both the change of plea form, by the discussion that took place in court on the record where I went into detail with you about the circumstances and inquired as to whether or not you understood what took place. And you indicated that you did.
"And I think this is more of a case of remorse, buyer's remorse, rather than the fact that you feel that you were not given adequate time to consider the offer. That is not uncommon where a situation arises-in fact, sometimes it arises prior to the preliminary hearing-where you're given an offer by the People, and [at] the readiness conference you're told that you need to accept that offer or if you don't it's no longer available to you.
"[In] this particular case, the case was discussed. You were well aware of what the charge was at the time of the readiness conference. You were told that the lab result was not in. And it was decided that you would proceed to preliminary hearing. At that time the lab result was made available to you. You were advised in the discussion as presented by Mr. Stone was, what was the best deal that could be reached? I'm satisfied that a discussion took place. I'm satisfied that you probably did want to know whether or not some better offer could be provided. And you were told that that was the best deal and also told that you could and had the opportunity to proceed to preliminary hearing if that's what you chose to do. You didn't choose to do that. You chose to accept the People's offer. And I'm not satisfied that the burden has been met in this case. And your motion to withdraw your plea is hereby denied."
The court stated it was not convinced that good cause had been demonstrated to allow Leon to withdraw his guilty plea. It then proceeded to conduct Leon's sentencing hearing.
B
Leon first argues his guilty plea was not voluntary, but was instead coerced because the offer was available "today-only." Alternatively stated, he argues he had insufficient time to consider the offer. However, contrary to Leon's apparent assertion, a "today-only" plea bargain offer does not necessarily deprive a defendant of his or her free will or unduly coerce the defendant into accepting the offer. Rather, it is the trial court's function to weigh the evidence in a particular case in determining whether a defendant shows, by clear and convincing evidence, he or she did not freely and voluntarily accept a plea bargain. Although a "today-only" offer may cause a defendant some stress, or duress, it may not necessarily be undue duress that precludes a defendant from freely and voluntarily agreeing to the plea bargain.
Based on our review of the record in this case, there is substantial evidence to support the trial court's implied finding that Leon had sufficient time to confer with his counsel regarding his case and the plea bargain so that he was not precluded from agreeing, and did agree, to the plea bargain freely and voluntarily. Leon discussed his case and his criminal history with his counsel for more than 10 minutes prior to the readiness hearing. Two days later, after his counsel saw the lab results and negotiated a plea bargain, Leon discussed with counsel his case, including any defenses or possible defenses, and the plea bargain, including the change of plea form. They also discussed his maximum exposure of eight years were he to reject the plea bargain. His counsel answered any questions Leon had. Leon was primarily concerned whether he could obtain a better deal (e.g., probation and a drug program). Although the record does not show how long Leon discussed his case and the plea bargain with his counsel before he accepted it, the record supports the trial court's implied finding that Leon had adequate time to discuss with his counsel his case and the plea bargain before accepting it. After conferring with his counsel, Leon signed the change of plea form in which he stated he entered his guilty plea freely and voluntarily. At the hearing on his change of plea, he confirmed to the trial court that he entered his guilty plea freely and voluntarily. Assuming arguendo the plea bargain was a "today-only" offer, there is substantial evidence to support the trial court's implied finding that Leon had sufficient time to confer with counsel regarding, and to consider, the plea bargain before accepting it and entering his guilty plea. The trial court reasonably rejected Leon's assertion to the contrary as stated in his declaration and as his counsel argued at the hearing on his motion to withdraw his guilty plea. Neither People v. McGarvy (1943) 61 Cal.App.2d 557, nor People v. Huricks (1995) 32 Cal.App.4th 1201, are factually apposite to this case or persuade us to conclude otherwise.
Because there is substantial evidence to support the trial court's finding Leon had sufficient time to discuss his case and the plea bargain with his counsel before accepting it, we conclude Leon has not carried his burden on appeal to show that his counsel's performance was deficient and that it is reasonably probable he would have obtained a more favorable outcome had he had more time to confer with counsel. (Strickland v. Washington (1984) 466 U.S. 668, 692, 694-696.) Leon does not show he would have rejected the plea bargain had he had more time to confer with his counsel before accepting it and, even had he rejected it, that he probably would have obtained a more favorable result or trial outcome had he received more time to confer with his counsel.
To the extent, as Leon asserts, McGarvy concludes a 20-to-30 minute conversation with defense counsel is necessarily insufficient for a defendant to freely and voluntarily agree to a plea bargain, we disagree. (People v. McGarvy, supra, 61 Cal.App.2d at pp. 560-561.) Each case must be decided on its circumstances and we cannot conclude a relatively short conversation with defense counsel (e.g., 20 to 30 minutes) is, as a matter of law, insufficient time for a defendant to freely and voluntarily agree to a plea bargain. We also reject Leon's summary assertion that the trial court violated his constitutional right to due process of law when it denied his motion to withdraw his guilty plea.
Likewise, we conclude there is substantial evidence to support the trial court's implied finding that Leon's counsel did not unduly pressure him to accept the plea bargain so that he could not, or did not, freely and voluntarily agree to it. As noted above, "[t]he fact that [a defendant] may have been persuaded, or was reluctant, to accept the plea is not sufficient to warrant the plea being withdrawn. [Citation.]" (Ravaux, supra, 142 Cal.App.4th at p. 919, citing People v. Urfer, supra, 94 Cal.App.3d at p. 892.) Although the record shows Leon's counsel advised, and perhaps persuaded, Leon to accept the plea bargain, the trial court could have reasonably found that the advice and/or persuasion did not rise to the level of coercion or undue persuasion so that Leon could not, or did not, freely and voluntarily agree to it. "Nothing in the record indicates [Leon] was under any more or less pressure than every other defendant faced with serious felony charges and the offer of a plea bargain." (People v. Huricks, supra, 32 Cal.App.4th at p. 1208.)
Because there is substantial evidence to support the trial court's finding that Leon freely and voluntarily agreed to the plea bargain and pleaded guilty to the attempted possession charge, we conclude the court did not abuse its discretion by concluding he did not show good cause for withdrawal of his guilty plea. (§ 1018; People v. Weaver, supra, 118 Cal.App.4th at pp. 145-146; People v. Superior Court (Giron), supra, 11 Cal.3d at p. 796; Ravaux, supra, 142 Cal.App.4th at p. 917.) The trial court properly denied Leon's section 1018 motion to withdraw his guilty plea.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P. J. HALLER, J.