Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. BA334028 of Los Angeles County, Charles Palmer, Judge.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Susan D. Martynec, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Henry Lezine appeals the judgment entered following his plea of nolo contendere to one count of assault with a firearm. (Pen. Code, § 245, subd. (a)(2).) The trial court executed and filed a certificate of probable cause for appellant to appeal the issue of whether his motion to withdraw his plea was wrongly denied. The judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Harold Minor was hired by appellant’s wife, Nelsie Ellis Masa, to clean the back yard of appellant’s house. Minor, who was Masa’s daughter’s boyfriend, threw out trash and recycled metal items. On December 20, 2007, Minor went to the house to retrieve some tools that he had left there. When Minor arrived, appellant asked Minor where appellant’s belongings were, and Minor replied that Masa had asked him to clean up the yard. Minor told appellant that everything was gone except for a tool chest. Appellant went into the house and returned with a gun.
Minor was looking through things in a shed, so appellant called Minor’s name, and when Minor turned around, he saw appellant pointing a gun at Minor’s head. Minor yelled at appellant and dove to the ground when appellant fired the gun. Appellant continued shooting at Minor, saying, “‘It’s going to cost money to replace that stuff.’” Appellant also repeatedly told Minor that he was going to be carried away in a body bag. Appellant shot at Minor from less than five feet away. Minor was struck in the leg on about the third shot, and he then used a metal object to deflect a shot aimed at his head. Between the fourth and fifth rounds, appellant sat down on a chair and continued to shoot at Minor.
When two police officers arrived, they heard someone yelling for help. They were met by two women, including Nicole Weaver, who told the officers that there was a person with a gun in the back of the house. The officers found appellant sitting on a stool, pointing a gun toward the place where the cry for help was coming from. They told appellant to drop the gun, and he complied. Minor was lying on the ground “playing dead.” The officers told Minor that it was safe to come out and saw that Minor was bleeding from his leg.
On April 3, 2008, an information was filed charging appellant with three counts: count one, attempted murder (Pen. Code, §§ 187, 664), with the allegations that appellant personally and intentionally discharged a firearm, causing great bodily injury to Minor, and that appellant personally inflicted great bodily injury on Minor (Pen. Code, §§ 12022.53, subds. (b), (c), & (d); 12022.7, subd. (a)); count two, possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)); count three, assault with a firearm (Pen. Code, § 245, subd. (a)(2)), with the allegations that appellant personally inflicted great bodily injury on Minor and personally used a firearm (Pen. Code, §§ 12022.5, 12022.7, subd. (a)). The information further alleged that appellant had suffered a prior conviction pursuant to the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior conviction of a serious felony pursuant to Penal Code section 667, subdivision (a)(1).
On April 3, 2008, appellant entered a not guilty plea to all the counts of the information and denied all the special allegations. Appellant appeared in a wheelchair at the hearing, and defense counsel submitted a medical order for the court’s consideration. Appellant was still in a wheelchair at a hearing held on May 8, 2008, where the court granted defense counsel’s request for a continuance because counsel was recovering from surgery.
Appellant was no longer in a wheelchair at a June 11, 2008, hearing. Defense counsel stated that she had been unable to give the case the attention it needed, so the court granted her request for another continuance, to July 24, 2008. Defense counsel submitted another medical order, asking the court to recommend that appellant be housed at county jail in order to receive better medical care. Counsel explained that appellant was a cancer patient, suffered from gout and arthritis, had difficulty walking, and was on numerous medications. The court agreed to request appropriate housing and asked whether appellant needed to be in a wheelchair, noting that appellant was not in a wheelchair at that time; defense counsel replied that appellant needed a walker.
On August 5, 2008, the prosecutor expressed the possibility of an eight-year plea offer, but stated that this was not confirmed. Defense counsel requested another continuance to consider the offer, so the court continued the matter to August 19, 2008.
On August 25, 2008, appellant accepted a plea agreement that provided for a sentence of 15 years. Appellant agreed to plead guilty to count three, assault with a firearm, and to admit the allegations that he inflicted great bodily injury on Minor and personally used a firearm. (Pen. Code, §§ 12022.5, 12022.7, subd. (a).) Appellant also agreed to admit the prior strike and the prior conviction for a serious felony. (Pen. Code, §§ 667, subds. (a)(1), (b)-(i), 1170.12, subds. (a)-(d).)
The trial court explained to appellant that the maximum sentence was 45 years to life and that, under the plea agreement, he would receive “15 years in state prison for a plea to count 3, a strike prior, the [great bodily injury] allegation, the 12022.5 allegation, and a prior under 667(a)(1).” The court then explained appellant’s rights to him and asked if he understood them and gave them up. Appellant confirmed that he did. The court asked appellant if his plea was free and voluntary, and appellant replied that it was. Appellant entered a no contest plea to count three, assault with a firearm, and admitted the allegations. Counsel joined in the waivers, concurred in the plea, and stipulated to a factual basis based on the police reports and the preliminary hearing.
The court accepted the plea and imposed sentence as follows: the low term of two years for assault with a firearm (Pen. Code, § 245, subd. (a)(2)), doubled to four years pursuant to the Three Strikes Law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The court imposed two consecutive terms of three years each for the allegations that he inflicted great bodily injury on Minor and personally used a firearm. (Pen. Code, §§ 12022.5, 12022.7, subd. (a).) In addition, the court imposed a consecutive term of five years pursuant to Penal Code section 667, subdivision (a)(1). Appellant received 250 days of actual custody credit and 37 days of good time/work time credit, for a total of 287 days. The court imposed various fines and fees and ordered appellant to pay restitution to the victim, in an amount to be determined later. The remaining counts and allegations were dismissed. The court ordered that appellant be housed in a correctional hospital facility due to his age and poor health and agreed to sign a medical order to get appellant medical attention for pain in his arm and shoulders.
On December 19, 2008, appellant filed a motion to withdraw his plea on the basis that he did not fully understand the nature and consequence of his plea due to his deteriorating health at the time he entered the plea. Appellant argued that he was 75 years old at the time of his arrest and that he had undergone surgery the month before he was arrested. He had returned to the hospital for a bacterial infection and was released on December 14, 2008. While he was in custody following his arrest, appellant did not receive his medications regularly, and his arthritis and degenerative disc disease were aggravated when he was forced to sleep on the floor. Appellant contended that these circumstances caused his health to deteriorate so significantly that his plea was not knowing and voluntary.
On February 18, 2009, appellant filed a psychiatric evaluation in support of his motion. Gordon Plotkin, a psychiatrist who evaluated appellant on February 6, 2009, opined that appellant’s medical condition affected his plea. Plotkin reported that, around the time that appellant entered his plea, he was suffering from “extreme shoulder pain, had bouts with knee pain and other joint pain, and was noted as frequently being in discomfort, ” due to his arthritis and gout. Appellant told Plotkin that he “recalls believing that if he took a plea, this would be the best way for him to get to the penitentiary hospital. He remembers feeling like he had pneumonia at the time (it is verified in the chart that he was having respiratory symptoms). He remembered the pain in his foot, swelling, and receiving gout treatment, albeit not as aggressive as what he was receiving in the outside hospital.” Appellant further told Plotkin that “he was having a difficult time concentrating and focusing on the proceedings, along with coping with the medical problem and pain he was experiencing.”
On February 18, 2009, the trial court held a hearing on the motion to withdraw the plea. The court reasoned that the medical report did not contain any more information than the court previously had regarding appellant’s medical condition at the time of the plea. In addition, the court found that the report did not indicate any interference with appellant’s mental process sufficient to “undercut the knowing, voluntary, intelligent nature of the waivers that were taken at the time of the plea.” The court therefore denied the motion. The court issued a certificate of probable cause for appellant to appeal the denial of his motion.
DISCUSSION
Penal Code section 1018 provides, in pertinent part that, “[o]n application of the defendant..., 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.” “‘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. [Citation.] The grant or denial of such a withdrawal motion is ‘within the sound discretion of the trial court and must be upheld unless an abuse thereof is clearly demonstrated.’ [Citation.] We are required to accept all factual findings of the trial court that are supported by substantial evidence. [Citation.]” (People v. Ravaux (2006) 142 Cal.App.4th 914, 917 (Ravaux).) “An abuse of discretion is found if the court exercises discretion in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice. [Citation.]” (People v. Shaw (1998) 64 Cal.App.4th 492, 496.)
Although section 1018 shall be liberally construed, “‘[a] plea may not be withdrawn simply because the defendant has changed his mind.’ [Citations.]” (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) “‘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, 146.)
Appellant contends that the trial court abused its discretion in denying his motion to withdraw his plea because his health at the time prevented him from fully understanding the nature and consequences of his plea. We hold that appellant has failed to meet his burden of establishing by clear and convincing evidence that the trial court abused its discretion in denying his motion.
In Ravaux, the appellate court held that there was “substantial evidence to support the trial court’s determination that [the defendant]’s plea was knowingly and intelligently entered of his own free will, unhindered by any medical condition and with adequate representation.” (Ravaux, supra, 142 Cal.App.4th at pp. 917-918.) The court reasoned that the defendant had been apprised of his rights and had “acknowledged and answered affirmatively to each of the court’s explanations before entering his plea.” (Id. at p. 918.) The court rejected the defendant’s reliance on his medical condition as a reason to withdraw his guilty plea, stating that “[a]t no time did his medical condition or demeanor indicate to his attorney or the court that he was intoxicated or confused to the point where his judgment was impaired. The sole evidence that his judgment was affected by medication [was] [the defendant]’s own assertions in support of his motion to withdraw the plea.” (Ibid.) The appellate court explained that the trial court was entitled to “consider its own observations of the defendant” and to “take into account the defendant’s credibility and his interest in the outcome of the proceedings” in deciding that the defendant “was not impaired to the point that his independent judgment was overcome at the time he entered the guilty plea.” (Ibid.)
Similar to Ravaux, the record here contains no indication that appellant’s medical condition impaired his judgment. Rather, appellant was informed of his rights and of the consequences of his plea and confirmed that he understood them. He was also advised by counsel.
In addition, Plotkin’s medical report did not provide evidence that appellant’s medical conditions impaired his judgment. The report stated that appellant had been suffering from gout and arthritis and complaining of shoulder pain at the time he entered his plea. The report also listed numerous medications that appellant was taking, but there is no indication that any of the medications impaired his judgment. Although the report discusses numerous medical conditions, the report does not establish that appellant’s conditions affected him such that his plea was not knowing, intelligent, and voluntary. Indeed, Plotkin conceded there was no “data to confirm that [appellant] was not competent at the time [he entered his plea.]”
Even assuming the record allowed the inference that appellant’s judgment was impaired when he entered his plea, the record also indicates that appellant was informed of his rights and that he understood the consequences of his plea and entered the plea knowingly and voluntarily. “Where two conflicting inferences may be drawn from the evidence, it is the reviewing court’s duty to adopt the one supporting the challenged order. [Citation.]” (People v. Hunt (1985) 174 Cal.App.3d 95, 104.)
We must uphold the trial court’s decision “‘unless there is a clear showing of abuse of discretion. [Citations.]’ [Citations.]” (People v. Weaver, supra, 118 Cal.App.4th at p. 146.) Appellant has failed to show that the trial court’s decision was arbitrary, capricious, or patently absurd. (People v. Shaw, supra, 64 Cal.App.4th at p. 496.) The trial court’s denial of appellant’s motion to withdraw his plea accordingly is affirmed.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, Acting P.J. MANELLA, J.