Opinion
C085123
10-19-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOHN MAGGIO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF16204)
Following his plea of no contest to inflicting corporal injury on a former girlfriend (Pen. Code, § 273.5), making criminal threats (§ 422), and unlawful possession of a firearm (§ 29805), defendant Michael John Maggio appeals the trial court's denial of his motion to withdraw his plea. He contends the trial court abused its discretion in that he demonstrated good cause to withdraw his plea based on the trial court's misadvisement as to whether his admission of making criminal threats would remain a strike even if the conviction were reduced to a misdemeanor and that in the absence of the misadvisement, he would not have entered the plea. We find defendant has not met his burden to establish prejudice and affirm the judgment.
Undesignated statutory references are to the Penal Code.
I. BACKGROUND
The substantive facts underlying the offenses are largely irrelevant to defendant's claims on appeal, so are only briefly recounted here.
Defendant and K.F. had dated and lived together for approximately one and one-half months. Their relationship broke up due to mutual domestic violence. One evening after the breakup, they were spending time drinking together and defendant told K.F. he wanted to rekindle the relationship. K.F. refused. Defendant got angry, picked her up by the arms and threw her to the bed. He then proceeded to repeatedly hit, kick, and stomp on her. He grabbed her cell phone, told her she was not going anywhere, pointed a gun at her head, and threatened to kill her. He also hit her in the face with a flashlight, causing her to lose consciousness. When she continued to refuse to resume their relationship, he ordered her to leave the apartment. An unknown woman picked K.F. up and gave her a ride to the hospital where she received treatment for her injuries. During a search of defendant's residence, law enforcement found numerous rounds of live ammunition and items associated with the manufacturing of butane honey oil. In a search of defendant's car, law enforcement found large bags of marijuana, a handgun, more ammunition, and approximately $2,300 in cash.
An information charged defendant with: corporal injury on a former girlfriend (§ 273.5, subd. (a) —count 1) with an allegation that he used a deadly weapon, a flashlight (§ 12022, subd. (b)(1)); assault with a firearm (§ 245, subd. (a)(2)—count 2); assault with a deadly weapon (flashlight) (§ 245, subd. (a)(1)—count 3); making criminal threats (§ 422—count 4); false imprisonment (§§ 236/237—count 5); unlawful possession of ammunition (§ 30305, subd. (a)(1)—count 6); unlawful possession of a firearm (§ 29805—count 7); manufacturing concentrated cannabis (Health & Saf. Code, § 11379.6, subd. (a)—count 8); and robbery (§ 211—count 9). The information also alleged firearm enhancements on counts 4 and 5. (§§ 12022.5, subd. (a), 12022, subd. (a)(1).)
Defendant pleaded no contest to inflicting corporal injury on a former girlfriend, making criminal threats and unlawful possession of a firearm. The terms of the plea included that defendant would receive felony probation with no jail time served at the outset, the cash and property seized from defendant would be returned to him, and the trial court would dismiss the remaining counts and allegations with a Harvey waiver as to count 8.
People v. Harvey (1979) 25 Cal.3d 754.
During the plea colloquy, the trial court informed defendant that the criminal threats conviction would be a strike conviction and, in the future, it would double his sentence. The trial court then stated, "Let's say you come back to this court—and this matter is never reduced to a misdemeanor. Okay. That strike conviction could be alleged. If it's alleged, you would be required to serve twice the amount of time you otherwise would. And rather than doing half time—because right now you'd get half time if you went to prison on this case. If you came back and there was a strike alleged in some future case, then the amount of time you'd be required to do would be doubled, and you'd be required to serve 80 or 85 percent of that sentence. [¶] Understood?" Defendant asked, "If I don't get it expunged?" And, the trial court answered, "Correct." During the plea colloquy, defendant also clarified he was pleading to criminal threats, not great bodily injury, and corrected the trial court on the date of the offense and attendant search of his property.
Prior to sentencing, defendant moved to withdraw his plea. (§ 1018.) Defendant claimed both his counsel and the trial court had wrongly advised him that a criminal threats conviction would not constitute a strike if it were subsequently reduced to a misdemeanor under section 17, subdivision (b). As part of the motion, defendant submitted a declaration in which he averred he did not understand the "lifelong consequences" of his plea. He had understood the terms of the plea to include he would receive probation with no jail time and would have his seized cash returned to him. He further understood the charges could be reduced to misdemeanors, his gun rights would be restored after 10 years, and the strike "would be eliminated from [his] record." He stated he would not have entered the plea if he "had understood and disclosed in detail about the consequences of the plea." The bulk of defendant's declaration related to his claims that: he had been the victim of domestic violence from K.F. and the charges against him were the result of her retaliating; he felt unduly pressured to accept the plea deal "because of the district attorney's issuances of 17 felonies because of [K.F.'s] lies"; the district attorney was aware K.F. was lying and the "initial" plea offer had contained a threat that K.F. would be granted immunity to testify against him; and he had an auditory learning disability which necessitated him having additional time to process and understand the consequences of the plea. Defendant offered no further evidence at the hearing on the motion. The trial court found the misadvisement about the strike conviction was a collateral consequence of the plea and found defendant's declaration "unpersuasive." Accordingly, the trial court denied the motion.
In accordance with the plea, the trial court placed defendant on three years' probation, and awarded him 25 days of presentence custody credit. The trial court ordered him to complete various counseling programs and imposed various fines and fees.
Defendant filed a notice of appeal and the trial court granted his request for a certificate of probable cause.
II. DISCUSSION
Defendant contends the trial court abused its discretion denying his motion to withdraw his plea. Defendant argues the trial court misadvised him that if his criminal threats conviction were reduced to a misdemeanor, it would no longer constitute a strike conviction. He claims this misadvisement constituted good cause to withdraw the plea as it overcame his free judgment and that in the absence of the misadvisement, he would not have entered the plea.
"Section 1018 provides, in part: '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.' The defendant has the burden to show, by clear and convincing evidence, that there is good cause for withdrawal of his or her guilty plea. (Ibid.; People v. Nance (1991) 1 Cal.App.4th 1453, 1457.) 'A plea may not be withdrawn simply because the defendant has changed his [or her] mind.' (Nance, at p. 1456.) The decision to grant or deny a motion to withdraw a guilty plea is left to the sound discretion of the trial court. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254; Nance, at p. 1457.) 'A denial of the motion will not be disturbed on appeal absent a showing the court has abused its discretion.' (Nance, at p. 1456; see Fairbank, at p. 1254 ['A decision to deny a motion to withdraw a guilty plea . . . is final unless the defendant can show a clear abuse of [the trial court's] discretion'].) 'Moreover, a reviewing court must adopt the trial court's factual findings if substantial evidence supports them.' (Fairbank, at p. 1254.)
"To establish good cause to withdraw a guilty plea, the defendant must show by clear and convincing evidence that he or she was operating under mistake, ignorance, or any other factor overcoming the exercise of his or her free judgment, including inadvertence, fraud, or duress. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1207-1208.) The defendant must also show prejudice in that he or she would not have accepted the plea bargain had it not been for the mistake. (In re Moser (1993) 6 Cal.4th 342, 352.)" (People v. Breslin (2012) 205 Cal.App.4th 1409, 1415-1416.)
When a criminal defendant chooses to plead guilty, he or she must be advised of the constitutional rights they are foregoing, the direct consequences of their plea (People v. Gurule (2002) 28 Cal.4th 557, 633-634), and any additional punishment due to prior convictions admitted in connection with the plea, provided such punishment flows directly from the prior convictions and a conviction on the underlying current charge (People v. Cross (2015) 61 Cal.4th 164, 171). There is not, however, a requirement they be advised regarding the consequences of the plea for future convictions, as this is a collateral consequence of the plea. (Gurule, at pp. 633-634.) Although the trial court had no obligation to advise defendant of the collateral consequences of his plea, once the trial court undertook to give advice on that point, the advice must be correct; the court has a duty not to misinform. (See People v. Goodwillie (2007) 147 Cal.App.4th 695, 733.)
A motion to withdraw a plea based on misadvisement of a collateral consequence requires the defendant to demonstrate he would not have entered the plea had he known of the consequence. (In re Moser, supra, 6 Cal.4th at pp. 347, 352-353; accord, People v. McClellan (1993) 6 Cal.4th 367, 374-378.) Prejudice is not established by a defendant's mere assertion that he would have rejected the plea if he had been given a correct advisement. (See McClellan, at p. 378.) Rather, any such assertion must find clear support in the record. (Ibid.)
The record on appeal does not support the conclusion that defendant would have rejected the plea had he been properly advised the criminal threats conviction could be used as a strike in the future. Defendant's question whether the criminal conviction would remain a strike if he did not have it expunged does not demonstrate this was a determining factor in his decision to accept the plea. Rather, it appears to be more of a clarification of the trial court's statement that this conviction would be a strike conviction unless it were reduced to a misdemeanor. Particularly given the other clarifications defendant made and sought during the plea colloquy. Defendant was charged with nine felony counts, including two firearm enhancements. He pleaded to three felony offenses, which themselves exposed him to a term of over five years in prison. In exchange for his plea, defendant received three years' probation. Defendant contends this sentence, in the face of exposure to a sentence of more than 20 years in prison indicated he had a very triable case. However, it also indicates defendant was facing a substantial prison term, and in exchange for his plea, received a relatively minimal sentence. This result could be fairly characterized as a good deal. More importantly, nowhere in his declaration does defendant state he would not have accepted the plea had it not been for the misadvisement regarding the criminal threats conviction. Defendant's declaration is primarily focused on the loss of his rights to possess a gun, his complaints against the victim and claims her charges were retaliatory, feeling unduly pressured by the district attorney, and claims that due to his auditory learning disability, he required additional time to consider the plea. He does not state that had the court advised him the criminal threats conviction would remain a strike, irrespective of whether it was later reduced to a misdemeanor, "he would not have accepted the deal and would have insisted on going to trial." (People v. Archer (2014) 230 Cal.App.4th 693, 706.) Accordingly, we find defendant has not established prejudice. The trial court did not abuse its discretion in denying defendant's motion to withdraw his plea.
In his opening brief, defendant claims that he accepted the plea because he understood the criminal threats conviction could be reduced to a misdemeanor and would no longer be a strike, and this was an important part of his plea bargain. These statements were made in defendant's request for certificate of probable cause attached to his notice of appeal. Those statements are not in the declaration defendant filed as part of his motion to withdraw his plea. Therefore, we do not consider them on appeal. (People v. McClellan, supra, 6 Cal.4th at p. 378 ["Although defendant's amended notice of appeal contains an assertion by defendant that, but for the trial court's omission, he would not have pleaded guilty, that extrajudicial assertion is not a proper component of the record on appeal"].) --------
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
ROBIE, J.