Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County. Ct. No. VCF177757A Paul A. Vortmann, Judge.
Law Offices of Salvatore Sciandra, Salvatore Sciandra for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
Procedural History
Pursuant to the terms of a negotiated plea agreement, appellant Randy Ray Martinez entered a plea of no contest to the charge of second degree robbery. (Pen. Code, § 211.) Martinez also admitted that he personally used a firearm in the commission of the offense (§ 12022.53, subd. (b)), and that he committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C).) In return for the plea of no contest, it was agreed that Martinez would be sentenced to a maximum term of 13 years, and that the 10-year gang enhancement would be stayed.
All further statutory references are to the Penal Code.
At the sentencing hearing, Martinez told the court he intended to move to withdraw his plea based on counsel’s failure to discuss certain consequences of the plea. Martinez’s counsel stated that, “I think it has a lot more to do with the gang allegation.” The trial court relieved retained counsel and appointed a public defender to assist Martinez with his motion.
At the hearing on the motion to withdraw his plea, Martinez raised two grounds. First, that he had not been advised that he would be required to register as an active participant in a criminal street gang pursuant to section 186.30, even though the gang enhancement was to be stayed. Second, even though the victim testified at the preliminary hearing under oath that Martinez was not the person who robbed him and that the officer had “‘guided’” him into identifying Martinez as the robber, Martinez’s attorney told him there was nothing else that could be done. The trial court asked counsel to address the significance of the failure to advise Martinez that he would be subject to the mandatory gang-registration requirement.
After further argument, during which the prosecutor offered to strike the registration requirement so Martinez would not have to register and defense counsel objected to what he characterized as a renegotiation of the plea agreement, the trial court denied the motion. The court relieved the public defender’s office and appointed Martinez’s earlier retained counsel to represent Martinez at sentencing.
Martinez was sentenced, pursuant to the terms of the plea agreement, to 13 years. The gang enhancement was stayed.
FACTUAL HISTORY
Martinez and an associate approached the victim and his girlfriend walking in an alley. Martinez put a gun at the back of the victim’s neck and asked the victim for his money. When the victim responded that he had none, Martinez ordered the victim to remove his necklace and give it to Martinez. Before leaving, Martinez identified himself as a Norteño gang member. The girlfriend provided police with a description of both Martinez and his associate. Specifically, she said Martinez was wearing a black hooded sweatshirt with a white t-shirt underneath and had numerous hickies on his neck. The arresting officer testified that Martinez was wearing a black hooded sweatshirt and had numerous hickies on his neck when detained. The girlfriend positively identified Martinez as the robber during a field identification, even though the hickies were not visible when she identified him. The victim also said Martinez had numerous hickies on his neck and identified Martinez as the robber in a photo line-up, although he said Martinez had been wearing a white sweater with a red shirt underneath.
At the preliminary hearing, both witnesses recanted. The girlfriend told law enforcement she was afraid of gang retaliation because she lived in the neighborhood. The victim told officers he was affiliated with the same gang and did not want to be labeled a “rat” or placed in protective custody if convicted on a pending charge. He also said because he might be related to Martinez, it would not be right to testify against him. A necklace, identical to the one taken from the victim and described to responding officers, was found in the possession of Martinez’s brother.
Discussion
Martinez claims the trial court abused its discretion when it denied his motion to withdraw his plea. We disagree and will affirm.
Guilty pleas will not be set aside lightly. (People v. Sandoval (2006) 140 Cal.App.4th 111, 123.) A defendant may only withdraw his guilty plea upon a showing of good cause. (§ 1018.) Good cause must be shown by clear and convincing evidence. To establish good cause, the defendant must show he was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254; People v. Sandoval, supra, at p. 123.) The defendant bears the burden of proof. (People v. Suon (1999) 76 Cal.App.4th 1, 4.) When a defendant is represented by counsel, the grant or denial of a motion to withdraw a plea is within the discretion of the trial court. On appeal, the trial court’s decision will be upheld unless there is a clear showing the court has abused its discretion. (Ibid.)
Martinez has abandoned one of his two grounds argued at the trial court: that the motion to withdraw should have been granted because both the victim and the girlfriend recanted their earlier identification of Martinez as the robber. Since Martinez knew the witnesses were recanting before he entered his plea, this evidence could not be used to show that Martinez was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment when he pled no contest to the charges. The trial court properly rejected this reason as justification to withdraw the plea.
The remaining ground Martinez argued in the trial court is the sole contention of error on appeal, i.e., that Martinez was not advised that one of the direct consequences of his plea was the obligation to register pursuant to section 186.30. Section 186.30 requires any person committing a crime where the enhancement of section 186.22, subdivision (a) or (b), is found true to register with the chief of police or the sheriff within 10 days of residing in the city or county. We agree that the trial court had a duty to advise Martinez of the direct consequences of his plea, including any registration requirements under the rationale and holding of Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605. Although Bunnell is a sex offender registration case, we have no reason to conclude that the reasoning of Bunnell does not apply equally to gang-registration requirements. It was error not to advise Martinez that he would be required to register as a gang offender pursuant to section 186.30, even though the gang enhancement was to be stayed.
The Attorney General, while conceding the error, argues that Martinez has not shown he would have rejected the plea agreement had he received the necessary advisement. A defendant is entitled to have his plea set aside based upon a trial court’s misadvisement or lack of advisement only if he or she can establish prejudice, i.e., that the defendant would not have entered the plea had the proper advisement been given. (People v. McClellan (1993) 6 Cal.4th 367, 378.) Martinez states in his declaration filed in support of the motion to withdraw that he did not fully understand the consequences of admitting the gang allegation. He does not say, however, that, had he been advised of the registration requirement, he would not have entered his plea.
Even if we were to read Martinez’s declaration so broadly, the trial court implicitly rejected it as unbelievable. Both the complaint and the information notified Martinez that, if convicted of the gang enhancement, he would be required to register as a gang offender. The registration requirement was not a surprise. At the plea hearing, the court explained that the plea was an admission to the gang-enhancement allegation. It clarified that it was the 10-year term associated with the gang allegation that would be stayed at sentencing. Even if we credited Martinez’s assertion that he was unaware of the gang-registration requirement until after his plea was entered, we could not find the trial court’s implicit conclusion that Martinez would have entered the plea even if he had known the requirement to be an abuse of discretion.
Martinez, at age 18, was facing a 23-year state prison term. He was statutorily ineligible for probation. (§ 12022.53, subd. (g).) He had been unquestionably identified by two witnesses who gave officers a particularly specific description of Martinez—his neck was covered with numerous hickies. Although these witnesses recanted at the preliminary hearing, they did not do so convincingly and the reasons for changing their stories were transparent. The necklace described as being stolen was found in the possession of Martinez’s brother. Although the victim claimed at the preliminary hearing that he had not been wearing a necklace, prior to the hearing the victim claimed the necklace as his own when notified by police that it had been recovered. The evidence of guilt was strong, even in the face of the recanting witnesses. In contrast, the gang-registration requirement is not unduly burdensome and is relatively short-lived. The registration requirement lasts for a period of five years. (§ 186.32, subd. (c); compare § 290 [lifetime registration requirement for those convicted of identified sex offenses].) In addition, the failure to register is a misdemeanor offense. (§ 186.33, subd. (a); compare § 290.018, subd. (b) [failure to register after conviction of felony sex offense punishable by imprisonment of 16 months, 2 years, or 3 years].) Given the nature of the charges, the state of the evidence, and the time Martinez was facing, it is unlikely the gang-registration requirement would have changed his willingness to enter the plea. (People v. Fairbank, supra, 16 Cal.4th at p. 1254.)
Martinez has not claimed that the registration requirement was in any way part of the negotiated plea agreement. (See People v. McClellan, supra, 6 Cal.4th at pp. 378-379 [concluding the failure to give advisement of registration requirement does not render plea involuntary does not end court’s inquiry; court must assure plea agreement was not violated].) Martinez was sentenced to the indicated sentence of 13 years. The gang-allegation enhancement was stayed. There is no evidence the registration requirement was discussed during negotiation of the plea agreement, and the plea agreement has been fully honored. (See In re Moser (1993) 6 Cal.4th 342, 357 [where subject was not encompassed by parties’ plea negotiations, imposition of statutorily mandated consequence of plea does not constitute violation of parties’ plea agreement].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Dawson, J.,Hill, J.