Opinion
F055652.
2-23-2009
THE PEOPLE, Plaintiff and Respondent, v. RYAN EARL OTIS, Defendant and Appellant.
Woodrow Edgar Nichols, Jr. for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Wanda Hill Rouzan, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published in Official Reports
OPINION
THE COURT
Before Wiseman, Acting P.J., Cornell, J., and Gomes, J.
All references to dates of events are to dates in 2008.
On February 20, 2008,1 pursuant to a plea agreement, appellant Ryan Earl Otis pled no contest to spousal/cohabitant abuse with a prior (Pen. Code, § 273.5, subd. (e)(1)). On May 14, appellant moved to withdraw his plea. That same day, the court denied the motion and placed appellant on three years probation, one of the terms of which was that he serve 270 days in county jail.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, appellants sole contention is that the court erred in denying appellants motion to withdraw his plea (plea motion). We will affirm.
PROCEDURAL BACKGROUND
Appellant was initially charged with two counts of violating section 273.5, subdivision (e)(1). On January 17, appellant, represented by the office of the Fresno County Public Defender, entered pleas of not guilty to both counts.
On January 30, private attorney Frank Gash substituted in as appellants attorney of record. On February 20, appellant executed and filed a "FELONY ADVISEMENT, WAIVER OF RIGHTS, AND PLEA FORM" (plea wavier form) in which appellant affirmed, under penalty of perjury, inter alia, that he understood the nature of the charges against him; he wanted to withdraw his plea of not guilty and enter a plea of no contest; and he had had enough time to discuss his case and all possible defenses with his attorney.
Also on February 20, appellant appeared in court, represented by Mr. Gash. At the outset of the proceeding, Mr. Gash informed the court that appellant was willing to accept the Peoples plea offer that appellant would plead no contest to one count of violating section 273.5, subdivision (e) in exchange for appellant not being sentenced to prison. Thereafter, appellant affirmed, on the record, inter alia, that he understood the agreement as stated by his attorney; Mr. Gash accurately stated the agreement; appellant had enough time to discuss the matter with his attorney; appellant had no questions about the agreement; and he had executed the plea waiver form. Thereafter, appellant entered his pleas and the court set sentencing for March 19.
On April 30, following three continuances, appellant, represented by attorney Woodrow Edgar Nichols, Jr. who substituted in as appellants attorney of record on April 23, filed a notice of motion to withdraw his plea along with, inter alia, his declaration in support of the motion. In his declaration appellant averred, in relevant part: "[Attorney Gash] made it clear to me that a jury would likely be prone to believe the victim since I had previously been convicted in 2001 for the same offense against a different victim. [¶] With this great weight of the past over my head, I reluctantly entered a plea of no contest. I suffered a feeling of moral letdown subsequently. Finally, the feeling that it was morally wrong to have entered a plea to something I did not do, got the best of me. I would rather be convicted knowing I am right than to take the cowards way out to get a better deal. [¶] I know I am innocent of these charges. I regret my moral weakness when I entered my plea of no contest ...."
A hearing was held on the plea motion on May 14. After hearing argument, the court ruled: "If [appellant] had doubts about his plea, it certainly is not clear from the change of plea transcript, it is not clear from the record of the plea. What it seems to the Court is that this is an attempt to simply change the past.... [I]t is clear to the Court that ... there was nothing that overcame his exercise of free will at the time he entered his plea[.] [T]herefore, the motion to withdraw his plea will be denied."
DISCUSSION
"Section 1018 permits a trial court to allow a criminal defendant to withdraw his guilty plea `for a good cause shown." (People v. Wharton (1991) 53 Cal.3d 522, 585.) "Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea." (People v. Cruz (1974) 12 Cal.3d 562, 566.) "It is the defendants burden to produce evidence of good cause by clear and convincing evidence." (People v. Wharton, supra, 53 Cal.3d at p. 585.) "[S]ection 1018 ... requires liberal construction of its provisions to promote justice." (People v. Hightower (1990) 224 Cal.App.3d 923, 928.)
Appellant argues that in accordance with the rule that section 1018 must be liberally construed, his "uncontroverted statement" that he pled no contest because of his "fear" that his prior conviction would prejudice the jury against him must be considered clear and convincing evidence that his "free will" was "cancel[ed] out," and therefore the trial court abused its discretion in denying appellants plea withdrawal motion. There is no merit to this contention.
"`"[T]he withdrawal of ... a plea [of guilty or no contest] rests in the sound discretion of the trial court and may not be disturbed unless the trial court has abused its discretion." [Citation.] An appellate court will not disturb the denial of a motion unless the abuse is clearly demonstrated." (People v. Wharton, supra, 53 Cal.3d at p. 585.)
"[T]he trial court ... is the trier of fact and hence the judge of the credibility of the witnesses or affiants." (People v. Quesada (1991) 230 Cal.App.3d 525, 533.) "Where two conflicting inferences may be drawn from evidence, it is the reviewing courts duty to adopt the one supporting the challenged order." (People v. Hunt (1985) 174 Cal.App.3d 95, 104.) "[I]n determining the facts, the trial court is not bound by uncontradicted statements of the defendant." (Id. at p. 103.)
Although "section 1018 ... requires liberal construction of its provisions to promote justice," "the promotion of justice includes a consideration of the rights of the prosecution, which is entitled not to have a guilty plea withdrawn without good cause." (People v. Hightower, supra, 224 Cal.App.3d at p. 928.) "Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged." (People v. Hunt, supra 174 Cal.App.3rd at p. 103.) We must distinguish between a plea that is "`involuntary, i.e., done without choice or against ones will, unintentional," from one that is entered "`unwillingly, i.e., reluctant offering resistance." (Ibid.) The latter sort of plea is not based on "mistake, ignorance or overbearance of [a defendants] free will." (Id. at p. 104.)
Nothing in appellants declaration suggests that his will was overcome by the prospect of his prior conviction prejudicing the jury against him. Rather, appellants declaration indicates, at most, that he was reluctant to plead no contest. And even if, as appellant argues, his statements in his declaration could be construed as a claim that the potentially prejudicial effect of his prior conviction so unnerved him that his free will was overcome, the court, as indicated above, was not compelled to credit this claim. The court reviewed the plea waiver form and had the opportunity to observe appellant when he stated in open court that he understood the Peoples offer and had no questions about it. On this record, the denial of appellants plea withdrawal motion was well within the courts discretion.
DISPOSITION
The judgment is affirmed.