Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. TA091382, David Sotelo, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
SUZUKAWA, J.
Francisco Pineda appeals from the judgment entered following his guilty plea to count 1, committing a lewd act with a child under the age of 14 (Pen. Code, § 288, subd. (a)) and no contest pleas to two additional counts of the same charge, counts 2 and 3. Pursuant to the negotiated plea, appellant was sentenced to prison for a total of nine years, composed of the middle term of six years on count 1, a consecutive low term of three years on count 2, and a concurrent middle term of six years on count 3. Two additional counts of lewd conduct in violation of Penal Code section 288, subdivision (a) were dismissed pursuant to the negotiated plea.
According to the probation report, between May 18, 2007 and June 18, 2007, appellant engaged in lewd acts with children under the age of 14. The mother of the victims reported she had been informed by her daughter that the daughter, as well as her younger sister, had been touched inappropriately by appellant. The older victim specifically described how appellant touched her vagina and that she had observed appellant inappropriately touch the vagina of her younger sister. Appellant was interviewed and indicated he had touched one of the victims on several occasions but had not done it maliciously. He admitted touching one victim when they were returning from seeing a movie and that “it was probably the beers that made him do it. He stated he was drunk.”
The felony complaint also alleged as to each count appellant violated Penal Code section 667.61, subdivision (b), committing the subject offense against more than one victim, which provides for prison terms of 15 years to life.
Appellant’s Marsden motion was heard and denied.
People v. Marsden (1970) 2 Cal.3d 118.
Appellant filed a motion to withdraw his plea claiming a material mistake caused him to plead to the charges. Appellant’s counsel argued appellant believed that if he was found guilty of one count he would be exposed to a life sentence and did not understand he had to be convicted of the special allegation contained in Penal Code section 667.61, subdivision (b). The motion was heard and denied. The trial court noted there had been no declarations submitted by appellant’s trial counsel or by appellant.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On August 7, 2008, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider.
On August 22, 2008, he filed a letter stating he was dissatisfied with his trial counsel and that counsel told him things that frightened him. He wrote that he believed his attorney could have gotten “a better deal in [his] case” and that, because he had tried to “fire[]” his attorney, the attorney “turn[ed] on [him] and . . . force[d him] to jump on [a] stupid deal[]. . . .”
We have examined the entire record and are satisfied that no arguable issues exist. “‘A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. Citations. “Penal Code 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.’ 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.]”’” (People v. Sandoval (2006) 140 Cal.App.4th 111, 123.) 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.) Appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.