Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR 525551
Bruiniers, J.
Pursuant to a negotiated disposition, Antonio Torres Pulido entered a plea of nolo contendere to assault with a semiautomatic firearm (Pen. Code § 245, subd. (b)) and to residential burglary (§ 459). His plea also encompassed allegations that that he personally used a firearm (§ 12022.5) in the commission of the assault and that he committed the offense for the benefit of, at the direction of and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)). He challenges the trial court’s denial of his motion to withdraw his plea. We find no abuse of discretion and affirm.
All statutory references are to the Penal Code unless otherwise indicated.
Background
On the evening of November 27, 2007, Prudencio Alvarado was in his Santa Rosa residence with his half-brother Leobardo Pacheco and several other relatives. When Pacheco responded to a knock on the front door, three people in dark clothing and ski masks, carrying handguns, pushed their way into the house. Alvarado “jumped” one of the intruders and was pistol-whipped by all three. Pacheco was shot in the stomach and the hand. He retreated to the kitchen and retrieved a handgun. As the intruders ran toward a back bedroom, Pacheco was shot again and he returned fire. One of the intruders was shot and collapsed to the floor. The other two ran into the backyard and then to the street. When police arrived, they found several large containers holding $1.5 million worth of marijuana in a bedroom of Alvarado’s home. In another bedroom, they found Maximiliano Martinez, a known Sureño gang member, lying dead on the floor. Martinez’s car was found in front of the house.
The facts of the charged crimes are taken from the probation department’s presentencing report.
In the course of the subsequent investigation, Martinez’s girlfriend told police that she believed Martinez was with Pulido and Jose Luis Quiroz the night of his death. Pulido told her they had gotten into a fight and Martinez had been shot. Quiroz’s girlfriend told police that Quiroz called her after the incident and said that he and Pulido had been involved in a shooting. He asked her to pick them up at a store about one mile from the site of the shooting. Pulido’s girlfriend told investigators that Pulido said the police were looking for him and she should tell them he was with her the night of the shooting. Quiroz was arrested and admitted to the police he went to the Alvarado residence with Martinez and Pulido for a “drug rip,” something went wrong and there was shooting. Pulido denied involvement. Quiroz and Pulido were both identified as Sureño gang members.
Quiroz and Pulido were charged by first amended felony complaint with the murder of Martinez (§ 187, subd. (a); count I); attempted murder of Pacheco (§§ 664, 187, subd. (a); count II); assault of Pacheco with a semiautomatic firearm (§ 245, subd. (b); count III); attempted first degree robbery of Pacheco (§§ 664, 211; count IV); attempted first degree robbery of Alvarado (§§ 664, 211; count V); residential burglary of Pacheco and Alvarado (§ 459; count VI); and gang participation (§ 186.22, subd. (a); count VII). It was alleged that each of the first six counts was committed as gang activity within the meanings of section 190.2, subdivision (a)(22) (murder charge) and section 186.22, subdivision (b)(1)(C) (counts II–VI). On the murder charge, it was alleged that a principal personally and intentionally used and discharged a handgun within the meaning of section 12022.53, subdivisions (b), (c), (e), and (e)(1). On the attempted murder and robbery charges, it was alleged that a principal personally and intentionally used and discharged a handgun and caused great bodily injury within the meaning of section 12022.53, subdivisions (b), (c), (d), (e) and (e)(1). On the assault charge, it was alleged that Quiroz and Pulido each personally used a firearm within in the meanings of sections 12022.5, 1192.7, subdivision (c), and 667.5, subdivision (c). On the burglary charge, it was alleged that Quiroz and Pulido each personally used a firearm within the meanings of sections 1203.06, subdivision (a)(1), 12022.5, subdivision (a). As to all charges, it was alleged that Pulido had a prior conviction for active gang participation (§ 12025, subd. (b)(3)), which was a strike within the meaning of section 1170.12 and a prior serious felony conviction within the meaning of section 667, subdivision (a)(1). It was further alleged that Pulido had served two prior prison terms within the meaning of section 667.5, subdivision (b).
On April 7, 2008, the date of a scheduled preliminary hearing, Pulido entered into a plea agreement. He waived preliminary hearing and pled no contest to assault with a semiautomatic firearm (§ 245, subd. (b)) and to residential burglary (§ 459). On the assault charge, his plea resulted in findings that he personally used a firearm (§ 12022.5) and that he committed the offense for the benefit of, at the direction of and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)). All other charges and allegations were dismissed with a Harvey waiver. Under the agreement, the maximum sentence was a determinate prison term of 29 years. Pulido signed a waiver form on which he acknowledged, inter alia, that no one had placed any pressure on him to enter his plea, and that he had had enough time to discuss his constitutional rights, his potential legal defenses, and the consequences of the plea with his attorney before entering the plea. Pulido acknowledged on the record that he had discussed his constitutional rights with his attorney and that he knowingly waived those rights. The court made a finding that Pulido’s no contest plea was entered freely, voluntarily, knowingly, and intelligently.
People v. Harvey (1979) 25 Cal.3d 754, 758.
On May 1, 2008, the date of a scheduled sentencing hearing, Pulido filed a motion to withdraw his no contest plea on the ground that he was depressed and suffering emotional distress on the day he changed his plea. He alleged that his emotional condition prevented him from understanding the consequences of his decision, and that he did not have sufficient time to deliberate on the offer. The motion was supported by a brief declaration by Pulido that “I was so emotionally distressed that I did not understand the nature and consequences of entering my plea of guilty to the charges. I was depressed and uncommunicative. I did not inform anyone of my psychological state as my depression prevented me from any meaningful communication about my inability to understand what I was doing. [¶] Also, I did not have time to deliberate on the consequences of the plea. I felt very pressured by the situation and entered my plea without thinking either clearly or deliberately about my actions.”
At an evidentiary hearing, Pulido testified that he first learned of a formal plea offer when he arrived in court for the preliminary hearing. He changed his plea less than two hours later, which was not enough time to deliberate about the consequences of changing his plea. At the time, he was depressed because he had been “accused of an unspeakable crime that I didn’t commit.” When his lawyer explained to him the terms of the plea offer, he did not understand the legal language of the offer and he was depressed, “so I don’t know what I signed over, even though she explained it to me well.” Although he signed the waiver form, he did not actually read what he was signing. When the judge was explaining the terms of the plea offer, “I wasn’t even paying attention because I was still depressed.” However, he answered the judge’s questions truthfully and acknowledged that had gone over the waiver form with his attorney and that he had had enough time to discuss the case with his attorney. He did not tell anyone about his depression “because I keep my feelings to myself” and the depression itself prevented him from communicating his thoughts or feelings.
Pulido acknowledged that he had previously pled no contest to a criminal charge and signed a waiver of his constitutional rights.
When asked why he was having difficulty remembering details of the day he changed his plea, he testified, “I’m worried about my freedom... getting taken away for something I didn’t do. [¶]... [¶]... [I’m] trying to see if I can get out of this.” He said he wanted to withdraw his plea “[b]ecause I made a mistake signing these papers. My lawyer explained it to me a little bit. At the same time, it was like, I don’t know, I wasn’t thinking clearly that day.” He testified that, while he was still somewhat depressed, “I’ve snapped out of it because I made a mistake signing these papers.” He had never been treated by psychologists or psychiatrists because “I don’t believe in that.”
Defense counsel asked the court to “take judicial notice of the circumstances at the time the plea was entered[:] the offer was made that morning. It was a pre-prelim offer that we discussed in the courtroom. We never did have a chance to discuss it, the actual offer[,] outside of the courtroom.”
A sheriff’s deputy testified that as he escorted Pulido into the courtroom for his preliminary hearing Pulido told him “he was going to court looking possibly for a deal.” Pulido denied making this statement. Another deputy who was in the courtroom that day testified that Pulido had numerous conversations with his attorney and a brief conversation with his codefendant while he was in the courtroom. The deputy watched Pulido the whole time and opined that Pulido had no difficulty communicating. Pulido’s attorney told the deputy that Pulido was feeling pressure from family members who were in the courtroom, but Pulido never indicated he was having problems and he showed no signs of distress. A deputy testified that he was told Pulido needed to be removed from the courtroom following his change of plea because he was emotional. The deputy who escorted Pulido out of the courtroom testified that Pulido was shaking and distraught. Pulido told him he had taken a deal for 29 years, which seemed like a very long time, but he had been facing a life sentence. The deputy asked Pulido if he was feeling suicidal or if he wanted to talk to mental health personnel, but Pulido declined. The deputy asked this question both as a matter of routine because Pulido had pled to a long prison term and because of Pulido’s emotional state. Finally, a deputy who escorted Pulido to court about a week after the change of plea hearing testified that Pulido said he was trying to get out of the plea deal because he had taken some bad advice from his lawyer. Pulido testified that he did not recall making the statement.
Pulido acknowledged that he talked to his codefendant.
The trial court denied Pulido’s motion to withdraw his plea. “Mr. Pulido is not a stranger to the criminal justice system. In fact, he has suffered four prior juvenile adjudications, three prior adult [felony] convictions.... [¶] On April 7th, 2008, when Mr. Pulido entered his negotiated disposition in this case,... the Court felt that based on what it saw, [defense counsel] effectively represented Mr. Pulido.... [¶]... [T]he Court carefully discussed [the plea agreement] with Mr. Pulido and told him what the consequences of the plea were and what was going to happen in this particular case. [¶] I specifically asked if he had read each and every paragraph on the Tahl waiver form. He indicated that he had, that he had understood those paragraphs.... Specifically,... he indicated... that he had enough time to discuss with his attorney his Constitutional rights, his defenses, and any defense that he may have to this charge and the consequences of this plea. [¶]... The Court, after spending time discussing with Mr. Pulido those Constitutional rights, found that the plea was entered freely, voluntarily, knowingly and intelligently. That was based on the conversation that it had with him in the evidence that was before the Court. [¶] He comes into court now, he talks about... the fact that he was depressed. But there has been no evidence introduced regarding his mental health status at this point, other than some concern by the jail staff that’s done on a regular basis for people entering pleas to serious offenses before the court. [¶] So the Court doesn’t feel that his testimony now about his depression is significant, especially based on his own testimony that he... [is] ‘focused on myself and I’m just concerned about how to try to get out of this.’ [¶] So the Court feels that he did have... buyer’s remorse.”
The court sentenced Pulido to an aggregate term of 29 years in prison, consistent with the plea agreement. He received an upper term of nine years for the assault with a firearm charge, a 10-year personal use enhancement pursuant to section 12022.5, and another 10-year gang enhancement pursuant to section 186.22, subdivision (b)(1)(C). For the first degree burglary charge, he received a concurrent four-year middle term.
Pulido’s trial attorney filed a notice of appeal on Pulido’s behalf, which cited the denial of his motion to withdraw his plea as a ground for appeal. Although a certificate of probable cause is required to appeal on this ground (In re Chavez (2003) 30 Cal.4th 643, 651; § 1237.5; Cal. Rules of Court, rule 8.304(b)), the attorney did not request a certificate and the trial court did not issue one. Appellate counsel moved in this court for leave to seek a belated certificate of probable cause. In December 2008, we denied the request, but we reconsidered our order in December 2009, and concluded the constructive filing doctrine of In re Benoit applied on the facts of this case. (In re Benoit (1973) 10 Cal.3d 72, 87–88.) We ordered the trial court to rule on a request for a certificate of probable cause if it was filed within 10 days of the date of the order. Pulido filed such a request and the trial court issued a certificate on December 15, 2009, explaining Pulido had stated reasonable grounds for appeal of the denial of his motion to withdraw his plea.
In the words of the statute, “a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.” (§ 1237.5, subd. (a).)
On January 22, 2010, we granted Pulido’s motion to augment the record with the certificate of probable cause.
Discussion
The sole issue on appeal is whether the trial court erred in denying Pulido’s motion to withdraw his plea.
“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.” (§ 1018.) The defendant bears the burden of establishing good cause by clear and convincing evidence. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1207.) A guilty or no contest plea and its attendant waiver of constitutional rights is valid only if it is knowing, intelligent and voluntary. (Bradshaw v. Stumpf (2005) 545 U.S. 175, 183.) Thus, to establish good cause to withdraw such a plea, “it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.]... ‘A plea may not be withdrawn simply because the defendant has changed his mind.’ [Citations.]” (Huricks, at p. 1208.) We review the denial of a motion to withdraw for abuse of discretion, and we adopt the trial court’s factual findings if they are supported by substantial evidence. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
As an initial matter, the People argue that Pulido waived his right to appeal on this ground when he entered his no contest plea. During the plea colloquy, the trial court informed Pulido, “[Y]ou do have a right to appeal this case after sentencing. As part of the negotiated disposition under [section] 1192.5 of the Penal Code, you’re willing to go ahead and give up those [a]ppellate rights?” and Pulido responded affirmatively. Such a waiver (like the plea itself) is valid only if it is knowing, intelligent and voluntary. (People v. Panizzon (1996) 13 Cal.4th 68, 80; People v. Vargas (1993) 13 Cal.App.4th 1653, 1660.) The argument that a plea (and thus the waiver) was not knowing, intelligent and voluntary “will always remain open for appellate review.” (In re Uriah R. (1999) 70 Cal.App.4th 1152, 1157.) Because Pulido makes such an argument, his appellate claim is not foreclosed by the waiver.
Reviewing Pulido’s arguments on the merits, the record amply supports the trial court’s factual findings and those findings support its decision to deny the motion to withdraw the plea. No abuse of discretion is shown.
Pulido first argues that his emotional distress was such that he could not and did not knowingly, intelligently and voluntarily enter his no contest plea. He testified that he was depressed because of the long sentence he was facing, and that due to his depression he did not communicate his thoughts or feelings about the plea offer, did not pay attention to the waiver form he was signing, and did not pay attention to the judge’s statements during the plea colloquy. However, the trial court’s finding to the contrary is supported by: its own observations of Pulido during the change-of-plea hearing; the lack of any corroborating evidence that Pulido suffered from any debilitating mental condition at the time he considered the plea offer (i.e., no history of prior mental health treatment or requests for treatment); the fact that Pulido declined an offer of mental health support following the change-of-plea hearing (although Pulido testified he did not remember this offer, the trial court was free to credit the deputy’s testimony); and statements by Pulido suggesting the true motivation for his motion was, as the trial court observed, “buyer’s remorse.” Although the sheriff’s deputies’ testimony confirmed that Pulido was visibly emotional following his change of plea, nothing evidenced that this was anything other than the distress naturally resulting from recognition of the serious consequences he had now accepted, including a lengthy prison sentence. The evidence does not compel a finding that he was suffering from similar distress at the time of his decision to accept the plea bargain, or that his emotional condition was such that he could not and did not knowingly, intelligently and voluntarily change his plea. The trial judge, who observed Pulido’s demeanor both at the time of the plea and during his subsequent testimony, found otherwise.
Pulido argues his evident emotional distress at the time of the plea was so severe that the court should have entertained a reasonable doubt about his competency to change his plea, and that due process required the court to have held a hearing on his competence. This argument is forfeited because Pulido did not raise it in the trial court. (Ward v. Taggart (1959) 51 Cal.2d 736, 742 (Ward).) In any event, as just summarized, nothing in the record reflects that Pulido exhibited any behavior at the time he entered his plea that would call into question his competence, and substantial evidence supports the trial court’s finding that Pulido did not enter his plea as the result of any severe emotional distress. Certainly nothing in Pulido’s testimony suggested that he lacked the capacity to understand the proceedings. (See Godinez v. Moran (1993) 509 U.S. 389, 401, fn. 12.)
Pulido argues that he did not have sufficient time to consult with his attorney about the plea agreement. However, the trial court’s finding to the contrary is supported by Pulido’s express statements both on the waiver form and during the plea colloquy on the record that he had sufficient time to consult with his attorney. Further, there was no contemporaneous defense objection nor any request for additional time to consider the offer. The case Pulido cites is easily distinguishable. In People v. McGarvy, the defendant met for only 20 to 30 minutes with an attorney who had not been appointed by the court to represent him but had been asked by the district attorney to “ ‘at least talk’ ” to the defendant; meanwhile, an attorney who had been retained by the defendant’s family to represent him was denied access to the defendant. (People v. McGarvy (1943) 61 Cal.App.2d 557, 559–561.) In these circumstances, the court rather understatedly held, “[T]here was undue haste in the entire disposition of the case.” (Id. at p. 561.)
Pulido argues that the terms of the plea offer itself imposed unreasonable time constraints on his ability to consult with counsel. He represented in his motion to withdraw his plea that he “was under the impression that he had to accept the offer immediately or the offer would, in all likelihood, be withdrawn. That is, if the Preliminary Examination proceeded, the offer would no longer be available. The offer was a Pre-preliminary Exam offer.” He did not so aver in his declaration in support of the motion, however, and he did not so testify at the evidentiary hearing. At the hearing on his motion, his attorney asked the court to take judicial notice of the fact that “the offer was made that morning. It was a pre-prelim offer that we discussed in the courtroom.” The court never expressly ruled on this request for judicial notice and no other evidence was presented that the offer had to be accepted before the start of the preliminary hearing or it would be withdrawn. Even Pulido’s own motion merely represented that he was “under the impression” the offer was only open until the preliminary hearing. Therefore, the argument is not supported by the evidence.
Moreover, even if the argument had evidentiary support, Pulido cites no authority holding that a limited-time plea offer in comparable circumstances would be so coercive as to render a defendant’s acceptance of the offer involuntary. He cites People v. Sandoval, but in that case the court held the defendant should have been allowed to withdraw his plea because (1) a codefendant had threatened him with physical harm if he did not take the deal (a package plea deal) and (2) the judge improperly coerced the defendant’s plea with her comments from the bench. (People v. Sandoval (2006) 140 Cal.App.4th 111, 126.) There the judge set a deadline by which the defendant had to accept the plea offer and setting the deadline was only one of several ways in which the judge was held to have improperly involved herself in the plea negotiations. (Id. at pp. 119, 126–127.)
Finally, Pulido argues that he did not have a fair opportunity to consult with his attorney about the plea offer because their discussions took place in the courtroom rather than a private setting. This claim is forfeited because it was not clearly raised below. (Ward, supra, 51 Cal.2d at p. 742.) In any event, the absence of any defense request for other accommodations at the time Pulido was considering the offer, the lack of any evidence presented to the trial court that Pulido’s ability to consult with his attorney was actually impaired, and Pulido’s failure to raise this issue clearly when he sought to withdraw his plea fatally undermines his position in light of his burden to present clear and convincing evidence in support of his claim.
At the evidentiary hearing, Pulido’s attorney asked the court to take judicial notice of the fact that Pulido and the attorney did not have a chance to discuss the offer “outside of the courtroom.” The court never ruled on this request and the defense did not present other evidence that Pulido and his attorney were unable to consult outside the courtroom. More importantly, in neither his written motion nor his closing argument at the evidentiary hearing did Pulido either mention the fact that he had to consult with his attorney inside the courtroom rather than in private or argue that he should be allowed to withdraw his plea because he had no opportunity to consult with counsel in private.
Disposition
The judgment is affirmed.
We concur: Simons, Acting P. J., Needham, J.