Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1095062, Scott T. Steffen, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Harris, Acting P.J., Cornell, J. and Hill, J.
STATEMENT OF THE CASE
On July 20, 2006, the Stanislaus County District Attorney filed an information in superior court charging appellant as follows: Count I —carjacking (Pen. Code, § 215) with personal use of a deadly and dangerous weapon (§ 12022, subd. (b); count II—robbery (§ 211); count III—assault with a deadly weapon (§ 245, subd. (a)(1)); and count IV—second degree burglary (§ 459). As to all counts, the district attorney specially alleged appellant sustained two prior felony convictions (§ 667, subd. (d)) and served three prior prison terms (§ 667.5, subd. (b)). As to counts I, II, and III, the district attorney specially alleged appellant sustained two prior serious felony convictions (§ 667, subd. (a)). As to counts II, III, and IV, the district attorney specially alleged appellant served a prior prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
On the same date, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.
On November 9, 2006, appellant moved to set aside count II of the information on the ground of insufficient evidence presented at the preliminary examination (§ 995).
On November 14, 2006, the district attorney filed written opposition to the motion.
On November 27, 2006, the court dismissed the robbery charged in count II and the district attorney orally amended count II of the information to allege theft (§ 484).
On the same date, appellant entered into a plea agreement with the prosecution. Appellant pleaded guilty to counts I, III, and IV and admitted a prior serious felony conviction (§ 667, subds. (a), (d)). In exchange, the prosecution agreed to a stipulated sentence of 25 years in state prison and dismissal of the remaining substantive counts and special allegations.
On April 25, 2007, appellant filed a motion to withdraw his guilty plea on the ground that his trial counsel did not visit him in custody to discuss the charges and possible offenses and on the further ground that he entered the plea without necessary medication.
On April 26, 2007, the district attorney filed written opposition to the motion.
On May 2, 2007, the court conducted a contested hearing and denied the motion. The court then sentenced appellant to a total term of 25 years in state prison. On count I, the court imposed a term of 23 years (a doubled upper term plus five years for a prior serious felony conviction). On count III, the court imposed a consecutive term of two years (one-third of the middle term of three years, doubled). The court imposed a $5,000 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and awarded 769 days of custody credits.
On August 30, 2007, appellant filed a timely notice of appeal challenging the validity of the plea along with a request for certificate of probable cause. The superior court granted appellant’s request for certificate of probable cause.
On appeal, respondent submits the notice of appeal was untimely because “appellant was sentenced on May 2, 2007, so his notice of appeal was due on or before July 1, 2007. However, appellant’s notice of appeal was not filed with the Stanislaus County Superior Court until August 30, 2007, nearly two months after the deadline.” Under the “prison-delivery rule,” a prisoner’s notice of appeal is deemed timely filed if delivered to the appropriate prison authorities within the 60-day filing period set forth in California Rules of Court, rule 8.308(a). The burden of establishing compliance with the prison-delivery rule falls on the incarcerated appellant. (In re Jordan (1992) 4 Cal.4th 116, 118-119, 121, 130.) As appellant notes, the declarant who mailed the notice of appeal stated in his proof of service: “I served the following document [notice of appeal with certificate of probable cause] to each of the persons named below [Stanislaus County Superior Court] .... By placing a true copy in a sealed envelope with postage fully prepaid in the U.S. Mail at the Institutional mailroom.” The appellant signed the notice of appeal on June 25, 2007, and the declarant executed the proof of service on that same date. A writing is presumed to have been truly dated. (Evid. Code, § 640.) The filing of a proof of service creates a rebuttable presumption that service was proper. (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) Service is complete at the time the document is deposited in the mail. (Sharp v. Union Pac. R.R. Co. (1992) 8 Cal.App.4th 357, 360.) Here, respondent does not offer any evidence to rebut the presumption of proper service under the prison-delivery rule and we may deem the notice of appeal timely filed.
STATEMENT OF FACTS
On June 7, 2005, Wayne D. Easterley was a loss prevention investigator for the Home Depot on North Carpenter Road in Modesto. At 5:30 p.m., he saw appellant in the hardware department of the store. Appellant picked up several trailer locks and concealed one of them in the front of his pants. Appellant went around a corner, returned into Easterley’s view, met up with a female, and removed one lock from his pants and the second lock from his sock. He put both locks on a counter, took two packages of Velcro, and concealed both packages in the front of his pants. Appellant attempted to leave the store through the contractors’ exit. Easterley stopped appellant in the loading zone, said he was with loss prevention, and explained he needed appellant to come back inside the store to discuss the unpaid Velcro.
Appellant tried to get away from Easterley and the latter eventually took him to the ground. Appellant called out to his female companion and Easterley placed appellant in handcuffs after a few minutes of struggle. Easterly then escorted appellant to the loss prevention office in the back of the store. Easterly started preparing a report for the store and called the police department. Appellant still had the Velcro packs in his pants. He told Easterley one of the hot dog vendors would give him free food if appellant got the vendor some free Velcro. Each packet of Velcro sold for $8.97.
After Easterley telephoned the police, appellant asked several times to use the restroom. Easterley and an assistant manager walked appellant to the restroom and removed the handcuffs. Appellant walked in the door, which opened inward. Appellant tried to flee. Easterley tried to push the door back shut. Appellant got his left arm out of the door and tried to wiggle his way out the door. About half of appellant’s body was inside the restroom and half was outside. The assistant manager held the door shut while Easterley tried to pull appellant back in. The door opened, Easterley looked out, and he saw appellant holding a knife with a three-inch blade. Appellant made an overhand motion with the knife and the tip scraped the door. When Easterly realized appellant had a knife, he let go immediately and advised the assistant manager about the weapon. The assistant manager let go of the door. Appellant went out the door and the assistant manager called 911.
That same afternoon, Barbara J. Williams was at the Valero Gas Station on Carpenter Avenue. A man came up to her Ford F150 pickup truck, jumped into the front passenger seat, brandished a knife with his left hand, and told her to drive him away. Williams and her grandfather had been pumping gas into the truck. She told the man she was not going to drive him anywhere. She reached through the open door with her right hand to reach the keys and appellant put his right hand over hers. Williams eventually broke off the bulk of the keys from her keychain and left her car key in the ignition. At that point she was still standing outside of the truck. Williams tussled with appellant and sustained knife cuts to her hand. He started the truck and then drove away. Williams positively identified appellant as her assailant.
DISCUSSION
On appeal appellant contends the trial court violated his constitutional rights by denying his motion to withdraw his guilty plea.
A. Facts Underlying the Plea Agreement
On November 27, 2006, appellant and the prosecution entered into a plea agreement after the trial court set aside count II of the information. The prosecutor explained:
“… It is a career criminal case and resolutions are disfavored in these cases. However, after substantial discussion and after this morning’s ruling the People and the Defense have proposed the following disposition: The defendant will receive a total of 25 years.... We’ll strike all priors as to the burglary in Count IV for two years concurrent. We’ll dismiss what is left of Count II. What we propose is to amend to a 484. The (b) priors will be stricken in their entirety.”
Upon questioning by the court, appellant signified the proposed disposition was okay, that he was pleading guilty because he was, in fact, guilty, and that the proposed sentence was for 25 years. The following exchange occurred later in the proceeding:
“THE COURT: Other than what has been stated here in open court, has anyone made any other promises to you to get you to enter your plea?
“THE DEFENDANT: No.
“THE COURT: Anyone threatened you or anyone close to you to get you to enter your plea?
“THE DEFENDANT: No.
“THE COURT: Have you had enough time to talk to your attorney regarding facts and circumstances of the case, possible defenses, and the consequences of your plea, including the immigration consequences and the strike consequences?
“THE DEFENDANT: Yes.
“THE COURT: Do you understand the nature of the charge place against you?
“THE DEFENDANT: Yes.
“THE COURT: Are you pleading guilty freely and voluntarily?
“THE DEFENDANT: Yes sir.
“THE COURT: You have certain constitutional rights which apply to all of the charges against you, including any prior convictions, enhancements, special allegations, circumstances in aggravation or circumstances in mitigation. You have the right to a court trial or jury trial. You have the right to confront and cross-examine witnesses against you. You have the right to the processes of the court to subpoena witnesses for you. You have the right to present evidence and testify in your own behalf. You have the right to remain silent, not incriminate yourself. You have the right to a speedy trial and you have [the] right to an attorney. If you cannot afford an attorney, one will be appointed for you at no cost to you at all stages of the proceeding. [¶] Do you understand each of those rights, sir?
“THE DEFENDANT: Yes, sir.
“THE COURT: You give up each of these rights?
“THE DEFENDANT: Yes, sir.
“THE COURT: Mr. Canty [deputy public defender], have you had enough time to talk to your client regarding facts and circumstances of the case, possible defenses, the consequences of his plea, including the immigration and strike consequences and his constitutional rights?
“MR. CANTY: Yes.
“THE COURT: Do you consent to his change of plea?
“MR. CANTY: I do.”
The court subsequently took appellant’s plea and noted:
“Court finds the defendant understood the nature of the crime and the consequences of his plea. The court also finds the defendant understood his rights and knowingly, intelligently, voluntarily waived those rights and there is a factual basis for the plea.”
B. Facts Underlying the Motion to Withdraw Plea
On April 25, 2007, appellant filed a motion to withdraw his guilty plea. In the declaration in support of the motion, appellant stated: (a) he entered the guilty plea according to the terms of a new offer; (b) he did not believe he had sufficient time to speak with his attorney Deputy Public Defender Canty about the matter; (c) neither Canty nor a representative of Canty came to visit him in custody to discuss the charges and possible defenses; (d) he believed the agreement left him substantially in the same position that he would have been in had he gone to trial and lost; (e) he entered the plea without medication necessary to treat his paranoid schizophrenia; and (f) as a result, he did not willingly, intelligently, and knowingly change his plea.
C. Facts Elicited at Hearing on Motion to Withdraw Plea
On May 2, 2007, the superior court conducted a contested hearing on appellant’s motion to withdraw his plea. Appellant testified he recalled entering a plea on November 27, 2006 but did not recall the terms of his plea agreement or the nature of the charges against him. Appellant believed his counsel was an attorney named Canty from the public defender’s and that he took the plea offer partially based upon his advice. Appellant claimed neither Canty nor an investigator from the public defender’s office ever visited him in custody. He also claimed Canty never produced transcripts of the prior pleas in his strike cases. Appellant did not believe he had enough time to speak with Canty about the instant case when he accepted the offer.
Although appellant gave up certain rights when he entered the plea, he claimed he did not knowingly and intelligently give up those rights. Appellant further claimed he was taking numerous psychotropic medicines while in custody. Those medications included stelazine and lithium and that the medicines were to address the problems of “[h]earing voices, depression.” Appellant said he had been receiving these medications before he entered his plea but the administration of the medicines was interrupted three weeks before the actual change of plea date. Appellant believed the interruption of the medication prevented him from thinking clearly on the change of plea date. He explained, “When I’m not taking the medication I’m pretty claustrophobic and they have me as a paranoid schizophrenic.”
Appellant explained that doctors from Scenic Hospital had reached that diagnosis. He further testified, “[P]art of the paranoia I guess is when Canty took, basically was telling me he couldn’t fight this case, it was scary, and I agreed to go along with the deal. And I don’t believe that was the right choice at this time.” Appellant recalled his sentence was for 25 years and he objected to that term because “I believe it would be a life sentence.” Appellant said his ex-wife spoke to attorney Canty about his medications several days prior to the plea offer but could not recall what he told Canty about the medications. However, he maintained Canty was aware of the medications at the time appellant entered the plea.
On cross-examination, appellant said he had not taken any medication in the two months preceding the hearing on motion to withdraw plea. He also said he was frightened by the prison exposure on the instant case. When asked whether appellant was aware of his prior strikes, appellant said he was not sure because one of the strikes was 38 years old and “there wasn’t ever enough information to be, for it to actually be used then.” Appellant said he was never really sure if he was a third striker or not. Appellant said he was age 16 when he committed a robbery in 1969. The prosecutor asked appellant whether attorney Canty explained that the district attorney’s office was going to allege the 1969 offense as a strike. Appellant said, “The way I seen it was you wanted 30 days more and Jeff [Canty] said no. You had two cases. We came back in two days there was no mention of no strike whatsoever. It was let’s put this off for 30 days and asked me if I’d waive time. So, basically what it did was give me 30 days after seven months of trying to get information on the strike. That is what I know about.”
Appellant told the prosecutor he “[p]retty much” understood all of the questions he was asking appellant at the hearing on motion to withdraw plea. Appellant said he also understood the questions that defense counsel had asked. Appellant confirmed that Canty never visited appellant in jail and never spoke to appellant when the latter was out of custody. He said they spoke entirely in court except for “once or twice he [Canty] was talking to a group of people while I was in the room, in the jury room, but other than that it was not really much of a conversation with him.”
Appellant also testified that the day the offer was made, he went into the back jury room and spoke with Canty for about a half hour. Appellant said, “I’m talking about a whole year here of no communication with my attorney whatsoever.” When the prosecutor asked whether appellant was aware of prison exposure “of better than 50 years to life,” appellant responded, “Yeah, I guess. I mean, there was never no figure brought to my attention so to speak.” Appellant said he was uncertain about his plea decision at the time he made it in November and, in hindsight, did not believe he made the right decision in November.
Appellant testified he was diagnosed with paranoia schizophrenia in 1993, was subjected to observation in Napa State Hospital at one point, and had been diagnosed with the same affliction as a child. Appellant said he had been incarcerated since the age of 16 and had sustained three prison terms in his life. Appellant said aside from memory he was not having any mental problems at the time of the hearing on motion to withdraw his plea.
Appellant said he did not receive any sort of plea offer prior to the November 27 change of plea hearing. Appellant said the prosecution wanted an immediate answer to their plea offer and he did not have the option of thinking about it over a week or several days. Appellant described the offer as “a one-time thing,” meaning “I suppose I had to let them know within one hour.” Appellant said he indicated he wanted more time to think about the offer but “counsel was telling me there wasn’t no use in it, that argument, because it was a one-time offer or something.”
Appellant’s trial counsel, attorney Geoffrey Canty, testified after the court found a waiver of the attorney/client privilege. Canty said he was a deputy public defender with the County of Stanislaus and first appeared in appellant’s case on February 2, 2006. Canty said he spoke one-on-one with appellant outside of the courtroom in excess of 10 times. Canty explained:
“[W]hen I say one-on-one, it means when I get to that number it would be sitting in the ... jury room of the courtroom sitting talking to Mr. Robison or having him pulled out in the hallway and talking to him or I know of at least on two occasions I’ve spoken with Mr. Robison in the BD backup holding cell in a closed room.”
With respect to a resolution of the case, Canty said he initially spoke with appellant over the phone from the jail and believed he spoke with him three times in addition to that initial phone conversation. One conversation was in excess of an hour and it occurred in the BD backup holding cell. Canty said he was expected in court at the time but nonetheless spoke with appellant “at least an hour, if not longer.” Another conversation occurred in the BD backup holding cell and took “in excess of half an hour but probably less than an hour.” He recalled a third telephone conversation took 20 minutes.
Canty said he had been a defense attorney for nine and a half years and had other clients who appeared to show overt mental health issues. However, Canty never noticed anything with respect to appellant in the three weeks preceding November 27, 2006, the date of the change of plea. Canty said he did not recommend that appellant accept or reject the plea offer. Rather, Canty advised appellant about his chances at trial, stating:
“Well, I think I specifically told him – I could never have told him what would occur at trial. A trial is sometimes difficult to predict. However, I thought he would be – certainly my experience told me he would certainly be convicted of petty theft. He would most likely be convicted of assault with a deadly weapon. That the car jacking witness was fairly credible. His version was slightly different, but that petty theft was very strong. To put it in a nutshell, that is the 30 second version of an hour conversation.”
Canty said he explained to appellant he could get more time in prison if he went to trial and lost. Canty further testified:
“... I can say specifically we had an in-depth discussion with regard to what would, even if the court were to strike a (d) prior, that he would, he could still receive more time even after the Romero Motion was granted based on the charges that he was charged with.”
Canty acknowledged that he and the prosecutor spoke about appellant’s case at great length before the prosecution extended a plea offer. Canty said he spent some time working the prosecutor down from a higher term of years and eventually Canty and the prosecutor reached a potential agreement as to a 25-year offer. On cross-examination, Canty said he and appellant had a telephone discussion about the prosecutor’s initial offer of 28 years. Canty recalled that he and appellant were offering 23 years at that point. Canty and appellant discussed “the different ways you would get to the number 28 versus the number 23, and what could be done to sort of get it to the 23 versus the 28.” Canty thought that telephone conversation took place in October 2006.
Canty said he requested transcripts of the pleas in appellant’s prior burglary case and prior juvenile adjudication. Canty recalled the receipt of a transcript in the burglary case but he could not recall whether there was a transcript of the juvenile adjudication. Canty recalled “there was substantial issues with the juvenile adjudication [and] … the one main issue was the date of the adjudication. Mr. Robison’s recollection was different than what it was.” Canty said they verified the date of the adjudication and he looked at the prior. Canty apprised appellant of problems the prosecutor might have in proving up the adjudication. Canty explained “[t]hat is the reason we were having the discussion with regard to even if we were to enter a Romero Motion or be able to simply challenge the prior with regard to the juvenile adjudication, that he would still be looking at more time even with one strike and the charges that he was charged with.” On redirect-examination, Canty said his settlement discussions with the prosecutor extended over several days and weeks and “months, potentially.”
On further recross-examination, Canty outlined his settlement discussions with appellant:
“Well, I think we started at the number of 23 and I told him what the district attorney was offering was 28. We discussed strategies in trying to get it down to that number. Specifically we had an in-depth and I think this goes to whether I recommended or I didn’t recommend it. Because of Mr. Robison’s age, I told him specifically that I saw a 25 to 28-year sentence as potentially being a life sentence, and he would not be any better off by taking that deal versus going to trial but that, mathematically, if you actually ran the numbers it was a pretty good deal from the standpoint of he would probably be looking at substantially more should he go to trial or if he were again to get convicted of both priors, 75 to life or 50 to life. So, I had an in-depth discussion with regard, that I wouldn’t be giving him advice with regard to whether or not he should accept that offer or not, that he would specifically have to make that decision for himself, that I did not, that I understood as a matter of principle that taking 25 years or 23 or 28, frankly, was probably for him a life sentence; but he needed to decide what he wanted to do for himself.”
Canty said he also spoke with appellant about his mental health problems and use of medication. Canty had spoken with appellant’s ex-wife, who discussed some potential mental health problems. As a result, Canty had two in-depth discussions with appellant about that condition. Canty said he had never noticed any outward symptoms of mental health problems. However, he told appellant that his ex-wife had brought up some mental health issues that appellant experienced at age 18 and appellant did his best to address those issues. Canty said he specifically discussed the possibility of section 1368 proceedings with appellant. He advised appellant that if he was not understanding things or unable to discuss things “he should say things now.”
As to the timing and duration of the plea offer, Canty recalled the court granted a section 995 motion as to one count and the prosecutor offered 25 years saying “it would be good today only.” Canty said he and appellant had discussed the possibility of his taking an offer of 28 years but “then that 25 was made partly as a result of being successful on the 995.”
On further redirect-examination, Canty said he discussed with appellant the advantages of taking the 25-year offer. Canty testified: “One, you have an out date. That is always a nice thing. Two, if he lived that long he, there too, there was some classification, we talked about he may receive better classification as a result of 25 versus being an determinate term.” Canty said a better classification could result in better prison housing for appellant.
D. Ruling of the Court
The court stated:
“… The standard of proof is clear and convincing evidence. My observations today as well is as my recollection of when I took the plea is, well, I don’t recall any specific issues with regards to Mr. Robison’s mental health at the time of the plea.
“If I had had any doubts about his ability to comprehend what was going on, I would have raised them. I’m not saying I would have necessarily seen anything, but nothing came to mind at that point.
“The evidence is he’s not on medications today. He seemed to be doing fine in answering the questions. But, more importantly, Mr. Canty indicated he spoke directly with Mr. Robison regarding mental health issues. Found no mental health issues. And I specifically asked about 1368 he said there were no issues there and he considered them.
“Also, it sounds to me like there was discussion over a period of days regarding a sentence between 23 and 28 years. Ultimately the resolution was 25. Based on that, I don’t believe there is grounds for withdrawal of the plea. I believe the plea was entered knowingly, intelligently and voluntarily; and there is no proof of clear and convincing evidence of that to the contrary. So the motion is denied.”
E. Applicable Law
Section 1018 states in relevant part:
“Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court.... On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may ... for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted....”
“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.) A defendant represented by counsel may bring a motion to withdraw a guilty plea pursuant to section 1018, and the trial court may grant the motion where good cause is shown by clear and convincing evidence. Mistake, ignorance, or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. (People v. Cruz, supra, at p. 566.)
Clear and convincing evidence requires a finding of high probability. Such evidence must be so clear as to leave no substantial doubt or be sufficiently strong to command the unhesitating assent of every reasonable mind. (In re Michael G. (1998) 63 Cal.App.4th 700, 709-710, fn. 6.) The requirement of good cause shown by clear and convincing evidence is not lessened when a motion to withdraw a plea is made after judgment. (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1617.) Good cause is not established simply because the defendant changed his mind. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456-1457.) Additionally, post-plea doubt about the wisdom of a plea is not a basis for permitting a defendant to withdraw it. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. (Brady v. United States (1970) 397 U.S. 742, 757.)
The withdrawal of a guilty plea rests in the sound discretion of the trial court and may not be disturbed unless the trial court has abused its discretion. An appellate court will not disturb the denial of a motion unless the abuse is clearly demonstrated. Under California law, it is the defendant’s burden to produce evidence of good cause by clear and convincing evidence. (People v. Wharton, supra, 53 Cal.3d at p. 585.) Section 1018 requires liberal construction of its provisions to promote justice. However, 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 (1990) 224 Cal.App.3d 923, 928 .)
In determining whether the statutory grounds are present, the trial court is the trier of fact and the judge of the credibility of the witnesses or affiants. Consequently, it must resolve conflicting factual questions and draw the resulting inferences. In determining the facts, the trial court is not bound by uncontradicted statements of the defendant. (People v. Hunt (1985) 174 Cal.App.3d 95, 103.) As is with most other evidentiary rulings by a trial court, we apply the substantial evidence rule on appellate review. Under this rule, we must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. If the circumstances reasonably justify the trial court's findings, an appellate court cannot reverse merely because the circumstances might also be reasonably reconciled with a contrary finding. (People v. Quesada (1991) 230 Cal.App.3d 525, 533.)
The granting or denial of an application to withdraw a guilty plea is within the discretion of the trial court after a consideration of all the factors necessary to bring about a just result; and the decision of the trial judge will not be disturbed on appeal unless an abuse thereof is clearly demonstrated. While the section is to be liberally construed and a plea of guilty may be withdrawn for mistake, ignorance, or inadvertence or any other factor overreaching the defendant’s free and clear judgment, the facts of such grounds must be established by clear and convincing evidence. (People v. Waters (1975) 52 Cal.App.3d 323, 328.) Discretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. The term judicial discretion implies absence of arbitrary determination, capricious disposition or whimsical thinking. (People v. Giminez (1975) 14 Cal.3d 68, 72.)
F. Contention on Appeal
Appellant argues in pertinent part:
“Regarding appellant’s mental problems, there is no evidence that appellant was not suffering from paranoid schizophrenia. The evidence is undisputed that, when the plea was entered, he was without his necessary medication. Although Canty may have discussed appellant’s mental problems with him and his wife, there is no evidence that Canty had appellant evaluated by a mental health professional. The fact that appellant may have appeared capable of properly entering a plea, is not determinative of his mental state. [Citations.] Because there was evidence of mental problems and required medications, counsel should have had appellant evaluated by a psychiatrist or psychologist. Such evaluation would have provided information regarding possible defenses as well as appellant’s competency to enter a plea.
“Nor did the trial court inquire into any mental problems or appellant’s then-current mental condition when the plea was entered.… Had the trial court undertaken such questions, it would have learned of the mental problems.
“There is no evidence that appellant’s counsel ever obtained and reviewed a copy of the plea transcript in appellant’s juvenile ‘strike’ case. Thus, he could not have adequately or properly advised appellant to plead guilty ‘“‘a rational and informed decision on strategy and tactics’”’ must be ‘“‘founded on adequate investigation and preparation.’”’ (People v. Avena (1996) 13 Cal.4th 394, 444 .…)
“Nor did appellant have sufficient time to consider the new 25-years-in-prison offer. The offer was open for only one day, yet appellant had only a ‘[r]ecess of two hours’ to consider it. As appellant declared, ‘I do not believe I had sufficient time to speak with my attorney Geoffrey Canty about this matter.’ Although counsel had spoken with appellant regarding previous disposition offers, counsel never visited appellant ‘in custody,’ i.e., in the jail, where the pros and cons of a plea could be discussed in a calm, and unhurried manner. As counsel conceded, his discussions with appellant took place on the days he had to come to court in holding cells or other places not conducive to careful discussion and consideration.”
G. Application of Law
We initially note that a plea may not be withdrawn simply because a defendant has changed his mind. (In re Brown (1973) 9 Cal.3d 679, 686.) Moreover, California law does not require that an offer to plead be held open for any specified period of time; it need only be held open for a reasonable period of time, upon request therefor. (People v. Watts (1977) 67 Cal.App.3d 173, 183.) In the instant case, the record of the November 27, 2006, change of plea hearing reveals appellant understood the terms of the offer and voluntarily agreed to those terms. Appellant responded affirmatively when asked at the November 27 hearing whether he understood the charges against him and whether he had been given sufficient time to discuss the offer with his attorney. Defense counsel responded affirmatively when asked by the court whether he had been given enough time to discuss the facts and circumstances of the case, possible defenses, and consequences of the plea. Neither appellant nor his trial counsel requested additional time to consider and discuss the plea offer. Further, at the hearing on motion to withdraw plea, defense counsel indicated he had spoken to appellant about a resolution of the case on multiple occasions. The resolution they discussed entailed a term of somewhere between 23 and 28 years. In view of these facts, appellant’s claim of lack of time to consider the plea offer must fail.
As to reliance on medications, appellant failed to show that the lack of psychotropic medications at the time of the November 27 hearing adversely affected his ability to understand and effectively participate in the change of plea. At the hearing on motion to withdraw, attorney Canty specifically noted that he did not notice any outward signs of mental health issues that would have impaired appellant’s ability to understand the nature and impact of the courtroom proceedings on November 27. Counsel affirmed his awareness of appellant’s prior mental health problems but did not believe they justified section 1368 proceedings because appellant was able to understand what was happening in the instant case. The trial court observed appellant during the November 27 hearing on change of plea and the May 2 hearing on motion to withdraw plea but did not see any behavior suggesting that appellant did not understand the proceedings. The court did not abuse its discretion in denying appellant’s motion to withdraw on the basis of an alleged reliance on psychotropic medications.
Finally, appellant stated during the May 2 hearing that he objected to his 25-year sentence because it was the equivalent of “a life sentence.” Nevertheless, he also acknowledged that were he convicted of any felony in the instant case, he would face a minimum of 25 years to life in state prison. A plea may not be withdrawn simply because the defendant has changed his mind. (People v. Nance, supra, 1 Cal.App.4th at pp. 1457-1458.) Moreover, buyer’s remorse is insufficient to compel a court to permit withdrawal of a plea. (People v. Knight (1987) 194 Cal.App.3d 337, 344.) In the instant case, the court properly exercised its discretion by hearing and weighing the extensive testimony of appellant and his original trial counsel, by considering its own observations at the November 27 change of plea hearing and the May 2 hearing on motion to withdraw, and by setting forth in detail his reasons for denial of the motion. (People v. Ravaux (2006) 142 Cal.App.4th 914, 918.)
The decision of the trial court was well within its discretion and reversal of the order denying motion to withdraw the plea is not required.
DISPOSITION
The judgment is affirmed.