Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super.Ct. No. FMB008194. Rodney A. Cortez, Judge. Affirmed.
Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Chandra E. Appell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant and appellant Andrew J. Rooks appeals following his guilty plea, because he claims he received ineffective assistance of counsel during plea negotiations. He also contends the trial court erroneously denied his motion to withdraw his guilty plea.
FACTUAL AND PROCEDURAL BACKGROUND
At the preliminary hearing, a police officer testified he was dispatched to a residence on April 5, 2006, and spoke with the victim’s wife who said she had seen defendant walking and stumbling in front of her home and thought he might need help. She called to the victim, who went outside to make contact with defendant, but a struggle ensued when the two men were face to face. She dialed 911. After the two men fell to the ground, defendant appeared to be punching the victim in the stomach. Defendant then got up and ran away. When the victim got up and started walking toward her, she noticed he was covered in blood and had been stabbed.
A second officer testified he met with the victim at the hospital. The victim said defendant leaned forward when he made contact with him as if he needed help, so the victim took hold of defendant’s arm. Defendant then produced a knife and began stabbing the victim. Defendant got up and ran when the victim picked up a rock and began to resist. The victim sustained several stab wounds to the abdomen, chest, and hands, and his injuries included a punctured lung, a lacerated liver, and several severed tendons in his hand that needed to be surgically repaired.
Shoe tracks led police to defendant’s residence. Defendant was taken into custody and his home was searched pursuant to a warrant. Sweatpants and a sweatshirt consistent with the victim’s description of what defendant was wearing during the attack were found rolled up and stuffed between a mattress and the wall in defendant’s bedroom. There appeared to be some spots of blood on the sweatshirt. Several knives, swords, nunchuks, and throwing stars were hanging on the bedroom wall. Police also found a knife hanging on the wall, which was consistent with the knife the victim observed during the attack.
A throwing star is a “metal device with three or more sharp end points, with no handle, which is primarily used [as a] throwing/cutting weapon.”
Following his arrest, defendant admitted stabbing the victim. He told a police officer he had been drinking alcohol and went for a walk. The victim approached him and did nothing wrong, but defendant “stabbed him just because he wanted to hurt someone.”
By information filed October 5, 2006, defendant was charged in count 1 with attempted willful, deliberate, premeditated murder (Pen. Code, §§ 664, 187), personal use of a deadly weapon (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)), and great bodily injury to the victim (§ 12022.7, subd. (a)). In count 2, defendant was charged with unlawful possession of a throwing star. (§ 12020, subd. (a)(1).)
All further statutory references are to the Penal Code.
The proceedings were temporarily suspended on January 5, 2007, when the trial court appointed a psychiatrist to determine whether defendant was competent to stand trial. Although a psychiatrist initially found defendant incompetent, he was found competent after further assessment and the proceedings were reinstated with no need for medication.
On July 26, 2007, defendant pled guilty to all of the allegations in count 1 and count 2 was dismissed. Pursuant to the written plea agreement, the court referred defendant for a 90-day diagnostic evaluation under section 1203.03. The record indicates the Department of Corrections and Rehabilitation prepared a section 1203.03 report on December 28, 2007.
On October 25, 2007, the court was informed defendant wished to file a motion to withdraw his guilty plea; the court appointed a new attorney to advise defendant whether there was a basis for a withdrawal. Defendant’s motion to withdraw was filed on February 6, 2008, but the court denied the motion on April 3, 2008, after hearing testimony from defendant and his trial attorney.
On May 9, 2008, the trial court sentenced defendant in accordance with the plea agreement to a total of 11 years to life in state prison. To reach the total term, the court imposed seven years for the attempted murder (§§ 664, 187), one year for the use of a knife (§ 12022, subd. (b)(1)), and three years for the great bodily injury to the victim (§ 12022.7, subd. (a)).
DISCUSSION
Defendant claims he desperately wanted mental health treatment, and he entered into the plea agreement because his attorney told him it provided for a diagnostic evaluation that would be used to place him in an appropriate mental hospital within the state prison system. However, defendant claims the only purpose of a section 1203.03 report is to determine whether a defendant is suitable for probation or should be sentenced to state prison, and he is statutorily ineligible for probation. As a result, he believes the evaluation was worthless, and he was misadvised by counsel about the benefits of the plea bargain. He also claims the trial court erroneously denied his motion to withdraw his plea agreement, because it misunderstood the true purpose and value of the section 1203.03 report.
“A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. [Citations.] ‘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. Weaver (2004) 118 Cal.App.4th 131, 145-146.) “Abuse of discretion is established if, considering all of the circumstances before it, the trial court exceeded the bounds of reason. [Citation.]” (People v. Parmar (2001) 86 Cal.App.4th 781, 792-793.)
A cognizable claim of ineffective assistance of counsel following a guilty plea requires a showing defendant would not have pled guilty and insisted on going to trial but for counsel’s incompetent advice. (In re Resendiz (2001) 25 Cal.4th 230, 253.) Such a claim must be corroborated by independent, objective evidence. (Ibid.) Pertinent factors to be considered include the advice actually given by counsel, whether counsel accurately and effectively communicated the terms of the offer to the defendant, and the difference between the offer and the probable consequences of proceeding to trial, as viewed at the time the offer was made. (Ibid.)
During the hearing on the motion to withdraw, defendant’s trial attorney testified his understanding of the plea bargain was that it provided for defendant to undergo a diagnostic evaluation and for the court not to sentence defendant until the report was received. During plea negotiations, he told defendant there were mental health facilities within the Department of Corrections and Rehabilitation that could address his mental health issues. He advised defendant that the purpose of the diagnostic evaluation would be to review his case and recommend a suitable placement for him, and this was a significant factor in defendant’s decision to plead guilty. He did, however, indicate to defendant there were no guarantees he would be placed in a mental health facility. Defendant testified he pled guilty based on his belief “there was a possibility” he would “go to a hospital.” In other words, defendant’s testimony is inconsistent with his current assertion that he was erroneously advised “that the section 1203.03 evaluation was for the purpose of placement in a state mental hospital.” Defendant admitted during his testimony that he understood such a placement was only a “possibility.”
Following testimony by defendant and his trial attorney, the trial court essentially concluded defendant did not have good cause to withdraw from the plea agreement because he was not misadvised and did not base his guilty plea on false or misleading information. According to the court, the purpose of a section 1203.03 report is to assist the Department of Corrections and Rehabilitation in determining the most suitable housing for a defendant and not a guarantee or promise for a placement in a specific facility. The court found that defendant’s plea was “knowing and intelligent.” As a result, the trial court told defendant, “[b]uyer’s remorse” was “not going to get him a way out of his change in plea.”
Preliminarily, we must reject defendant’s contention that the section 1203.03 diagnostic evaluation performed as a result of the plea agreement was “meaningless” under defendant’s circumstances, because the only purpose for such an evaluation is to determine whether a defendant is suitable for release on probation or should be sent to prison. Defendant has not presented, and we were unable to locate, any other authority which stands for the proposition that a section 1203.03 diagnostic evaluation can only be used for such a purpose.
By its express terms, section 1203.03 does not limit the use of a diagnostic evaluation to a determination whether the defendant should be released on probation or sent to prison. Subdivision (a) of section 1203.03 states as follows: “In any case in which a defendant is convicted of an offense punishable by imprisonment in the state prison, the court, if it concludes that a just disposition of the case requires such diagnosis and treatment services as can be provided at a diagnostic facility of the Department of Corrections, may order that defendant be placed temporarily in such facility for a period not to exceed 90 days, with the further provision in such order that the Director of the Department of Corrections report to the court his diagnosis and recommendations concerning the defendant within the 90-day period.” In other words, a court has broad discretion under section 1203.03 to order a diagnostic evaluation whenever it believes one is necessary for a just disposition of the case.
Here, it is apparent the trial court accepted the plea agreement and ordered the section 1203.03 diagnostic evaluation, because it was part of the parties’ agreement and would assist the Department of Corrections and Rehabilitation in making a suitable placement decision, thereby resulting in a just resolution of the case. Indeed, the report concluded defendant “is in desperate need of psychiatric treatment.” The report recommended placement in prison where defendant would be able to “take advantage of the programs offered to assist him in learning self-control and gaining insight into his violent behavior.” We therefore cannot conclude the trial court’s exercise of discretion in denying defendant’s motion to withdraw his guilty plea was based on a misunderstanding of the purpose for a section 1203.03 diagnostic evaluation.
Based on the testimony by defendant and his counsel, we also cannot disagree with the trial court’s rejection of defendant’s claim he did not receive effective assistance of counsel during plea negotiations. Nor can we disagree with the trial court’s resulting decision defendant did not have good cause to withdraw his guilty plea. The testimony indicates counsel accurately and effectively communicated the terms of the plea bargain to defendant. It also shows defendant not only understood the terms but also realized the diagnostic evaluation was not a guarantee he would be placed in a mental health facility. The trial court was therefore justified in concluding defendant’s motion to withdraw was motivated by “buyer’s remorse” rather than good cause.
We also reject defendant’s contention he was misadvised by counsel, because the plea bargain was really no bargain at all. Defendant believes the diagnostic evaluation had no value, and the plea bargain was therefore no more than a stipulation “to the maximum sentence he could have received if he was convicted after a trial.” However, the record does not support defendant’s view. Although defendant was sentenced as provided in the plea agreement to 11 years to life in state prison, his sentencing exposure on count 1 alone was significantly higher.
If defendant had gone to trial and was convicted as charged of attempted premeditated deliberate murder, his potential sentence was life with the possibility of parole. (§ 664, subd. (a).) Based on testimony given at the preliminary hearing, defendant believes there is “significant evidence” suggesting the attempted murder was not premeditated or deliberate. He further believes the jury could have been convinced defendant consumed a large amount of alcohol and was intoxicated at the time of the stabbing, thereby negating the element of specific intent. We disagree. In our view, a jury could reasonably have concluded defendant was guilty of attempted premeditated deliberate murder. Preliminary hearing testimony indicates defendant drank alcohol and went out for a walk carrying a deadly weapon. He viciously and repeatedly stabbed a Good Samaritan who saw him staggering and simply wanted to help. He then told a police officer he stabbed the victim because he wanted to hurt someone. Police found a number of deadly weapons displayed on the wall in defendant’s bedroom, one of which was illegal to own. This evidence suggests defendant was carrying a knife because he wanted to hurt someone and purposely stumbled in front of the victim’s home to attract attention and to draw a potential victim outside. Therefore, based on the record before us, it appears that the plea bargain allowed defendant to avoid the risk of a potential life sentence for attempted premeditated deliberate murder.
Even if defendant was able to convince a jury the attempted murder was not premeditated or deliberate, his exposure for attempted murder was still five, seven, or nine years in state prison, and given the sheer brutality of the attack on the victim, it would not have been an abuse of discretion for the trial court to impose the upper term of nine years. (§§ 664, 187; Cal. Rules of Court, rule 4.421.) For the infliction of great bodily injury on the victim, defendant’s exposure was “an additional and consecutive term of imprisonment in the state prison for three years.” (§ 12022.7, subd. (a).) For the use of a knife during the commission of the offense, defendant was subject to a one-year enhancement. (§ 12022, subd. (b)(1).) In addition, for possession of a throwing star (count 2), defendant could have been sentenced to another year in prison. (§ 12020, subd. (a)(1).) Thus, assuming the jury was convinced the attempted murder was not premeditated or deliberate, defendant’s total exposure on counts 1 and 2, including enhancements, was 14 years in state prison. Under these circumstances, the plea bargain was in defendant’s best interest regardless of whether the diagnostic evaluation resulted in defendant being placed in a mental health facility within the state prison system. The 11-year prison sentence provided in the plea bargain was significantly less than defendant’s exposure if he went to trial. On the record before us, defendant would not have a viable reason for rejecting the plea bargain and insisting on going to trial. Thus, under the facts as presented, defendant is not only unable to show he was misadvised, but is also unable to demonstrate prejudice. We therefore reject defendant’s claim of ineffective assistance of counsel.
Only a single aggravating factor is necessary to make it lawful for the trial court to impose an aggravated prison term. (See § 1170, subd. (b); People v. Black (2007) 41 Cal.4th 799, 815.)
DISPOSITION
The judgment is affirmed.
We concur: RICHLI, J., MILLER, J.