Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE261071, William J. McGrath, Judge.
HUFFMAN, Acting P. J.
Christopher Roth was charged with one count of burglary of an inhabited dwelling (Pen. Code, §§ 459 & 460); assault with intent to commit a felony (§ 220) and attempted rape (§§ 261, subd. (a)(2) & 664). It was also alleged Roth used a knife and personally inflicted great bodily injury (§§ 12022.3, subd. (b), 12022, subd. (b)(1) & 12022.7, subd. (a). It was further alleged that Roth had suffered serious felony prior convictions within the meaning of section 667, subdivision (a)(1), two serious/violent felony prior convictions within the meaning of section 667, subdivisions (b) through (i), and two prison priors (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise specified.
Roth entered into a plea agreement, under which he pled guilty to residential burglary, admitted all the enhancements, admitted the serious felony and strike priors and stipulated to a sentence of 39 years to life. The remaining charges and allegations were dismissed. Roth was sentenced to an indeterminate term of 39 years to life pursuant to the agreement.
Roth unsuccessfully sought to withdraw his guilty plea prior to sentencing. He requested and received a certificate of probable cause from the trial court (§ 1237.5). Roth appeals contending the trial court erred in denying his motion to withdraw his guilty plea. We find the trial court properly exercised its discretion and affirm.
Since this appeal only addresses Roth's efforts to withdraw his guilty plea, we will omit the traditional statement of facts.
DISCUSSION
When Roth entered his guilty plea he completed a change of plea form that contained the term "Stip 39" in the section dealing with the promises made to induce the plea. During the taking of the plea the trial court several times asked Roth if he understood that the sentence he was facing was 39 years to life. At one point the court advised Roth: "And your sentence will be no more and no less than 39 years to life on what we have spoken about." In addition the court advised Roth there was a possibility he would spend the rest of his life in prison and would not be eligible for parole for "30 some odd years. I don't have the exact amount. Has all of that been explained to you?" Roth responded: "Yes, sir."
Prior to sentencing, Roth made a motion to withdraw his guilty plea. New counsel was appointed and the court held an evidentiary hearing at which Roth and his previous counsel testified. Roth testified he was never told his sentence was 39 years to life and that he believed the "Stip 39" meant he would receive a term of 39 years. He testified he was never informed that the maximum term was life in prison. Roth's previous counsel testified that Roth was indeed informed that the sentence would have a life term maximum. Counsel testified the "Stip 39" was an inadvertent failure to include the life term maximum on the form. The trial court denied the motion.
Roth contends the trial court abused its discretion in denying his motion. Our review of the record indicates Roth was fully informed of the potential maximum sentence and that the trial court's finding that Roth was aware of the potential sentence is supported by substantial evidence.
Section 1018 permits a trial court to permit a defendant to set aside a guilty plea where the defendant establishes good cause for such action. Courts have construed that section to require the defendant to demonstrate good cause by a strong showing of clear and convincing evidence. (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 797; People v. Weaver (2004) 118 Cal.App.4th 131, 145-146.) Appellate courts review a ruling on a motion to withdraw a plea using the abuse of discretion standard. Under that standard an appellant must clearly demonstrate the trial court's decision was arbitrary, unreasonable or not supported by the facts. (People v. Superior Court (Giron), supra, at pp. 796-797; People v. Nance (1991) 1 Cal.App.4th 1453, 1457.)
Applying the proper standard of review, this record clearly demonstrates the trial court acted well within its discretion in denying Roth's request to set aside his plea. The colloquy between the court and Roth at the time of the plea shows he was repeatedly reminded of the potential for life imprisonment. He was clearly told the sentence would be 39 years to life. Roth's self-serving testimony was contradicted by the testimony of his previous counsel that Roth was advised several times that his sentence would have a life term maximum. The trial court said after hearing the testimony on the motion and reviewing the prior transcript: "So, I have got to say that I'm overwhelmingly satisfied that Mr. Roth knew he was facing a sentence of 39 years to life, despite the fact that the change-of-plea form did not have the word 'life' on it, based on the transcript. Therefore, this motion is denied, there being no good cause to grant it."
There was no abuse of discretion in this case.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, J. IRION, J.