Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F00640
NICHOLSON, Acting P.J.
Defendant Chan Saeteurn appeals after the trial court denied his motion to withdraw his no contest plea to one count of second degree murder and the admission of a personal firearm use enhancement. He argues the court abused its discretion because he entered the plea and admission at a time when his judgment was overcome by emotions in response to the threatened prosecution of his brother for offering him refuge after the murder. Defendant also proposes the court erred when it misadvised him that he faced a maximum parole period of five years instead of the actual lifetime parole period. Since the first argument is meritless and the second was forfeited, we affirm the judgment.
We will use the word “plea” in this opinion as shorthand for both the plea of no contest to the murder charge and the admission of the firearm use enhancement.
FACTS AND PROCEDURAL BACKGROUND
Defendant was driving one of two vehicles that stopped outside a duplex on Eddington Way in Sacramento on the evening of September 11, 2002. The occupants in the two cars exchanged words with several males standing outside the duplex, in a continuation of previous verbal exchanges between the two groups. Defendant retrieved his handgun from under the front seat, alighted and walked to the rear of the car, and fired at least three shots in the direction of the men who were standing. One of the bullets hit Tommy Xiong, who later died as a result of the gunshot. Law enforcement officers recovered three shell casings from the street, which matched shells later seized from defendant’s bedroom; gunshot residue was found on the driver’s side door handle of the car defendant was driving; at least four witnesses identified defendant as the person who fired the shots; and defendant later admitted to an acquaintance that he fired shots during the skirmish.
A warrant for defendant’s arrest was executed at the Fremont residence of defendant’s brother.
Defendant was charged by information with premeditated murder (Pen. Code, § 187 -- subsequent statutory references are to this code), and enhancements for the personal discharge of a firearm causing death (§ 12022.53, subd. (d)), for the personal discharge of a firearm, (§ 12022.53, subd. (c)), and for the personal use of a firearm. (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b).)
The case was resolved by a negotiated disposition shortly after trial started. Defendant entered a plea of no contest to second degree murder and admitted he personally used a firearm (§ 12022.5, subd. (a)(1)) in exchange for dismissal of the remaining enhancements and a stipulated sentence of 25 years to life in prison.
The agreed sentence was significantly less than defendant’s exposure to the 50 years to life term he faced if the jury convicted him of premeditated murder and found that he had personally discharged the firearm that caused Xiong’s death.
Following denial of defendant’s motion to withdraw his plea, and in accordance with the mutually agreed upon disposition, the court sentenced defendant on the murder conviction an indeterminate term of 15 years to life in prison, consecutive to a determinate term of 10 years in prison for the firearm enhancement.
DISCUSSION
I
Defendant argues that his plea was “‘an emotional response’ to his family’s repeated pressure upon him to enter a plea to avoid harm to them. Such emotions prevented [defendant] from rationally judging whether it was in his own best interests to enter such a plea and his plea was therefore involuntary.” He concludes that the court abused its discretion when it denied his motion to withdraw the plea.
Facts
Just over a week after the plea, defendant filed a handwritten motion requesting to withdraw it, which was buttressed two weeks later by another handwritten motion to withdraw the plea and request for appointment of counsel. In response, the court appointed Christopher Haydn-Myer as counsel to assist defendant with the preparation of a motion to withdraw the plea.
In the subsequent motion, defendant asserted that his father had pressured him into pleading no contest because the prosecutor had threatened to file charges against defendant’s brother for harboring a fugitive if defendant refused to plead guilty or no contest.
In a responsive affidavit, Robin Shakely, the deputy district attorney assigned to the case, declared that she had never threatened prosecuting defendant’s brother, or even talked about it, since the brother had been cooperative. Shakely added that Peters had approached her with an offer, not the other way around.
Peters filed a declaration stating that Shakely never threatened to prosecute defendant’s brother. He declared he had counseled defendant to take the plea based on defendant’s exposure to a sentence of 50 years to life in prison, and neither he nor his investigator ever communicated to defendant or his father that defendant’s brother would be prosecuted if defendant refused to accept the People’s offer.
The court held an evidentiary hearing, at which defendant’s father testified he believed the proposed “deal” was good for his son and told him so. Defendant’s father also testified that Peters told him to go to the jail and “convince” defendant to accept the plea offer. Defendant’s father, based on his interpretation of the word, “convince,” made up the story that his family was in danger and told defendant to accept the offer for that reason. Defendant’s father also testified it was “possible” he told defendant to accept the offer because his brother would be prosecuted, but he could not recall any detail. Defendant’s father testified no one told him that his family would be in danger if defendant did not accept the offer.
The court denied the motion and after noting it had considered the evidence for and against the motion, declared, “I do not believe that the defense has shown by clear and convincing evidence that there is good cause to withdraw the plea of no contest that was entered by [defendant]. [¶] I have evaluated the evidence. I do think there is a conflict in the information that’s been provided in support of the motion, and as such, the motion is denied.”
Analysis
Defendant argues “his change of plea to no contest, on the second day of jury trial, was induced by his ‘emotional response’ to his fear that his family members could be prosecuted for having assisted him during the time he evaded the charges that had been filed in Sacramento County.” Defendant acknowledges “there is some doubt in the record as to whether the prosecution ever did threaten charges,” or whether defendant’s father communicated such a threat to defendant, but he maintains that “it is clear from the record” that defendant’s father “put repeated pressure on [defendant] to accept a plea bargain and told [defendant] that his family would be in danger if [defendant] did not plead guilty.”
Section 1018 provides in relevant part: “On application of the defendant at any time before judgment . . ., the court may, . . . for a good cause shown, permit the plea of guilty [or no contest] to be withdrawn and a plea of not guilty substituted. . . . This section shall be liberally construed to effect these objects and to promote justice.” “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. [Citation.] Other factors overcoming defendant’s free judgment include inadvertence, fraud or duress. [Citations.] However, ‘[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.)
Although section 1018 is to be liberally construed, good cause for withdrawal of a guilty plea must be shown by clear and convincing evidence. (People v. Cruz (1974)12 Cal.3d 562, 566; People v. Huricks, supra, 32 Cal.App.4th at p. 1207.) Courts are especially cautious in allowing withdrawal of a negotiated plea. (People v. Weaver (2004) 118 Cal.App.4th 131, 146-147.) “A decision to deny a motion to withdraw a guilty plea ‘“rests in the sound discretion of the trial court”’ and is final unless the defendant can show a clear abuse of that discretion. [Citation.] Moreover, a reviewing court must adopt the trial court’s factual findings if substantial evidence supports them. [Citations.]” (People v. Fairbank (1997) 16 Cal.4th 1223, 1254; People v. Ramirez (2006) 141 Cal.App.4th 1501, 1506.)
Defendant asserts that “where there is substantial evidence that a plea is not voluntarily and knowingly entered, a trial court abuses its discretion in denying the request to withdraw such plea.” If this were the law, few guilty of no contest pleas could survive a defendant’s declaration stating that he misapprehended the facts and law, or he or she was pressured into entering the plea. The law, however, is to the contrary.
Initially, we note that defendant’s motion to withdraw the plea was based on defendant’s asserted emotional response to the threatened prosecution of his brother, not the falsehoods defendant’s father made up to persuade defendant to accept the People’s offer. With respect to the alleged threat to prosecute defendant’s brother, Shakely, the deputy district attorney on the case, declared she did not threaten to prosecute defendant’s brother, or communicate such an impression to Peters, defendant’s counsel. Peters, in turn, declared he did not communicate such a threat to defendant’s father, who could not even recall whether he told defendant of such a threat.
By failing to seek relief in the trial court based on other statements his father made, defendant failed to preserve any claim of error with respect to those statements. (Cf. People v. Turner (2002) 96 Cal.App.4th 1409, 1412-1413.) In any event, as with the purported threats concerning prosecution of his brother, defendant failed to establish a direct causal connection between any threats and the plea.
From what appears, defendant’s father, in his efforts to convince defendant to accept the offer, falsely told defendant that their family would be in danger if defendant did not accept the plea. Defendant’s father may have told defendant that his brother might be prosecuted. In any event, defendant says he believed his brother would be prosecuted. Aside from this slim evidence, and the ambiguous testimony of his father, all of which was disbelieved by the court, there is nothing else in the record to substantiate defendant’s assertions. That is, the court found no evidence that defendant’s emotions were so affected by his asserted, but mistaken, belief that his brother would be prosecuted, that he was deprived of the free exercise of his intellect when he decided to enter the no contest pleas. Similarly, there was no evidence of defendant’s emotional imbalance when, later, in open court, he gave negative responses to the court’s inquiries whether he was entering the plea due to promises or threats, or later still, when he actually entered the plea.
The plea in this case was negotiated and entered into after the commencement of a trial that could foreseeably result in a sentence twice as long as the one defendant was offered. The only reasonable inference to be placed on defendant’s reaction after that plea is that he was suffering from buyer’s remorse. That remorse prompted him to search for any ground to set aside the plea. Even so, he made the attempt, but failed to establish the necessary good cause by clear and convincing evidence. The court expressly determined as much. Manifestly, substantial evidence supports the court’s denial of the motion to withdraw. No abuse of discretion is shown. Consequently, we reject defendant’s argument.
For example, although not asserted on appeal, one of the alternative bases of defendant’s handwritten motions to withdraw the plea was that he was “misadviced [sic] by counsel that I will be released from prison 25 years later; and [¶] in truth, the chance for parole after 25 years later [sic] is a possibility rather than a sure deal.”
II
Defendant’s remaining contention is that the court erred when it advised him that he faced a maximum parole period of five years, when in fact he would be subject to a lifetime parole period.
Facts
At the hearing in which defendant entered his no contest plea, the court informed defendant that he faced a five-year parole if and when he was released from prison. The court added, in accordance with section 1192.5, that the plea agreement would not be binding on the court at the time of judgment and sentencing, but if the court “wanted to go beyond what we’ve agreed here today, then you would have a right to take back your plea, a plea of not guilty would be entered for you, and we will proceed to a speedy and public jury trial.”
While reviewing the transcript of the hearing, Shakely, the deputy district attorney on the case, noticed the court had misadvised defendant regarding the length of his parole, and sent a letter to the court mentioning the error. At sentencing, the court corrected its error, and correctly advised defendant he would be subject to lifetime parole. Defendant did not object, nor thereafter move to withdraw the plea on the basis of the misadvice regarding the length of parole.
In his handwritten motion to withdraw the plea, filed prior to the appointment of Haydn-Myer to represent defendant in connection with the motion, defendant asserted counsel had misadvised him regarding his earliest release date, and it appeared that he would have to serve at least 25 years in prison before being released, rather than being released after 25 years. Neither the handwritten motion nor the one filed by counsel on defendant’s behalf mentioned an error regarding the length of parole as a ground for withdrawing the plea.
Analysis
Defendant argues he was prejudiced by the court’s misadvice regarding the length of the parole period because he would not have entered the plea but for that misadvice.
In People v. Walker (1991) 54 Cal.3d 1013, the Supreme Court held that “when the only error is a failure to advise of the consequences of the plea, the error is [forfeited] if not raised at or before sentencing. Upon a timely objection, the sentencing court must determine whether the error prejudiced the defendant, i.e., whether it is ‘reasonably probable’ the defendant would not have pleaded guilty if properly advised. [Citation.]” (Id. at p. 1023; accord In re Moser (1993) 6 Cal.4th 342, 352.) Since defendant did not object at sentencing, he forfeited his right to challenge on appeal any error with respect to the misadvice, at plea, but corrected at sentencing, concerning the length of his parole period. (People v. Walker, supra, 54 Cal.3d at p. 1023.)
Even if he had objected at sentencing, the record does not support the assertion defendant now makes that earlier he “would have balked at the plea agreement had he realized that, not only would he not be eligible for parole for 25 years, but, in addition, even if he was eventually released, he would be subject to supervision and the terms of parole for the rest of his life rather than just five years.” Defendant, though, never mentioned the length of parole being a significant factor in his decision to enter his no contest pleas, even after the court corrected itself at sentencing, thereby notifying him, in person, of the correct length of parole supervision. On this record, defendant has not established prejudice.
The result would be the same even if defendant’s parole period were a material term of the plea agreement, since defendant was advised that he could withdraw the plea if the sentence varied from the plea agreement, in accordance with section 1192.5, and he did not object or thereafter move to withdraw the plea on that basis. (People v. Walker, supra, 54 Cal.3d at pp. 1025-1026.)
DISPOSITION
The judgment is affirmed.
We concur: RAYE, J., ROBIE, J.
Similarly, no mention of the misadvice was mentioned after judgment and sentencing, even though defendant’s request for a certificate of probable cause prompted a contested hearing.