Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF125568. Edward D. Webster, Judge.
Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant was sentenced to state prison after the trial court gave an indicated sentence. He appeals from the sentence and challenges the denial of his motion to vacate his guilty plea, which challenged the validity of the plea.
At the time of the plea, the parties stipulated that the factual basis for the plea was established by the prosecutor’s trial brief. However, that trial brief is not a part of the record on appeal. Thus, we will refer to the testimony adduced at the preliminary hearing for the background information.
On August 19, 2005, Jennifer L., mother of the victim, took her two-year-old child to a hospital for treatment of second degree burns to his face and neck, as well as first degree burns on his chest. A detective reported to the hospital and observed the child, who also had a laceration on his head, two small bruises on the buttocks, and a scratch or bruise on his neck. The treating physician explained the burns were caused by some type of liquid, but probably were not caused by grease.
The detective interviewed the child’s mother and defendant, who was involved in a relationship with the mother but was not related to the child. The mother explained she had spent the morning at court, leaving her three children, including the victim, with babysitters. Mother returned at noon, checked on the children, and left again with defendant to pawn some CD’s and DVD’s for rent money. According to the child’s mother, they returned to the residence at approximately 5:00 p.m. to find her two older children playing in the yard, and the victim crying in the bedroom on the bed. She immediately noticed the child’s facial injuries, but had no idea how they occurred.
The detective also interviewed the defendant, who appeared to be under the influence of a stimulant. Defendant’s version of the events was consistent with that of the child’s mother up to the point where they returned to the residence at 5:00 p.m. However, according to defendant, when he and the child’s mother returned, he went to the garage to hang out with some friends when he heard the baby cry. He called for the child’s mother to get the baby, not realizing she had left. He went to the bedroom to get the child, and found the baby’s diaper was soiled, but that the child was otherwise uninjured.
Defendant took the baby into the bathroom to clean him up, and ran a bath. Defendant tested the water, found the water temperature to be cool to warm and put the baby in the bath. Defendant then scooped a cup of water to pour over the child’s head, but when the water hit the child’s head, the baby started screaming. Defendant saw that the skin was peeling off the child’s face, and took the baby out of the bath. After the mother returned home, she took the child for medical attention.
Defendant was charged with causing or permitting a child to suffer physical pain or mental suffering, under circumstances likely to produce great bodily injury (Pen. Code, § 273a, subd. (a), count 1), willful infliction of cruel or inhuman corporal punishment resulting in a traumatic condition (Pen. Code, § 273d, subd. (a), count 2), and a misdemeanor charge of being under the influence of methamphetamine. (Health & Saf. Code, § 11550, subd. (a), count 3.) With respect to counts 1 and 2, it was further alleged that the defendant had personally inflicted great bodily injury. (Pen. Code, §§ 12022.7, subd. (d), 1192.7, subd. (c)(8).)
In his brief, defendant mistakenly refers to the enhancement allegation as an allegation under the Three Strikes law.
After numerous continuances, the matter was finally called for trial and the parties answered ready on October 1, 2007. On October 2, 2007, following discussion between the court and counsel about in limine motions, the defendant withdrew his plea of not guilty. In return for an indicated sentence of nine years, defendant pled guilty to all three counts, and admitted the great bodily injury enhancements. He also waived his appeal rights. However, on November 1, 2007, defendant orally informed the court he wanted to withdraw his plea of guilty.
The formal motion to withdraw the plea was filed on December 11, 2007, and asserted defendant was unaware that his trial counsel had been unable to interview an exculpatory witness, the six-year-old brother of the victim. Defendant did not realize until the day of trial that the witness would not appear, and felt pressured by his attorney to accept the court’s indicated sentence and pled guilty. The trial court denied the motion. Defendant was sentenced to nine years in prison and appealed, requesting a certificate of probable cause in order to challenge the validity of his plea. On March 5, 2008, the court granted the certificate of probable cause.
DISCUSSION
At his request, this court appointed counsel to represent defendant on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, but he has not done so.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error. First, we conclude the denial of defendant’s motion to withdraw his plea of guilty was not an abuse of discretion. The fact a defendant may have been persuaded, or was reluctant, to accept a plea is not sufficient to warrant the plea being withdrawn. (People v. Ravaux (2006) 142 Cal.App.4th 914, 919; see also, People v. Hunt (1985) 174 Cal.App.3d 95, 103; People v. Urfer (1979) 94 Cal.App.3d 887, 893.) Even if we accepted defendant’s assertion that his trial attorney failed to secure exculpatory testimony from the six-year-old sibling of the victim, it would not change our conclusion, given that the version of the incident attributed to the six-year-old sibling conflicted with the version given by defendant in multiple interviews with police.
Nor do find that trial counsel’s failure to interview the six-year-old witness constituted ineffective assistance of counsel, where, given the inconsistency of the statement attributed to the child with the defendant’s version of the events, there is no reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674].)
We have completed our independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P. J., Miller, J.