Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050608513
Haerle, J.
I. INTRODUCTION
Defendant and appellant Jessie Lee Sims argues that the guilty plea he entered in this matter is invalid because it was based on misrepresentations by the court and counsel. We disagree and, accordingly, affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
In 2006, defendant was charged with receiving stolen property (Pen. Code, § 496, subd. (a) ). The information alleged that he had suffered two prior strikes (§ 667, subds. (b)-(i), 1170.12), two prior serious felony convictions (§ 667, subd (a)(1)), and six prior prison commitments (§ 667.5, subd. (b)).
Because the underlying facts in this matter are irrelevant to the sole issue raised by defendant on appeal, we omit them.
All further statutory references are to the Penal Code, unless otherwise indicated.
On January 16, 2007, defendant pled no contest to receiving stolen property and admitted one prior strike and one prior prison commitment. On January 16, 2007, before defendant entered his guilty plea, the trial court summarized the offer he was being given. The court also discussed what sentence defendant might face should he go to trial and be found guilty: “I don’t have any idea what will happen in the trial, if you will or will not be convicted. I am told that you are charged with more than one strike, so potentially it is a three strike offense. I am not saying that it’s going to be life top, but obviously three strikes is a life top if the strike priors were found to be true and valid. I don’t make any deals. [¶] . . . If you go to trial, if you are convicted of the priors or found true, I do the sentencing. I do an independent review. I cannot tell you what I would or would not do. But the five-year offer is the -- on the table now. [¶] Once we start the trial, it is off the table.”
After defendant made the standard plea affirmations, including an affirmation that he understood the consequences of his plea, he pled no contest to receiving stolen property, and admitted one strike prior and one prior, with the understanding that he would be sentenced to five years in state prison. The trial court found that the plea was made “knowingly, intelligently, and voluntarily. . . .”
About two weeks later, on January 29, 2007 (the date set for sentencing), defendant filed a motion to withdraw his guilty plea. On February 13, 2007, the court denied this motion. Defendant was sentenced to five years in prison.
This timely appeal followed.
III. DISCUSSION
Defendant’s sole argument on appeal is that his plea was invalid because, after he was given advice about the consequences of his plea, and after the trial court denied his motion to withdraw it, an appellate court, in a case that has since been accepted for review by our Supreme Court, issued an opinion that called into question one of the bases of his plea, namely, that his juvenile prior would be considered a strike under the Three Strikes Law. We disagree.
That case is People v. Nguyen (S154847, review granted Oct. 10, 2007). Defendant does not argue that counsel’s failure to advance the argument made in this case constituted ineffective assistance of counsel. His failure to do so might be attributed to the fact that such a claim has little likelihood of success, given that Nguyen had not been filed at the time he entered his plea.
“To be valid, guilty pleas must be based upon a defendant’s full awareness of the relevant circumstances and the likely consequences of his action, ‘“including the actual value of any commitments made to him by the court, prosecutor, or his own counsel . . . .”’ (Brady v. United States (1970) 397 U.S. 742, 748, 755.) A guilty plea cannot be accepted unless the court is satisfied defendant voluntarily entered into it with full understanding of the nature of the charges and the consequences of pleading guilty. (Boykin v. Alabama (1969) 395 U.S. 238, 243-244; In re Tahl (1969) 1 Cal.3d 122, 130.) . . . . [¶] The need for full understanding in entering a guilty plea is underscored by the rule with respect to withdrawing a plea, which allows a defendant to withdraw his plea ‘“for mistake, ignorance or inadvertence or any other factor overreaching defendant's free and clear judgment.”’ (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 797.) The law permits a guilty plea to be withdrawn ‘“if it fairly appears that defendant was in ignorance of his rights and of the consequences of his act, or was unduly and improperly influenced either by hope or fear in the making of it.”’ (People v. Campos (1935) 3 Cal.2d 15, 17.) ‘[I]t has been held that the least surprise or influence causing a defendant to plead guilty when he has any defense at all should be sufficient cause to permit a change of plea from guilty to not guilty.’ (People v. McGarvy (1943) 61 Cal.App.2d 557, 564.) A plea cannot stand on a serious misapprehension of the penal consequences of a plea bargain. (People v. Crumpton (1973) 9 Cal.3d 463, 468.)” (People v. McCary (1985) 166 Cal.App.3d 1, 9.)
At the time he entered his plea, defendant was given legally accurate information about the consequences of going to trial, namely that his juvenile prior would be considered a strike under the Three Strikes Law. In fact, defendant concedes that this information was correct, as he must. (See People v. Fowler (1999) 72 Cal.App.4th 581; People v. Bowden (2002) 102 Cal.App.4th 387, 394; People v. Smith (2003) 110 Cal.App.4th 1072, 1075; People v. Lee (2003) 111 Cal.App.4th 1310, 1316; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 834; People v. Buchanan (2006) 143 Cal.App.4th 139, 149.) Thus, at the time he entered his plea, defendant was not under any misapprehension of the penal consequences of his plea bargain, having been given advice that accurately reflected the state of the law at the time he entered into his plea.
Perhaps because he cannot argue that, at any time prior to sentencing, including the point at which he moved to withdraw his plea, the law was anything other than that a juvenile prior could be considered a strike under the Three Strikes Law, defendant advances the novel argument that if, at any time before a conviction becomes final, the law on which a plea was based changes, then a defendant’s plea must be considered invalid. This is simply not an accurate statement of the law governing the validity of a guilty plea. The validity of a plea must be assessed in light of the circumstances at the time it was entered into, not at some later point when the plea has already been entered and sentence imposed.
Further, even if the law was otherwise, defendant’s argument would still fail, for the simple reason that the law has not changed. Our Supreme Court has not weighed in on the issue of whether a juvenile conviction may be considered a strike for Three Strikes purposes. A significant number of appellate courts have confirmed the advice that defendant was given by counsel prior to entering his plea. The plea, therefore, is valid.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Lambden, J.