Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. 05CR8387
MORRISON, J.
Defendant Jason Lee Tucker pleaded guilty to corporal injury to the mother of his child. (Pen. Code, § 273.5, subd. (a); further undesignated statutory references are to the Penal Code.) Imposition of sentence was suspended and defendant was placed on probation for 48 months on the condition, among others, that he serve 90 days of incarceration with 19 days of credit for time served. The court issued a protective order preventing him from coming within 25 yards of, or contacting through a third party (except his attorney of record), the victim and the child that they share. Defendant obtained a certificate of probable cause.
On appeal, defendant contends (1) his motion to withdraw his plea was erroneously denied, and (2) the protective order requiring him to stay away from his son is overbroad. We shall affirm the judgment of conviction and remand for further proceedings on the protective order.
We broadly construe defendant’s notice of appeal from the judgment of conviction as including an appeal from the protective order.
Because defendant pleaded guilty, our statement of facts is taken from the probation officer’s report.
On July 30, 2005, at approximately 1:47 a.m., Amador County Sheriff’s Deputy Stone was dispatched to Highway 88 at Plasse’s Road regarding a report of a domestic battery. Upon his arrival, the deputy made contact with victim A.R., who related that she and defendant had dated during the past two years and had recently separated. They have a child in common in A.R.’s custody. There is a history of domestic violence including vandalism to A.R.’s vehicle. Defendant works at Plasse’s Resort, where he lives in employee housing. A.R. was bringing their son to defendant for a visit.
On July 29, 2005, approximately 11:00 p.m., A.R. arrived at defendant’s cabin and the couple got into an argument. Defendant was described as intoxicated, and his anger and actions increased A.R.’s desire to leave. Defendant wanted their son to stay, but A.R. did not want to leave him.
A.R. went to her vehicle to avoid defendant. Defendant approached the vehicle and threatened to break a window if A.R. did not return to the cabin. A.R. returned, and the argument continued.
Defendant told A.R. to leave. She responded that she would not do so without her son. Defendant grabbed A.R.’s arms in order to push her out of the cabin. She pulled away, and he hit her in the face with an open right hand, knocking her to the floor. He kicked her several times in the stomach while telling her to leave.
A.R. left the cabin and drove to Plasse’s Resort where she made contact with a female. At the female’s direction, A.R. drove to Highway 88 and Plasse’s Road while the female contacted law enforcement.
At about 3:20 a.m., Alpine County Sheriff’s Officer Fralick and Deputy Sheriff Stone went to defendant’s cabin and found him sitting on his bed. At their request, he came out of the cabin. He had a strong odor of alcoholic about him, and his eyes were red.
DISCUSSION
I
Defendant contends the trial court abused its discretion by denying his motion to withdraw his plea. We are not persuaded.
Background
When defendant entered his plea on August 11, 2005, he expressly waived his rights and indicated that he was entering his plea voluntarily.
On October 11, 2005, defendant filed a motion to withdraw his plea on the ground he was not adequately informed of potential defenses prior to entering his plea. He declared that his defense counsel had not discussed with him “any potential defenses such as self-defense or defense [of] others.” Defendant further asserted that defense counsel had spent very little time conferring with him before he entered the plea.
On cross-examination at the hearing on the motion, defendant admitted that he became concerned as to how his guilty plea would affect his pending family law matter regarding the child he shares with A.R.
Defense counsel testified, in direct contradiction to defendant, that on August 10, 2005, he met with defendant at the jail and specifically discussed defendant’s statements to the police, how they would affect his case, and the areas of self-defense and defense of others. Defense counsel further testified that the conversation lasted 45 to 60 minutes and that he believed defendant understood the consequences of his plea. When the plea was entered the next day, defense counsel spoke with defendant for an additional eight to ten minutes.
On cross-examination, defense counsel was asked whether he recalled having discussed with defendant the prosecution’s burden to negate self-defense. Defense counsel answered, “We went over the self-defense, and I went over the reasons why I did not believe that a self-defense would be successful. I don’t recall if I specifically told him that the prosecution has to prove that it is not self-defense.”
The trial court found defendant “to be not credible as relates to having no contact with [defense counsel] regarding his rights as alleged at entry of plea. Specifically, in his declaration he indicated, and stated on the stand, that he had not talked with him at all. That is disputed, it sounds like, by [defense counsel] in which [defense counsel] indicated he went to the jail on August 10th, reviewed the police report prior to going out there, reviewed it for the strength of the case and possible defenses; that he had considered possible self-defense and defense of others, but he wanted to go over the report with him at that time. No offer had been conveyed. [¶] In his contact, which was 45 minutes to an hour, he went over the entire report with the defendant. He went over self-defense, potential defense of others, particularly his child. He advised him of general procedures. And the Court is convinced that the defendant’s motion to withdraw a plea is based upon his concerns as relates to custody issues and buyer’s remorse.” The motion to withdraw the plea was denied.
Analysis
Section 1018 states 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 to be withdrawn and a plea of not guilty substituted.”
“‘Withdrawal of a guilty plea is left to the sound discretion of the trial court. A denial of the motion will not be disturbed on appeal absent a showing the court has abused its discretion.’ [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.] 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, 1207-1208.)
The defendant has the burden to prove good cause by clear and convincing evidence. (People v. Wharton (1991) 53 Cal.3d 522, 585.)
Defendant claims the trial court abused its discretion “because it failed to include [trial counsel’s] crucial admission [that he did not recall whether he had discussed the prosecution’s burden of proof] into its evaluation of the evidence. It focused on the inference that [defendant] was concerned about the impact of the plea on his pending child custody case without taking into consideration that [defendant] was induced to enter his plea without knowing that the success of the self-defense claim hinged as much on the credibility of [A.R.] as it did on his own credibility.” (Italics added.)
Defendant’s frivolous contention fails because it overlooks the applicable burden of proof. Even though the prosecution would have the burden to negate self-defense at trial, it was defendant’s burden to produce clear and convincing evidence in support of the motion to withdraw the plea. (People v. Wharton, supra, 53 Cal.3d at p. 585.)
But defendant never produced evidence, let alone clear and convincing evidence, that defense counsel met with defendant at the jail on August 10, 2005, but did not discuss the prosecution’s burden to negate self-defense at the meeting. Rather, defendant declared that there was no meeting, a claim the trial court rejected as not credible. Counsel’s testimony that he did not recall whether he “specifically told [defendant] that the prosecution has to prove that it is not self-defense” established only that the discussion was not remembered, not that it had not occurred. Defendant’s inference that the subject had not been discussed during the meeting is wholly speculative. “‘[E]vidence which produces only speculative inferences is irrelevant evidence.’” (People v. Babbitt (1988) 45 Cal.3d 660, 682, quoting People v. De La Plane (1979) 88 Cal.App.3d 223, 242.) Defendant has not shown that he entered his plea “without knowing” that the success of the self-defense claim hinged on A.R.’s credibility.
Defendant further contends that trial counsel could not have adequately advised him with respect to entry of the plea without first interviewing A.R. to assess her credibility. We disagree.
Defense counsel testified that he “went over the police reports with [defendant], read pretty much the entire report, specifically the statements that the officer says that he made to them. [Defendant] agreed that those statements were, in fact, accurate, what he told the officer.” Defense counsel further explained that “[m]ostly we talked about what his statements would do to his case. We talked about a potential trial. What his statements, how his statements may affect a jury and the outcome to the case and why he, in fact, did not contact the police himself, things of that nature.”
The trial court could deduce from defense counsel’s remarks that he believed the outcome of a jury trial would be determined primarily by defendant’s accurately reported statements to the officers, regardless of whether A.R.’s credibility was somehow vulnerable to attack. Under those circumstances, counsel’s failure to interview A.R. does not constitute good cause to withdraw the plea. There was no abuse of discretion. (People v. Huricks, supra, 32 Cal.App.4th at pp. 1207-1208.)
II
Defendant contends the protective order requiring him to stay away from his son is overbroad. This claim has merit.
Background
At the time defendant entered his plea, he objected to the inclusion of his son in the protective order precluding him from having contact with A.R. The prosecutor countered that the son was included in the order only pending sentencing. “At sentencing we can revisit whatever other orders are outstanding.” Defendant agreed to defer the issue to sentencing.
At sentencing, the prosecutor asked that the no contact order be continued. Defendant again objected to the inclusion of his son in the order. He noted that visitation with the child through a third party exchange was being arranged in order to avoid contact with A.R. The trial court orally indicated that it had no problem with such an arrangement.
The prosecutor then requested that the child be included in the no contact order only until a custody agreement is prepared in the domestic relations case. The court ordered that the child remain included in the order subject to further modification. The formal protective order states that it is effective for three years.
Analysis
A condition of probation will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486.) The Lent factors “are conjunctive, not disjunctive.” (People v. Lopez (1998) 66 Cal.App.4th 615, 624, fn. 4.)
Defendant argues “there is no relationship whatsoever between [his] offense and the order that [he] have no contact with his son. He was not charged with any offense against his son,” and there was “no allegation, much less any proof, that [he] had every [sic] committed an offense against any child.” We agree with this contention in part.
Even though the son was not the victim of this crime, he was the subject of the argument that precipitated the victim’s injuries. During the argument, defendant wanted their son to stay with him, but A.R. did not want to leave him with defendant. When defendant told A.R. to leave, she responded that she would not do so without her son. In response to her refusal, defendant grabbed her arms, hit her in the face with an open right hand and kicked her in the stomach several times. This record suggests that the parents are unable to deal with issues concerning their son in a safe and nonviolent manner, and that a stay-away order could reduce the chance of the crime’s reoccurrence. Thus, an order requiring him to stay away from A.R., either alone or with the child, would have a direct “relationship to the crime of which the offender was convicted,” and would “forbid[] conduct” that is “‘reasonably related to future criminality,’” as required by Lent. (People v. Lent, supra, 15 Cal.3d at p. 486.)
But the protective order is overbroad to the extent that it precludes defendant from visiting the child alone, in the absence of A.R. (E.g., People v. Hackler (1993) 13 Cal.App.4th 1049, 1058.) Nothing in this record suggests that defendant resorts to violence as a result of his contact and interaction with the child, or with anyone other than A.R. On remand the parties shall have an opportunity to present further evidence on the proper scope of the protective order, including any developments in the child custody proceeding.
DISPOSITION
The judgment of conviction is affirmed. The protective order is vacated and the matter is remanded to the trial court for reconsideration of the scope of the protective order.
We concur: SCOTLAND , P.J., ROBIE , J.