Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. CRM000027 Brian L. McCabe, Judge.
Thomas O. Gillis, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Detjen, J. and Franson, J.
This is an appeal from a grant of probation after defendant pled no contest to two felony counts. We conclude the trial court did not abuse its discretion in denying defendant’s request to withdraw his no contest plea. Accordingly, we affirm the judgment of conviction and the order for probation.
FACTS AND PROCEDURAL HISTORY
Defendant Randal Loy Wright leased a Mercedes-Benz automobile. After he fell behind on the lease payments, he returned the car to the dealership. Thereafter, he had the car removed from the dealer’s premises, had the tracking device removed from the car, and had the car relocated to Mexico.
Defendant was charged in the information with theft of a vehicle (count 1, Veh. Code, § 10851, subd. (a)), fraudulent removal or concealment of leased property (count 2, Pen. Code, § 504a), and making a fraudulent insurance claim (count 3, Pen. Code, § 550, subd. (a)(5)).
On August 20, 2009, the date scheduled for jury trial, defendant entered a plea of no contest to counts 1 and 2 in exchange for dismissal of count 3, probation, and a maximum of six months in the county jail. Defendant completed an advisement of rights form on which, among other things, he initialed a box beside the statement, “I am not under the influence of any drugs, alcohol or medication.” After the statement, “The following promises have been made to me in return for my plea:, ” defendant printed, “Indicated sentence - I will receive felony probation with not more than 6 months county jail which I may serve in an alternate program, including my misdemeanor VOP. While on probation and pending sentence, I may travel to and from Mexico but must personally appear at probation on P.O.’s request. [¶] … [¶] My passport will be released to me forthwith. If my passport is needed as evidence in a future case I stipulate that a copy of my passport can be used as an original.” Sentencing was scheduled for October 5, 2009.
On October 5, 2009, defendant appeared with new counsel. Thereafter, the sentencing hearing was repeatedly continued. On February 9, 2010, defendant filed a motion to set aside his no contest pleas. The motion stated that it was based on defendant’s declaration, filed at the same time as the notice of motion. The declaration asserted that defendant’s former attorney had been constitutionally ineffective. Defendant said his counsel had been paid a flat fee for handling the case and, as trial approached, began to pressure him to accept a plea bargain. His counsel “insisted I would not have to serve jail time.” Defendant also said he was “under extreme anxiety and stress” because of pending legal and financial problems. He said that, on the day he entered the no contest pleas, he was taking diazepam, a generic equivalent for Valium, for the stress. “On the day of my plea, I believe I had an adverse reaction to this drug which is known to cause abnormal behavior and amnesia as a side effect.” He attached a page from a medical reference. He said that “physical pain and my use of Diazepam on the morning of my trial impaired my judgment to the point that my plea was not freely entered.” Finally, he claimed that his attorney had not advised him at the time of his change of plea that the felony convictions could be used to impeach him if he testified at a trial arising from charges being filed against him for the murder of his wife. Defendant stated he was not guilty of the charges and implied that he would not have entered the no contest pleas in the absence of the enumerated circumstances.
The prosecutor filed a written opposition to the motion. The opposition relied primarily on defendant’s statements in the advisement of rights form. The opposition stated: “The People hereby reserve its request to a hearing on the allegation of ineffective assistance of counsel on the part of [defendant’s original retained attorney].”
By written order filed April 1, 2010, the trial court denied the motion. The trial court concluded that the record of the change of plea hearing showed that the plea was knowingly and intelligently entered by defendant and that defendant’s motion was based on “post-plea remorse” arising from the effect of the felony convictions on his ability to testify without impeachment in any prosecution arising from future murder charges.
At the sentencing hearing on April 6, 2010, the trial court suspended imposition of sentence, placed defendant on probation for three years, and imposed six months of local custody.
Defendant filed a timely notice of appeal. He obtained a certificate of probable cause based on his assertion of error in the denial of his motion.
DISCUSSION
Defendant’s sole contention on appeal is that the trial court erred by not conducting an evidentiary hearing on the motion. His brief states: “Here, it would have been very easy to hold an evidentiary hearing, calling as witnesses the persons present at the taking of the plea to elicit from them their observations of the Appellant’s behavior, and whether he appeared to be under any undue stress, or otherwise acting abnormally. The trial court’s failure to do this deprives the appellate court of the ability to make an accurate determination of the issues presented and is an abuse of its broad discretion.”
Defendant did not suggest in his motion in the trial court that he had other evidence he wished to present. He did not take the position that he wished to present other evidence (such as testimony from his original attorney). He did not proffer any additional evidence on a motion for reconsideration or, informally, at the sentencing hearing that occurred five days after the ruling on his motion to set aside the plea. In other words, the present record does not establish that the lack of an evidentiary hearing prejudiced the defendant. Additionally, his failure to request such a hearing, or tender such evidence in the trial court, forfeits the issue.
In any event, as the Supreme Court stated in People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 201: “‘There is simply no authority for the proposition that a trial court necessarily abuses its discretion, in a motion proceeding, by resolving evidentiary conflicts without hearing live testimony.’ [Citation.] [¶] Petitioner cites no authority … requiring courts to hold live evidentiary hearings … on plea withdrawal motions.”
In the present case, as in People v. Ravaux (2006) 142 Cal.App.4th 914, 918, the trial court observed defendant’s demeanor at the change of plea hearing and rejected the claim that defendant’s mental state was in some manner impaired at that hearing. “It is entirely within the trial court’s discretion to consider its own observations of the defendant in ruling on such a motion.” (Id. at p. 918; see also People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) Further, as in Ravaux, the record amply demonstrates that defendant had a full opportunity to consult with counsel prior to his entry into the plea agreement. (People v. Ravaux, supra, 142 Cal.App.4th at pp. 918-919.)
Defendant has not established that he requested an evidentiary hearing on his motion to set aside the plea, that he had any additional evidence to present at such a hearing, or that the trial court abused its discretion in deciding the motion on the pleadings and the record before it.
DISPOSITION
The judgment of conviction and the order for probation are affirmed.