People v. Lee, A123842 (Cal. App. 11/13/2009)

• Decision Date: 13 November 2009
• Docket Number: A123842
• Parties: THE PEOPLE, Plaintiff and Respondent, v. SENECA D. LEE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. SENECA D. LEE, Defendant and Appellant.

A123842

Court of Appeals of California, First Appellate District, Division One.

November 13, 2009

Appeal from the Solano County, Super. Ct. No. FCR-256200

Not to be Published in Official Reports

DONDERO, J.

Defendant entered a negotiated plea of no contest to possession for sale of methamphetamine (Health & Saf. Code, § 11378). After defendant's motion to withdraw the plea was denied, he filed this appeal, which reasserts his challenge to the validity of the plea. We find that the plea was knowingly and voluntarily entered, and affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY¹

On May 28, 2008, defendant was driving a 1998 Nissan Maxima that was detained by Suisun City Police Officers for a traffic violation. During a subsequent search of the vehicle the officers discovered two baggies of marijuana, three plastic baggies containing ecstasy pills, and a digital scale. A plastic baggie of cocaine was found in defendant's pocket. Defendant claimed the cocaine was for his personal use, although he admitted "selling some pills and marijuana."

Defendant was charged with two counts of transportation of a controlled substance (Health & Saf. Code, §11379, subd. (a)), two counts of possession for sale of a controlled substance (Health & Saf. Code, §§ 11351, 11378), transportation of not more than 28.5 grams of marijuana ((Health & Saf. Code, § 11360, subd. (b)), and possession of marijuana for sale (Health & Saf. Code, § 11359). After defendant filed a motion to suppress evidence, he appeared at the hearing on the motion and entered the no contest plea to the single charge of possession for sale of methamphetamine. He signed and initialed a waiver of rights form in which he attested that he had been advised all of his constitutional rights and the consequences of the plea, including the maximum term of punishment of three years in state prison. The form also specifies that the only promises made to him were no "initial state prison" term and dismissal of the remaining charges. In response to the trial court's inquiry at the hearing, defendant stated that he either read the change of plea form or it was read to him by counsel, and he understood and waived his constitutional rights. The court found that the plea was knowing and voluntary. At the sentencing hearing on October 20, 2008, imposition of sentence was suspended and defendant was placed on formal probation for three years, on the condition, among others, that he serve 180 days in county jail.

Defendant moved to withdraw his plea on November 25, 2008, on the ground that he was not informed he would "incur any time in custody" as part of his probation. Defendant testified and filed a supporting declaration in which he asserted that his appointed attorney, Marie Alex, urged him to "take the plea deal" to receive a grant of probation, and informed him that he "would not get any jail time." Instead, according to defendant, his attorney told him he "would get six months ankle bracelet and no jail time." Defendant also testified, as he stated in his declaration, that Alex did not read the change of plea form to him, and he did not read the provisions of the form before signing it. Defendant felt that he was induced to take the plea by his attorney for fear that the deal offered by the prosecution would be "off the table."

Alex testified at the hearing on the motion to withdraw the plea that during meetings with defendant both in and out of the courtroom she did not guarantee that he would avoid a term in jail or receive only an "ankle bracelet." According to Alex, she read the plea form to defendant, as was her custom. She "thought" defendant read the plea form, but was not sure. On the date the plea was entered, Alex told defendant that "he had a good likelihood of getting ankle monitoring," but the plea "deal did not say no jail." She directly contradicted defendant's assertions in his declaration and testimony that she failed to read him the plea form or represented to him that he would "not get any jail time." She also explained to defendant that the "plea deal" would "be off the table" if the motion to suppress evidence or the preliminary hearing was heard, and he would be "facing all of the counts rather than just one."

At the conclusion of the hearing the trial court found that defendant knowingly and voluntarily entered his plea, and denied the motion to withdraw the plea. This appeal followed.²

DISCUSSION

I. The Validity of the Plea.

Defendant contends that his "plea was constitutionally deficient" because the trial court failed to advise him of "the direct and primary consequences of the plea." He asserts that the written plea form "does not contain any provisions as to the actual punishment that would, or might, be imposed," and before he entered the plea neither the court nor his attorney specifically advised him at the hearing that he could receive a "180 day county jail sentence." He also objects to the failure of the court and counsel to question him "about the contents of the plea agreement at the time the plea was entered." He therefore argues that the trial court erred by denying his motion to withdraw the plea.

A plea, like any other waiver of constitutional rights, "may be accepted by the court only if knowing and intelligent — made with a full awareness of the nature of the right being waived and the consequences of the waiver. In addition, the waiver must be voluntary." (People v. Smith (2003) 110 Cal.App.4th 492, 500; see also New York v. Hill (2000) 528 U.S. 110, 114-118; Colorado v. Spring (1987) 479 U.S. 564, 573.) When a defendant elects to waive the fundamental constitutional rights that accompany a trial by pleading guilty "the record must reflect that the defendant did so knowingly and voluntarily — that is, he or she was advised of and elected to refrain from exercising the fundamental rights in question." (People v. Collins (2001) 26 Cal.4th 297, 308.) Under the governing test, a plea is valid "if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances." (People v. Howard (1992) 1 Cal.4th 1132, 1175; see also North Carolina v. Alford (1970) 400 U.S. 25, 31; People v. Torres (1996) 43 Cal.App.4th 1073, 1082; People v. Knight (1992) 6 Cal.App.4th 1829, 1831-1832.)

"When a defendant pleads guilty or nolo contendere, whether or not the plea is pursuant to a plea bargain, he must be advised of and waive his rights of self-incrimination, confrontation and jury trial [citations], and must be advised of the direct consequences of the plea, including the maximum possible penalty. [Citation.] [¶] The validity of a guilty or nolo contendere plea requires a record demonstrating that the defendant understood the nature of the charges and the direct consequences of conviction, including the possible range of punishment." (People v. Lytle (1992) 10 Cal.App.4th 1, 4; see also People v. Zaidi (2007) 147 Cal.App.4th 1470, 1481; People v. Crosby (1992) 3 Cal.App.4th 1352, 1354-1355.) "`The traditional "direct consequences" of a plea are those which follow inexorably from the plea. . . .' [Citation.]" (People v. Barella (1999) 20 Cal.4th 261, 270.)

A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. (In re Vargas (2000) 83 Cal.App.4th 1125, 1142; People v. Castaneda (1995) 37 Cal.App.4th 1612, 1616-1617.) "Section 1018 provides that, `. . . 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.' Good cause must be shown for such a withdrawal, based on clear and convincing evidence." (People v. Mickens (1995) 38 Cal.App.4th 1557, 1561; see also People v. Hunt (1985) 174 Cal.App.3d 95, 102-103.) "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." (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) "The burden is on the defendant to present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty." (People v. Shaw (1998) 64 Cal.App.4th 492, 496.) "When the ground for withdrawing the guilty plea is the omission of advisement of the consequences of the plea, the defendant must show ignorance: that he was actually unaware of the possible consequences of his plea." (People v. Castaneda, supra, at p. 1619.) And where, as here, judgment has been entered, withdrawal of a plea is an "`exceptional remedy,'" granted "`only upon a strong and convincing showing of the deprivation of legal rights by extrinsic causes.' [Citation.]" (Id. at p. 1617.)

"When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] On appeal, the trial court's decision will be upheld unless there is a clear showing of abuse of discretion." (People v. Shaw, supra, 64 Cal.App.4th 492, 495-496; see also People v. Mickens, supra, 38 Cal.App.4th 1557, 1561.) "Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged." (People v. Hunt, supra, 174 Cal.App.3d 95, 103.)

Defendant's argument is essentially that the trial court and his attorney either inadequately advised him of the consequences of the plea — that is, a potential county jail term as a condition of probation — or somehow failed to comply with a representation made that he would not receive any term of incarceration. While defendant was not advised of the...