P. v. Giroux

Filed 11/20/07 P. v. Giroux CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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Keith Giroux pled guilty to one count of corporal injury to a spouse or cohabitant in exchange for the dismissal of charges of sexual battery and battery on a cohabitant, and an allegation that he had a prior serious felony conviction. At the sentencing hearing, defendant claimed he had made a mistake and requested the trial court allow him to withdraw his plea. The court denied his request.

On appeal, defendant now asserts there was good cause to withdraw his guilty plea and the trial courts refusal to grant this request violated his Sixth Amendment and Fourteenth Amendment rights. We conclude that the trial court properly exercised its judgment when it denied defendant the right to withdraw his plea.

FACTUAL AND PROCEDURAL BACKGROUND

On August 10, 2006, defendant was charged with sexual battery by restraint, corporal injury to a spouse or cohabitant, and battery on a cohabitant. Additionally, it was alleged that defendant had a prior serious felony conviction. Defendant pled not guilty to the charges and denied the alleged serious felony conviction.

On October 3, 2006, the prosecution attempted a plea bargain with defendant. Defense counsel informed the court that defendant had declined the prosecutions offer. The court questioned this decision, emphasizing, You have a strike. If you are convicted, your sentence will be doubled, and a 5 year sentence would become a 10 year sentence, and there would be no probation because probation is prohibited when someone is facing a strike sentence. Further, the court explained, [I]f you are sentenced to a [Penal Code section] 273.5 spousal battery, you have the right to be considered for probation in an unusual case. []  And even if probation were denied without the strike, your maximum sentence would be 4 years. Mid term would be 3 years. You would get day for day credit on any state prison sentence for a conviction of a 273. Defendant asserted his innocence and insisted on a jury trial. Shortly thereafter, defendant fell to the floor, saying that his knee had given out due to a medical condition. The court took a recess and during that time, defendant agreed to the prosecutions plea offer.

When the court returned from recess, the court acknowledged defendants change of plea. The court first confirmed that defendant was not in pain, then asked whether he had read, understood, and signed the felony plea form. Defendant answered [y]eah to the judges questions. Defendant also affirmed that he had initialed the appropriate boxes on the form and was entering the plea voluntarily. When asked how he pled to corporal injury to a spouse/cohabitant, defendant said [g]uilty. The plea form showed defendants initials next to the provision indicating he might serve the maximum sentence as a result of [his] plea: 4 years in state prison. Counsel stipulated to a factual basis for the charge and, per the plea agreement, the prosecution dismissed the remaining counts and the serious felony conviction allegation.

At the sentencing hearing on November 28, the court denied probation and sentenced defendant to the midterm of three years in state prison. Defendant immediately contested the courts judgment, claiming that the plea form he signed was invalid. Defendant stated, I cant even read. When I fell down that day when my leg gave out that day I was in pain and it was a mistake. I cant even read. I had two people coming to me telling me, oh, youre going to get a year, youre going to get probation, sign this, do that, and Im in a wheelchair. That was a mistake. And I never said I was guilty. I said, I guess so. The court authenticated the waiver of rights form completed on October 3 and found defendants plea was properly entered.

Earlier in the proceedings, the court ordered a psychological evaluation to determine whether defendant had the mental competency to stand trial. The resulting report confirmed that defendant was sufficiently competent.

Defendant filed a timely notice of appeal and requested the trial court issue a certificate of probable cause to challenge the validity of his guilty plea. The court granted this request.

DISCUSSION

Defendant contends that his guilty plea was defective because it was mistakenly entered. Accordingly, defendant asserts that the trial courts denial of his request to withdraw his plea agreement is a violation of his federal and state constitutional rights to trial by jury and due process of law. We disagree.

I

Standard Of Review

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. (People v. Shaw (1998) 64 Cal.App.4th 492, 495-496.) The discretionary ruling of a trial court on a motion to withdraw a guilty plea will not be disturbed on appeal unless an abuse of that discretion is clearly shown. (People v. Fratianno (1970) 6 Cal.App.3d 211, 221.) When discretionary power is vested in the trial court by statute, we find an abuse only if the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Jordan (1986) 42 Cal.3d 308, 316.) [T]he burden was on the defendant, . . . to present clear and convincing evidence that the ends of justice would be subserved by permitting [a] change [of] plea to not guilty. (People v. Beck (1961) 188 Cal.App.2d 549, 553.)

II

Defendant Fails To Demonstrate By Clear And

Convincing Evidence That He Mistakenly

Entered Into The Plea Agreement

Defendant argues that the trial court should have allowed him to withdraw his guilty plea for good cause pursuant to Penal Code section 1018. The relevant portion of the statute provides that the court may . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. (Pen. Code, 1018.) A defendant offers good cause for a plea withdrawal when he can show by clear and convincing evidence that mistake, ignorance, fraud, duress, or any other factor overcame the exercise of his free judgment. (People v. Cruz (1974) 12 Cal.3d 562, 566; People v. Ravaux (2006) 142 Cal.App.4th 914, 917.) Here, defendant claims he entered his guilty plea by mistake. However, this contention finds no support in the record.

Defendant states that his guilty plea was a mistake because he cannot read, has hearing problems, and had considerable difficulty understanding the charges against him. Defendants assertion that he cannot read is belied by the court record. When the court offered to provide defendant with a transcriptionist to transcribe the witnesses testimonies, neither defendant nor his counsel informed the court that defendant could not read. Additionally, when the court arranged for a monitor so defendant could read the court reporters transcription of the current proceeding, neither defendant nor his counsel indicated that defendant could not read. Nothing in defendants oral or written statements indicates that he is incapable of reading a plea form and understanding the terms of the agreement. Defendant initialed the appropriate boxes on the form, signed the form under penalty of perjury, and verbally acknowledged his understanding in open court. At no time did defendant express an inability to read or a failure to comprehend the nature of the charges against him.

Defendants contention that his hearing problem prevented him from properly understanding the plea agreement is similarly unavailing. Once the court became aware of the situation, the court made every effort to accommodate defendants disability. The court offered defendant assisted listening devices, a transcriptionist, a courtroom monitor on which defendant could read the transcription of the current proceeding, and regular opportunities to ask the court for greater accommodations. Moreover, the psychological evaluation revealed that, although defendant exhibit[ed] a number of times when he appeared not to understand, when the question was put clearly and loud enough for him to hear correctly, he was able to respond correctly. Consequently, we cannot find any evidence that defendants hearing disability prevented him from understanding the terms of the plea agreement.

Lastly, defendant contends he had difficulty understanding the charges against him. This claim is not supported by the court record, either. During his psychological evaluation, defendant was able to articulate the charges against him as spousal abuse and battery, and he understood the terms bail, plea bargaining, and probation. When the psychologist explained what it meant to be incompetent to stand trial, defendant denied any problem other than not being able to hear adequately. In court, defendant verbally acknowledged his understanding of the penalties and consequences of the plea, and conceded that he voluntarily entered into the agreement. Defendants plea, too, was entered with assistance of counsel. We presume the defense attorney properly reviewed the terms of the plea agreement and advised defendant of his rights, since defendant does not claim ineffective assistance of counsel and there is no evidence that counsel neglected his duties. Thus, defendant fails to prove that he did not understand the charges against him.

Although it was evident from his prior comments to the court that defendant was capable of speaking up on his own behalf, defendant failed to notify the court of his inability to read or his inability to understand the nature of the proceedings. The trial court was not required to accept defendants last-minute claim that his guilty plea was a mistake, particularly in light of the overwhelming evidence to the contrary. Accordingly, we conclude that the trial court did not abuse its discretion when it denied defendants request to withdraw his guilty plea.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

NICHOLSON , Acting P.J.

BUTZ , J.

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