Filed 2/23/18 P. v. Anguiano CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

DORIAN ANGUIANO,

Defendant and Appellant.
D071738



(Super. Ct. No. SCS288488)

APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Dorian Anguiano's appeal follows the denial of his motion to withdraw his guilty plea. He contends his plea was based upon mistake because his retained counsel informed him he could withdraw his plea before sentencing. Following an evidentiary hearing, the court denied the motion to withdraw the plea. We conclude the trial court did not abuse its discretion in denying the motion, and we affirm the judgment.
BACKGROUND
A
On the evening of August 6, 2016, surveillance video showed Anguiano and the victim drive into the parking lot of a motel where he had rented a room. Once parked, Anguiano struck the victim in the face. The victim slumped against the passenger side window for several seconds. When the victim roused, the victim appeared upset and attempted to strike Anguiano numerous times as they talked. Anguiano deflected most of the strikes with his arm.
When the victim got out of the car, Anguiano also exited the car and walked quickly around the back of the car to the passenger side. While the victim's back was turned toward him, Anguiano kicked the victim's back on the left side, knocking the victim to the ground. As the victim lay face down on the ground, Anguiano kicked the left side of the victim's head causing the head to snap back. The victim lay motionless on the ground as Anguiano locked the car and walked away.
The motel manager and his wife called the police after they witnessed the incident through a closed-circuit television feed. When the motel manager's wife confronted Anguiano, and told him they were calling the police, Anguiano returned to the car. He lifted the victim's limp body from the ground, falling backwards with the victim at one point. He put the victim in the car and drove away quickly.
Based upon the description of the car and a partial license plate number provided by the motel manager, police officers located Anguiano's car at Anguiano's home approximately four miles from the motel. Officers found the victim sitting in Anguiano's car covered in dried blood, which the victim was trying to clean. The victim was conscious and refused medical treatment. The victim had an abrasion of about one and a half inches in diameter on the left cheekbone, a large lump above the left eyebrow, and a cut to the left corner of the mouth. The victim's face was swollen. The victim had been in an "off and on relationship" with Anguiano for about three years. The victim did not want to get Anguiano in trouble.
The victim did not remember what happened after the victim and Anguiano left a restaurant that evening. The victim acknowledged a possible loss of consciousness. The victim called the police on 10 other occasions about domestic violence by Anguiano. Anguiano was arrested for domestic violence at least once.
Three days later, the victim confirmed being at the motel, but could not remember what happened during the incident. The left side of the victim's face, from the cheekbone to the chin, was still bruised. The victim's ribs and head still hurt. The victim had difficulty walking and breathing.
B
Anguiano pleaded guilty to inflicting corporal injury upon a spouse or a roommate (Pen. Code, § 273.5, subd. (a); count 2) and admitted allegations he inflicted great bodily injury in committing the crime (Pen. Code, §§ 1192.7, subd. (c)(8), 12022.7, subd. (e)). In exchange for the plea agreement, the People dismissed charges for kidnapping (Pen. Code, § 207, subd. (a); count 1) and assault by means likely to cause great bodily injury (Pen. Code § 245, subd. (a)(4); count 3) along with an allegation of inflicting great bodily injury relating to count 3. Anguiano agreed to a stipulated sentence of seven years with respect to count 2.
On the plea form, Anguiano admitted, "I pushed/kicked [the victim] to the ground, after which I kicked [the victim] in the face causing serious injury. … I personally inflicted great bodily injury upon [the victim], someone I had a dating relationship with."
At the change of plea hearing, the court confirmed Anguiano read and understood the plea form. He understood the terms of the plea and talked to his lawyers about his rights. When asked if any other promises or threats were made to get him to plead guilty, Anguiano stated, "No, none." Anguiano pleaded guilty. The court found the plea was knowingly, voluntarily, and intelligently made.
C
Prior to sentencing, Anguiano moved to withdraw his plea. He contended his former attorney advised him he could withdraw his plea before sentencing. He stated if the attorney had not assured him he could take his guilty plea back before sentencing, Anguiano would not have entered the plea.
The court heard evidence from Anguiano, the victim, and Anguiano's former attorney. The former attorney stated he did not promise Anguiano could withdraw his guilty plea.
The court denied the motion noting the court had the benefit of presiding over the preliminary hearing, watching the video, and accepting the change of plea. The court stated it believed the attorney's statement over that of Anguiano. It found no good cause to withdraw the plea because there was no mistake or later discovered evidence. Pursuant to the terms of the agreement, the court sentenced Anguiano to seven years in state prison.
DISCUSSION
"A trial court may allow a defendant to withdraw his or her guilty or no contest plea under [Penal Code] section 1018 for good cause shown by clear and convincing evidence." (People v. Archer (2014) 230 Cal.App.4th 693, 702.) " 'Good cause' means mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free judgment and must be shown by clear and convincing evidence. [Citation.] The grant or denial of such a withdrawal motion is 'within the sound discretion of the trial court and must be upheld unless an abuse thereof is clearly demonstrated.' [Citation.] We are required to accept all factual findings of the trial court that are supported by substantial evidence." (People v. Ravaux (2006) 142 Cal.App.4th 914, 917 (Ravaux).)
The court found Anguiano's testimony not credible and, instead, found credible the attorney's testimony that he did not tell Anguiano he could withdraw the plea. The court stated, "I do have the benefit of being the judge who took the plea. I did have the interaction with Mr. Anguiano. I actually—and since I was the judge for the preliminary examination, I have seen the tape as well. I was satisfied at the change of plea, where I did have a conversation with Mr. Anguiano, where he was under oath, and he did tell me that he was making the change of plea. His remorse for making the plea at this time is not a basis to change the plea. [¶] [The attorney] is a very experienced lawyer. He denied telling Mr. Anguiano that this plea was … temporary, and Mr. Anguiano could just withdraw it at any time without showing cause. I just cannot believe that conversation took place. I believe [the attorney's] testimony that it did not take place."
When Anguiano said he "unintentionally dropped" the case, the court replied, "I understand your side, … but I don't believe it, Mr. Anguiano." "The court may … take into account the defendant's credibility and his interest in the outcome of the proceedings." (Ravaux, supra, 142 Cal.App.4th at p. 918.)
The court's conclusion was also supported by Anguiano's testimony at the change of plea hearing when he told the trial court no promises had been made, other than those reflected within the terms of the plea agreement, to get him to plead guilty.
We do not accept Anguiano's invitation to parse the words of his former defense attorney to suggest he only denied telling Anguiano he could not withdraw the plea "at any time" or "when he was pleading guilty" whereas Anguiano testified the attorney told him he could withdraw the plea "before the sentencing hearing." The court resolved the factual disputes against Anguiano. Taking the attorney's testimony as a whole, it was reasonable to infer he did not tell Anguiano he could withdraw the guilty plea. "Where two conflicting inferences may be drawn from the evidence, it is the reviewing court's duty to adopt the one supporting the challenged order." (People v. Hunt (1985) 174 Cal.App.3d 95, 104.) Because there was a reasonable basis, supported by substantial evidence, for the court's decision to conclude there was no good cause to withdraw the plea, the court did not abuse its discretion. (See People v. Perez (2015) 233 Cal.App.4th 736, 742.)
Whether Anguiano was upset about serving prison time and vacillated about accepting the plea is not relevant to our analysis because he decided to accept the plea deal to serve seven years, understanding his exposure was potentially higher. "The fact that he may have been persuaded, or was reluctant, to accept the plea is not sufficient to warrant the plea being withdrawn." (Ravaux, supra, 142 Cal.App.4th at p. 919.) A valid plea may not be set aside because a defendant changed his or her mind. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)


DISPOSITION
The judgment is affirmed.



MCCONNELL, P. J.

WE CONCUR:



BENKE, J.



IRION, J.