P. v. Butler

Filed 5/19/08 P. v. Butler 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of San Diego County, Esteban Hernandez, Judge. Affirmed.

Barry Butler entered a negotiated guilty plea to first degree residential burglary (Pen. Code,  459/460)^[1]and admitted that another person, other than an accomplice, was present in the residence during the commission of the burglary within the meaning of section 667.5, subdivision (c)(21). Butler also admitted he had suffered a prior strike conviction ( 667, subds. (b)-(i)) and a prior serious felony conviction ( 667, subd. (a)).

The plea bargain provided for a stipulated nine-year sentence, with Butler serving 85 percent of the term before he would be eligible for parole, and included a concurrent two-year prison sentence for a theft charge to which Butler pleaded guilty in superior court case No. SCS207168.

Before sentencing, Butler obtained new counsel and sought to withdraw his guilty plea. The trial court denied Butler's motion to withdraw his guilty plea and sentenced him to nine years in prison. Butler requested and received a certificate of probable cause from the trial court. ( 1237.5.)

FACTS

On February 4, 2007, Chula Vista police officers responded to a report of a possible burglary in progress at a duplex. When they arrived, the officers observed Butler leaving the residence carrying a duffel bag. The tenant of the residence, who had reported the possible burglary, was outside the building and identified some of the items in the duffel bag as her property.

Butler admitted entering the residence, but said it was unlocked and appeared to be abandoned. Butler said he was waiting there for his girlfriend to pick him up. There were only boxes and a mattress in the residence.

On February 14 Butler accepted the plea bargain. In May new counsel for Butler filed a motion to withdraw his guilty plea to the burglary. At the June 14 hearing on the motion, Butler testified that he talked to his appointed counsel once before pleading guilty, and during this five-minute conversation, which took place in a holding tank in the courthouse, his attorney, Tara Jones, told him: "[T]here was no chance of beating it, [the] juvenile history is bad, and if you take it to trial, you will lose and there is no hope, no way [a]round [it]." Butler testified his attorney did not ask him any questions and did not inform him of any potential defenses. Butler further testified he would not have pleaded guilty if Jones had told him that he had a potential defense to the first degree burglarynamely that the residence was not inhabited.

On cross-examination, Butler admitted that: (1) he spoke to Jones about the burglary case before he pleaded guilty; (2) Jones discussed with him his criminal history; (3) Jones advised him that he would have problems testifying at trial because of his criminal record; and (4) Jones said there was a substantial risk he could lose at trial because he could not testify. Butler also conceded Jones told him that he faced a maximum prison term of 17 years for the burglary and three years in the theft case.

Jones testified that she first spoke with Butler by telephone for approximately 45 minutes to one hour on February 10. On this occasion, Jones telephoned Butler at the jail. Jones testified she discussed with Butler his two pending cases, his sentencing exposure and his criminal historyincluding the prior strike conviction, the prior serious felony conviction and his parole status.

According to Jones, she also discussed potential defenses in each of the pending cases. With respect to the burglary case, Jones and Butler discussed the police report that stated the victim was outsidenot insidethe residence when she called the police, and Butler's impression that the dwelling was uninhabited. Jones said Butler told her that he was inclined to proceed to the preliminary hearing, but wanted to see what the offer was. They agreed to delay making a decision until his next scheduled court date.

On February 14 Jones met with Butler in a holding tank cell and told him about the plea bargain she had negotiated. According to Jones, she spent an hour with Butler discussing his cases and the plea bargain. At some point during the discussion about the case, Butler mentioned that there was a defense that the dwelling was uninhabited, and Jones assured Butler that if he decided to go to trial, she would present that.

After Butler decided to accept the plea bargain, Jones discussed the change of plea form with Butler in detail. Jones testified that Butler stated to her that everything on the formincluding the factual basis for the pleawas true.

Butler testified again on surrebuttal and admitted that Jones telephoned him at jail on February 10. However, Butler said the telephone call lasted about three minutes. Butler also testified that Jones did not advise him on either occasionFebruary 10 or February 14that if the dwelling was uninhabited there was a potential defense to the first degree burglary count.

The court denied Butler's motion to withdraw his guilty plea, finding Jones was more credible than Butler and sentenced him in accordance with the plea bargain.

DISCUSSION

Butler contends the court erred by denying his motion to withdraw his plea because he demonstrated that he had pleaded guilty as a result of his trial counsel's ineffective representation.

Section 1018 permits the trial court to allow a defendant to withdraw a guilty plea on a showing of good cause. To establish good cause, a defendant must show the plea was entered as a result of mistake, ignorance, fraud, duress, inadvertence or any other factor overcoming the exercise of his or her free judgment. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) A plea may not be withdrawn merely because the defendant changed his or her mind. (Ibid.)

The standard of review for a ruling denying a motion to withdraw a plea is the abuse of discretion standard. (People v. Weaver (2004) 118 Cal.App.4th 131, 146.) " 'Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.' " (Ibid.) A defendant must clearly demonstrate the trial court's decision was arbitrary, unreasonable or not supported by the facts. (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796-797.)

If a defendant pleaded guilty as a result of ineffective assistance of counsel, " 'the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea.' " (In re Resendiz (2001) 25 Cal.4th 230, 239.) A claim of ineffective assistance of counsel in violation of the defendant's Sixth Amendment rights entails deficient performance under an objective standard of professional reasonableness and prejudicethat is, a reasonable probability exists that, but for counsel's failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) The Strickland standards also apply to defendant's claim under article I, section 15 of the California Constitution. (See, e.g., People v. Waidla (2000) 22 Cal.4th 690, 718.)

In considering

" 'whether a defendant, with effective assistance, would have . . . [rejected a plea] offer, pertinent factors to be considered include: whether counsel actually and accurately communicated the offer to the defendant; the advice, if any, given by counsel; the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer; and whether the defendant indicated he or she was amenable to negotiating a plea bargain.' " (In re Resendiz, supra, 25 Cal.4th at p. 253.)

There is no dispute in this case about the nature of the plea offer or that attorney Jones accurately communicated the offer to Butler. However, Butler and attorney Jones differed considerably as to the advice given by Jones. Jones testified that she spent a total of approximately two hours discussing the case with Butler, including his criminal history, potential defenses and his sentencing exposure. Butler testified that Jones spent a total of approximately 10 minutes discussing the case with him. Butler said Jones did not discuss possible defenses with him and told him that if he went to trial, he would lose.

The trial court expressly found Jones's testimony regarding the advice she gave to Butler to be the most credible. The court was entitled to disbelieve Butler's version of the discussions between him and Jones. Considering the court's express finding and its ultimate ruling, it is apparent that the court found Jones generally credible. We defer to the trial court on the issue of witness credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [" 'it is the exclusive province of the trial judge or jury to determine the credibility of a witness' "].)

We are unpersuaded by Butler's appellate argument that he established Jones's ineffective representation because she had not done further investigation beyond obtaining the police report. Butler pleaded guilty before the preliminary hearing.

Moreover, the possibility of 17 years in state prison on conviction of the burglary charge and three years on conviction of the theft case suggests the stipulated term of nine years (with 85 percent of the sentence to be served before being eligible for parole) was a favorable disposition for defendant. "In determining whether or not a defendant who has pled guilty would have insisted on proceeding to trial had he received competent advice, an appellate court . . . may consider the probable outcome of any trial, to the extent it may be discerned." (In re Resendiz, supra, 25 Cal.4th at p. 254.) Butler's criminal history most likely would have precluded his testimony at trial and, without his testimony, it was unlikely he would have prevailed at trial.

There is nothing in the record to establish that the trial court abused its discretion or otherwise erred in concluding that Butler did not show he had entered his plea as the result of ineffective assistance of counsel.

The trial court did not err by denying Butler's motion to withdraw his plea.

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.

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^[1] Statutory references are to the Penal Code.