P. v. Perez

Filed 1/14/10 P. v. Perez CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Stanislaus County. John G. Whiteside, Judge.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Joseph M. Cook and David Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

In exchange for sentencing concessions, appellant pled no contest to numerous drug, firearm and theft charges. At the sentencing hearing, defense counsel orally motioned to withdraw appellants pleas. The motion was denied. Thereafter, appellant engaged in repeated colloquies with the court to convince it to allow him to withdraw his pleas; he was not successful. Appellant challenges this ruling as an abuse of discretion. We are not persuaded and will affirm the judgment.

FACTS

On October 6, 2006, an 11-count information was filed charging appellant and his wife, Theresa Aguirre, with transporting methamphetamine and marijuana, possessing methamphetamine and marijuana for purpose of sale, unlawful possession of a firearm and ammunition, receipt of a stolen vehicle, and vehicle taking or driving. A prior strike, a prison prior and two prior controlled substance convictions were specially alleged with respect to appellant only. (Health & Saf. Code, 11379, 11370.2, 11378, 11377, 11359, 11360; Veh. Code,  10851, subd. (a); Pen. Code, 12021, subd. (a), 496d, 12316, subd. (b)(1), 667, subd. (d), 667.5, subd. (b).) Appellant and Aguirre both entered not guilty pleas and appellant denied the special allegations.^[1]

Appellant and Aguirre each filed a separate motion to suppress evidence. Appellant joined in Aguirres motion. After hearing, both motions were denied.

Appellant and Aguirre accepted negotiated plea offers.

On December 10, 2008, a change of plea hearing was held. In exchange for appellants no contest plea to all of the charges and admission of the prior strike, the prison prior and one of the prior drug conviction allegations, he would be sentenced to a term of nine years and the remaining special allegation would be dismissed. In exchange for Aguirres no contest plea to one count of being an accessory to the crime of transporting methamphetamine (a lesser related offense to count I), she would be granted probation for a period of three years and the remaining charges would be dismissed. Aguirre was required to waive her appellate right as a condition of the plea agreement but appellant was not. He was advised that his obligations under the plea agreement did not include surrender of his right to appeal from the denial of the suppression motion. (See Pen. Code,  1538.5, subd. (m).)

The court asked appellant, Are you pleading no contest because after talking with your attorney youre satisfied that if you went to trial theres a substantial probability you would be convicted? Appellant answered, Yes. The court continued, That, plus the promises made to you with regard to the sentence the reason youre doing this? Appellant said, Yes. Appellant also responded affirmatively to the courts query whether he had enough time to discuss the matter with his attorney and whether he told the attorney all the facts and circumstances of the case. Appellants counsel affirmed that he had enough time to review the matter and discuss it with appellant. Appellant replied negatively to the courts query whether anyone had threatened him or anyone close to him to obtain the plea. Aguirre was asked the same questions and replied in the same manner as did appellant. Appellants counsel stated that there was a factual basis to the entry of the plea and it was set forth by the prosecutor.^[2] Appellant confirmed that he understood a no contest plea is the legal equivalent of a guilty plea. The court found appellant had waived his rights and entered the plea voluntarily and intelligently.

Appellants sentencing hearing was conducted on February 23, 2009. At the outset, appellants counsel stated: Your honor, I do, however, I want to inform the Court that Mr. Perez is wanting to withdraw his plea. He feels that he was unduly forced to make this plea because of leniency that was promised to the co-defendant, which is his wife. The court replied, The motion to withdraw the plea is denied.

Thereafter, the court imposed the agreed upon nine-year sentence. Appellant interrupted and the following colloquy occurred:

THE DEFENDANT: Excuse me, your Honor. Excuse me, your Honor. I dont know what hes doing, I really dont. But we need to sit here -- and I need to sit here and wait to see what is going on with my wife. He is sitting here talking about hes trying to save my appeal. Ive already sat here and told him something else. I dont know what hes trying to do.

THE COURT: I dont know what youre talking about.

MR. RUCK [defense counsel]: Well, that is something I wanted to make sure, because I just spoke with the district attorney outside, he perhaps misremembered, but he has an appeal right on the 1538.

The court confirmed that appellant had a right to appeal from the ruling on the suppression motion and stated that it would issue a certificate of probable cause. Appellant said, Im not guilty. The court replied, Well, you know what, Mr. Perez. You changed your plea and you pled guilty, so thats the way it is. Okay.

Appellant asked the court to wait for Percy and Aguirre to be here so we can do this. I feel more comfortable like that. The court stated that it did not see the purpose of waiting because Aguirres agreement is settled and she will received the agreed upon sentence. The prosecutor stated that he spoke with Aguirres counsel before this matter was called and he is 25 minutes away from the courthouse. Defense counsel and he are anxious for this proceeding to be completed so they can move on to other matters. The court responded, Okay. All right. Well continue.

The court continued reciting the sentencing conditions and parole rights. It asked appellant, You understand what I have told you about your parole rights? Appellant shook his head in the negative. When the court asked appellant what he did not understand, he replied, I dont understand the fact of what he just pulled on me. The court answered, I dont know what hes -- hes not pulled anything on you, as far as I know. Youre getting the agreement that you had.

Appellant said: Your Honor, I sit there and everything that we have gone through, everything we have done, I sit there -- you know what? Im not guilty of this, okay. Regardless of whatever you might think, its like -- come on, just because I have a past record? The court replied: No, not just because you have a past record, its because of all of the facts and circumstances of the case, Mr. Perez. I read the transcripts and Im familiar with this case, and I dont have any problems with your guilt. So anyway--

Appellant interrupted, stating, I didnt even have nothing on me, though. Thats what I dont understand. The court asked, You think you have to have it on your person in order to be found guilty? Appellant said, My wife is willing to say its her shit and she is willing to admit it.

At this point, the court began to set forth appellants appeal rights. Appellant interrupted again, stating, My wife is going to come up here and sit there and plea. I mean, shes going to tell you the truth. Why dont you give her the chance and let her come up and tell the truth? The court replied, No, Im not going to do that, Mr. Perez. You entered your plea and youre stuck with it. Appellant said, Your Honor, I have been dealt a bad hand for this whole -- in all of this. Can we just give my wife a chance to come up here and get her to sit here and tell her story? The court answered, No. Appellant said, But youre sending an innocent man to prison. The court replied, No, Im not. Appellant reiterated his innocence and the court reiterated its disbelief. Eventually, appellant said, Terry, come on. [] Okay, fine. The court completed the sentencing hearing without further comment from appellant.

DISCUSSION

I.             Refusal to permit appellant to withdraw his pleas was not an abuse of discretion and remand for appointment of substitute counsel is not required because he did not raise a colorable claim either that counsel was ineffective or there existed another legal basis to withdraw the pleas.

Appellant argues that denial of the new trial motion was an abuse of discretion and the matter must be remanded for appointment of substitute counsel because defendant expressed his belief that his counsel had tricked appellant. We are not convinced. As will be explained, the court acted properly under the circumstances and did not abuse its discretion.

Guilty and no contest pleas and admissions may be withdrawn before judgment for good cause shown by clear and convincing evidence. ( 1018; People v. Cruz (1974) 12 Cal.3d 562, 566.) A defendant may show good cause by demonstrating that he received ineffective assistance at an important stage of the proceeding such as plea bargaining and pleading. To establish ineffective assistance of counsel, a defendant must show that counsels representation fell below an objective standard of reasonableness under prevailing professional norms and demonstrate prejudice. (In re Resendiz (2001) 25 Cal.4th 230, 239.) A defendant who pled guilty shows prejudice resulting from ineffective assistance by establishing a reasonable probability that, but for counsels incompetence, he would not have pled guilty and would have insisted on proceeding to trial. (Id. at p. 253.) The denial of a motion to withdraw a guilty plea will not be disturbed on appeal unless an abuse of discretion is shown. (In re Brown (1973) 9 Cal.3d 679, 685.)

Marsden and its progeny require that when a defendant complains about the adequacy of appointed counsel, the trial court permit the defendant to articulate his causes of dissatisfaction and, if any of them suggest ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel is in fact rendering effective assistance. [Citations.] (People v. Eastman (2007) 146 Cal.App.4th 688, 695.) A defendant is not required to make a formal Marsden motion in order to trigger an inquiry obligation on the part of the trial court. If the defendant states facts sufficient to raise a question about counsels effectiveness, the court must question counsel as necessary to ascertain their veracity. (Id. at p. 695.)

We reject appellants assertion that the court was required to appoint substitute counsel, because he did not present facts during his numerous personal colloquies with the court sufficient to raise a colorable claim that counsel was ineffective and did not set forth an arguable case that a fundamental breakdown had occurred in the attorney-client relationship. Appellant was given a reasonable opportunity by the court to set forth his concerns and he did not articulate facts indicating that defense counsel may have been deficient or that there existed any legal ground to set aside the pleas.

Appellant points to his remark, I dont understand the fact of what he just pulled on me, as evidence that he had been tricked by defense counsel. This is insufficient. It is likely that the word he referenced the prosecutor and not defense counsel. In any event, appellant failed to articulate facts raising a colorable claim that he had been inadequately advised or tricked by defense counsel. There is no evidence in the record that Aguirres plea agreement was conditioned upon appellants acceptance of the plea offer made to him. Appellant stated during the change of plea proceedings that neither he nor anyone close to him had been threatened in order to obtain the plea.

Moreover, the rest of appellants comments demonstrate that he had merely changed his mind about the wisdom of accepting the plea bargain. They do not indicate that defense counsels representation had been deficient or there had been a fundamental breakdown of the attorney client relationship. Appellants change of mind is not a legal basis for withdrawing the pleas. It is apparent from the entirety of appellants remarks to the judge that he regretted his decision to enter into a plea agreement together with Aguirre and belatedly wanted to shift the blame onto her shoulders because she did not have prior convictions that would result in sentencing enhancements. Appellant seems to have labored under the misapprehension that he was unfairly being punished due to his prior convictions.

Appellant erroneously believed that a statement by Aguirre that all the contraband belonged to her would result in dismissal of the charges or acquittal. This is evident by the following exchange. Appellant complained, I didnt even have nothing on me, though. Thats what I dont understand. The court asked, You think you have to have it on your person in order to be found guilty? Appellant replied, My wife is willing to say its her shit and she is willing to admit it. Appellants failure to recognize the applicability of the legal concepts of constructive and joint possession does not render his defense counsels representation deficient. Similarly, defendants protestations of innocence are not a basis to withdraw the plea because he pled no contest to obtain sentencing concessions and because he was convinced he would be convicted at trial. He was not required to admit his guilt as a condition of the plea.

Appellants reliance on People v. Brown (1986) 179 Cal.App.3d 207 (Brown) and People v. Osorio (1987) 194 Cal.App.3d 183 (Osorio) is misplaced. In Brown, defendant unsuccessfully requested appointment of another lawyer after defense counsel stated that he did not believe there was any legal basis to withdraw the plea and refused to make such a motion. (Brown, supra, 179 Cal.App.3d at pp. 211-212.) In Osorio, defense counsel refused to assist the defendant in filing a motion to withdraw a plea even though counsel acknowledged there was a possible ground for such a motion. (Osorio, supra, 194 Cal.App.3d at pp. 185-186.) In contrast, defense counsel in this case stated that appellant wanted to withdraw his plea because [h]e feels that he was unduly forced to make this plea because of leniency that was promised to the co-defendant, which is his wife. Defense counsel was not required to forcefully argue a point such as this that had no factual basis, since appellant had specifically stated during the change of plea proceedings that neither he nor anyone close to him had been threatened in order to obtain the plea. There is no evidence or indication in the record that appellant was coerced to plead no contest to crimes he did not commit in order to save his wife from unfair convictions, or that Aguirres plea agreement was conditioned upon his acceptance of the plea agreement offered to him. Therefore, defense counsels failure to vigorously advance such a contention did not render his assistance ineffective or trigger a duty to appoint substitute counsel. Appellant did not indicate at any time during his colloquies with the court that he desired substitution of counsel or believed he had received ineffective assistance of counsel. Therefore, this matter is distinguishable from Brown, Osorio and similar cases.

Accordingly, we find denial of the motion to withdraw the pleas was not an abuse of discretion and the court was not required to appoint substitute counsel to conduct further inquiry into defense counsels effectiveness. No error appears.

II.          The pleas were not induced by an illusory promise of appellate review.

Appellant also claims that his pleas were induced by an illusory promise of appellate review of the rulings on the suppression motions. We disagree.

Appellant points out that he had a statutory right to appeal from the suppression motions pursuant to Penal Code section 1538.5, subdivision (m).^[3] From this, he asserts that the courts statements he could appeal and it would issue a certificate of probable cause were legally meaningless and, therefore, constitute an illusory promise. This line of argument fails to recognize an important fact: Aguirre was required to waive her statutory right to appeal the ruling on the suppression motions as a condition of her plea bargain. Appellant was not. Therefore, what appellant casts as an illusory promise actually was a distinguishing element between the two plea agreements. Appellant retained a legal right that Aguirre knowingly forfeited.

Appellant further contends that because appellate challenge to denial of the suppression motions would not have succeeded for procedural and substantive reasons, the promise of appellate review was illusory. Once again, we are not persuaded. Appellants argument that preservation of the right to appeal the denial of the suppression motions implicitly suggested there could be appellate review on the merits is not convincing. The trial court did not attempt to expand the legal scope of appellate review to issues that are not appealable through the vehicle of a certificate of probable cause, as occurred in People v. Coleman (1977) 72 Cal.App.3d 287, 292-293, and People v. Truman (1992) 6 Cal.App.4th 1816, 1820-1821. And appellants reliance on People v. DeVaughn (1977) 18 Cal.3d 889 is particularly misplaced. The high court specifically distinguished the procedure provided by statute whereby an accused may preserve for appeal the issue of the propriety of a denial of a motion to suppress evidence resulting from a claimed unlawful search and seizure from the factual circumstance before it. (Id. at p. 896, fn. 6.) Nothing precludes appellant from challenging denial of the suppression motions to the highest court of the land and seeking reconsideration of Fourth Amendment principles to challenge prevailing concepts of standing and reasonableness to search.

Accordingly, we conclude that no illusory promise was made to appellant.

DISPOSITION

The judgment is affirmed.

_________________________

Levy, Acting P.J.

WE CONCUR:

_______________________________

Cornell, J.

_______________________________

Hill, J.

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^[1] A separate information was filed on the same date charging appellant with receiving a stolen vehicle while released on bail. This information was dismissed.

^[2] The prosecutor proffered the following factual basis for appellants plea: The charges originated from a traffic stop involving appellant and Aguirre. On or about January 16, 2005, appellant knowingly transported an item containing over 80 grams of methamphetamine and another item over four grams of methamphetamine. On the same date, over six grams of methamphetamine, at least one handgun, one shotgun and some ammunition were found at his residence, as was a Honda that had been reported stolen. Scales, totes and cash were found on the persons of appellant and Aguirre. On the same date, a bag appellant was carrying when he left on foot after the traffic stop was found abandoned. It contained eight bags of marijuana packaged for sale. Appellant has a prior conviction for vehicular manslaughter with gross negligence, as well as the listed convictions in the prior set forth in [Penal Code section] 667.5(b).

^[3] In relevant part, Penal Code section 1538.5, subdivision (m) provides that [a] defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty.