P. v. Lewis

Filed 6/25/08 P. v. Lewis CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge.

Larry L. Dixon, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.

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Defendant Virgil Bud Lewis pled no contest to child abuse for pushing his infant daughter to the floor. On appeal, he contends that the trial court erred by denying his motion to withdraw his plea. We conclude that the trial court did not abuse its discretion. Accordingly, we affirm.

PROCEDURAL SUMMARY

On November 16, 2006, the Fresno County District Attorney charged defendant with corporal injury to spouse/cohabitant (Pen. Code, 273.5, subd. (e))^[1]and child abuse ( 273a, subd. (a)). The information further alleged that within the last seven years, defendant suffered two prior convictions under section 273.5.

On June 5, 2007, defendant entered a plea of no contest to the child abuse charge pursuant to a plea agreement. The plea agreement specified that the corporal injury charge would be dropped and defendant would serve no more than four years, which would run concurrently with a two-year sentence for violation of probation under section 273.5.

On August 27, 2007, defendant moved to withdraw his plea of no contest but the trial court denied the motion. Defendant was sentenced to four years in prison, as follows: four years for child abuse and two years for violation of probation to be served concurrently. Defendant obtained a certificate of probable cause.

FACTS

According to the probation report, defendant and his girlfriend, Angelica Johns, lived together in a mobile home behind Ms. Johnss mothers house in Tollhouse. They had a seven-month-old child together. On September 26, 2006, an argument ensued between defendant and Ms. Johns. Defendant became enraged and Ms. Johns picked up their child and tried to leave the mobile home. Defendant threw both Ms. Johns and the child to the floor, causing the childs head to hit the wall. Defendant then climbed on top of Ms. Johns and punched her in the head six to seven times. Ms. Johns was able to get up and run but defendant caught up with her and punched her in the mouth. Ms. Johns then ran to her mothers house and the police were called. The child sustained no visible injuries, but Ms. Johns sustained a one-inch laceration to the inside of her upper lip.

Defendant was arrested and charged following an unrelated incident on May 18, 2007. On June 5, 2007, defendant entered his no contest plea to the charge of child abuse. Defendant claimed that the decision to accept the plea bargain was pursuant to advice from defense counsel. Defendant asserted that he believed Ms. Johns would testify at trial that he beat her.

On August 2, 2007, Ms. Johns signed a declaration recanting her September 26, 2006 statement to the police. Ms. Johns claimed that she made up the story because she was mad at defendant and because she wanted to back up her aunts story as her aunt was the one who called the police. Defendant filed a motion to withdraw his plea, citing Ms. Johnss recantation as new evidence. The trial court denied defendants motion and entered judgment against defendant on August 27, 2007.

DISCUSSION

Defendant argues that the trial court abused its discretion by not granting his motion to withdraw his plea of no contest and submit a plea of not guilty. Defendant contends, under a new evidence theory, that he did not know Ms. Johns would recant her earlier statement to the police, and that her recantation constituted new evidence defendant was not privy to at the time he entered his plea. Defendant insists that because he entered his plea not knowing about this recantation, he entered the plea under a mistake of fact. Defendant maintains that this new evidence constituted good cause under section 1018 for allowing the withdrawal of his plea. We disagree.

Section 1018 states in part, that 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 can be shown through mistake, ignorance or any other factor overcoming the exercise of free judgment. (People v. Ramirez (2006) 141 Cal.App.4th 1501, 1506; see 1016 [the legal effect of a no contest plea is the same as that of a guilty plea].) The defendant in such cases has the burden of demonstrating good cause by clear and convincing evidence. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1207.) Granting a motion to withdraw a guilty plea is left to the sound discretion of the trial court. Denial of the motion will not be disturbed on appeal without a demonstration that the trial court abused its discretion. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)

Defendant argues that he mistakenly believed Ms. Johns would testify at trial that he beat her. Fundamentally, defendant contends that, but for his failure to anticipate Ms. Johnss recantation, he would not have pled no contest. That defendant held an inaccurate impression of the strength of the prosecutions case does not amount to good cause to withdraw a plea. (People v.Watts (1977) 67 Cal.App.3d 173, 183; People v. Cruz (1974) 12 Cal.3d 562, 566.) Defendants mistaken belief as to the strength of the prosecutions case did not deprive him of free judgment to accept the plea agreement. The decision to accept a plea agreement involves a cost-benefit analysis on the part of the defendant where pleading guilty is heavily influenced by difficult questions as to the strength of the prosecutions case and the likelihood of securing leniency. Considerations like these frequently present imponderable questions for which there are no certain answers; judgments may be made that in the light of later events seem improvident, although they were perfectly sensible at the time. (People v. Hunt (1985) 174 Cal.App.3d 95, 103.) In light of these circumstances, a defendant may not hedge his bets by accepting a plea agreement intending to withdraw the plea should the prosecutions case change due to unforeseeable factors occurring after the plea is entered.

Defendant makes much of the fact that the trial court relied on its observations of him when taking his plea and used these observations to conclude that he had not shown good cause to withdraw his plea. The trial court noted when it denied defendants motion to withdraw his plea that defendant, at the time he entered the plea of no contest, appeared confident, even cocky. Defendant contends that the trial court ignored his new evidence and focused on his demeanor instead. It is within the purview of the trial court to consider its own observations of the defendant in ruling on such a motion. (People v. Ravaux (2006) 142 Cal.App.4th 914, 918.) The court may also take into account the defendants credibility and his interest in the outcome of the proceedings. (Ibid.) That the trial court found defendants demeanor while entering his plea compelling does not rise to the level of abuse. It is not for this court to second-guess the observations of the trial court and the trial court is allowed to consider its own observations when deciding to deny a plea withdrawal.

The trial courts conclusion that defendant failed to meet his burden of showing good cause by clear and convincing evidence was not an abuse of discretion. Defendants only evidence of mistake lay in Ms. Johnss declaration. That declaration says that she lied to the police on the night of September 26, 2006, when she told authorities that defendant battered both her and her child. Ms. Johns further declared that she lied to police because she felt she needed to back up her aunt who originally called the police and because she was mad at defendant. Defendants evidence is not clear and convincing as it directly contradicts Ms. Johnss earlier statements to the police. At best, this court can only conclude that one of Ms. Johnss statements is false.

Recantations are often looked upon with suspicion. In the related context of a motion for a new trial, [t]he offer of a witness, after the trial, to retract his sworn testimony is always looked upon with suspicion. (People v. Langlois (1963) 220 Cal.App.2d 831, 834.)^[2] The trial court is required to weigh the evidence in support of the motion in such a case and may reject it if the court deems it unworthy of belief. (Ibid.) Ultimately, there are two competing inferences that can be drawn from the record of this case; either Ms. Johns lied in her statement to the police or she lied in her declaration. The trial court does not abuse its discretion if there is a reasonable inference to be drawn from the record that supports the order. (People v. Harvey (1984) 151 Cal.App.3d 660, 667.) Defendant did not offer evidence as to why Ms. Johnss recantation should be believed over her report to the police.^[3] In this case, it was reasonable for the trial court to conclude that Ms. Johnss declaration alone did not provide adequate evidence to contradict her own earlier statement to the police.

We find nothing in the record suggesting that the trial court exceeded the bounds of its discretion.^[4]

DISPOSITION

The judgment is affirmed.

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^* Before Cornell, Acting P.J., Gomes, J. and Kane, J.

^[1] All statutory references are to the Penal Code unless otherwise specified.

^[2] The credibility of Ms. Johnss recantation is further overshadowed by the fact that this case arises out of a domestic violence dispute. There were prior instances of domestic violence between defendant and Ms. Johns. This suggests a cycle of such violence as defendant and Ms. Johns continued to live together following the events of September 26, 2006. It is not uncommon in such cases for victims of domestic violence to report the violence and then recant their statements. (See People v. Brown (2004) 33 Cal.4th 892, 899.)

^[3] The declaration by a witness to the unrelated events of May 18, 2007 neither gives credibility nor casts doubt on either of the statements made by Ms. Johns. Because that witnesss declaration only discusses the events of May 18, we cannot conclude that it in any way bolsters or undermines defendants and Ms. Johnss statements regarding the events of September 26, 2006.

^[4] Defendant also contends that defense counsels failure to investigate the claims of Ms. Johns constituted ineffective assistance of counsel and that this ineffectiveness induced defendant to accept the prosecutions plea bargain. For the reasons discussed above, we find no prejudice and therefore reject this claim. (Strickland v. Washington (1984) 466 U.S. 668, 697; People v. Hester (2000) 22 Cal.4th 290, 296-297 [if on review, court finds that alleged incompetence of counsel was not prejudicial, court need not address whether counsels actions were deficient].)