P. v. Burks

Filed 2/18/10 P. v. Burks CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Cain Burks pleaded no contest to two counts of second degree burglary (Pen. Code, 459-460, subd. (b))[1]and two counts of petty theft with a theft prior ( 666). Defendant admitted three prior prison terms ( 667.5, subd. (b)) and one prior strike conviction ( 667, subds. (b)-(i), 1170.12). Prior to sentencing, the trial court heard and denied defendants motion to withdraw his plea. The court then sentenced defendant to four years in prison. On appeal, defendant challenges the courts denial of his motion to withdraw his plea. We will affirm the judgment.

FACTS[2]

On August 11, 2008, defendant entered a San Jose Walgreens. An employee observed defendant shoplifting toothbrush refills. The employee ordered defendant to return the merchandise, and he did. Defendant returned to the store an hour later and again took toothbrush refills. This time, he left the store without returning the items. Another employee saw defendant, on a third occasion that same day, take razor blades and leave the store without paying for them. Shortly thereafter, police detained defendant and found toothbrush items in his backpack. Just prior to the stop, defendant was holding two razor blades in his hand. Defendant asked the officer,  What if I pay for the items taken? 

PROCEDURAL HISTORY

Defendant was charged by information, filed October 2, 2008, with three counts of second degree burglary (counts 1, 3 & 5), three counts of petty theft with a theft prior (counts 2, 4 & 6), three prior prison terms, and two strike priors.[3] The case was set for trial on November 25, 2008. Prior to jury selection, the trial court heard and denied a motion for substitution of counsel (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)). After the jury venire entered the courtroom, defendant opted to change his plea to no contest pursuant to a previously negotiated agreement. As charged, defendant faced a maximum of 11 years and eight months in prison (with the application of section 654); the plea provided for a set prison term of four years and the dismissal of counts 1 and 2.

The following exchange occurred before the court accepted defendants no contest plea.

[THE COURT:] Have you consumed any drugs, alcohol, or medication in the past 24 hours which would affect your ability to think clearly or understand whats going on here today?

THE DEFENDANT: I would say I take psych meds sometimes.

THE COURT: Are you thinking clearly today?

THE DEFENDANT: For the most part.

THE COURT: Ill only be able to take this plea of course, counsel, if he is thinking clearly.

Youve been talking to him all day. Have you noticed any problem at all?

[DEFENSE COUNSEL]: No. I think hes upset with whats going on, but I -- Mr. Burks is thinking clearly, understands what the ramifications are.

Weve discussed the defenses. I believe he understands, but I think we have need to hear it from him.

THE COURT: I will now ask him.

Do you feel like youre thinking clearly where you can understand my questions? Youve been hearing them for two days now.

THE DEFENDANT: Yes, I do.

THE COURT: All right.

Then have you had enough time to discuss your case with your attorney, specifically the charges, consequences, any defenses, your constitutional rights, all that stuff?

THE DEFENDANT: Yes, Ive had a chance.

THE COURT: Okay. And besides what I stated here on the record, its pretty simple, four years, no more, no less, eligible for 20 percent credits max because of the strike offense, and parole period to follow, has anyone promised you anything else in exchange for your plea here today?

THE DEFENDANT: No, Your Honor.

THE COURT: No. [] . . . []

Has anyone pressured, threatened or coerced you or anyone close to you in any way in order to make you enter this plea?

THE DEFENDANT: No, Your Honor.

THE COURT: Are you then entering into this plea agreement both freely and voluntarily?

THE DEFENDANT: Yes, I am, Your Honor.

The colloquy continued as the defendant affirmed that he understood the parole, immigration and prior prison term consequences, the firearm and ammunition restrictions, and the imposition of fines, fees and restitution. Defendant was then advised of, and affirmatively waived, his right to a jury trial and related rights. Defense counsel affirmed that he was confident that defendant understood his rights and was in the proper state of mind to intelligently decide to enter a change of plea[.] Defendant then pleaded no contest to the agreed-upon charges: two counts of second degree burglary (counts 3 & 5) and two counts of petty theft with a theft prior (counts 4 & 6).

Upon reaching admission of the strike prior, the following exchange occurred:

[THE COURT:] Do you admit that strike prior?

THE DEFENDANT: Actually thats hard to. It was --

THE COURT: I dont know what he said. Why dont you talk to your attorney. We didnt --

THE DEFENDANT: I said my strike priors.

THE COURT: If you can talk to your attorney, make sure its valid.

THE DEFENDANT: I admit the strike.

THE COURT: Okay.

Counsel, are you confident he knows what hes doing there?

[DEFENSE COUNSEL]: Yes.

Defendant admitted the prior prison terms without further discussion and the court accepted his plea.

On January 30, 2009, defendant brought a second Marsden motion. The court again denied defendants motion to substitute counsel.

On February 6, 2009, the date of sentencing, defense counsel presented an oral motion to withdraw defendants plea. He argued that at the time defendant entered the plea, defendant was under the influence of an antipsychotic drug (trazadone) and an antidepressant (wellbutrin): [A]ccording to Mr. Burks because of his medication and because of the jury coming in, the pressure that added to his medical issues, he changed his mind on what he wanted to do. [] But he believes based on the medication that he wasnt making a knowing, intelligent decision. Defendant added that he is easily influenced while taking the medication, and feels he needs someone from mental health to sit with him and help him understand the court proceedings.

The trial court noted defendants attempts to stall the case and his apparent case of buyers remorse regarding the plea. After defendant claimed defense counsel called him a racial slur, the court found that defendant lacked any credibility. The court concluded that the motion was not based on anything in fact and summarized defendants appearance at the change of plea as follows: defendant was in great physical condition; defendant was thinking clearly; defendant appeared credible when stating that he was not taking any medication that was affecting him that day; defendant answered all questions reasonably and appropriately; and defendant appeared honest when stating that his plea was freely and voluntarily made. The court thus found an insufficient basis to grant the motion for withdrawal of the plea.

The trial court proceeded to sentencing and imposed a four-year term consisting of a 16-month lower term for count 3 (second degree burglary) doubled to 32 months under the Three Strikes law, and a consecutive 16-month middle term for count 5 (second degree burglary). The prison terms for counts 4 and 6, both petty thefts with a theft prior, were stayed pursuant to section 654. In accordance with the plea agreement, the court dismissed the two remaining counts, second degree burglary in count 1 and petty theft with a theft prior in count 2, and struck the prior prison terms.

Defendant filed a timely notice of appeal and the trial court issued a certificate of probable cause. This appeal ensues.

DISCUSSION

Defendant contends that because he was on psychotropic medication at the time he pleaded no contest, his plea was not an exercise in free judgment. Thus, he argues, the court erred in denying his motion to withdraw the plea. We disagree.

On application of the defendant at any time before judgment . . . the court may, . . . for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted . . . . ( 1018.) Mistake, ignorance, or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.] But good cause must be shown by clear and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562, 566; People v. Ravaux (2006) 142 Cal.App.4th 914, 917 (Ravaux).) The trial courts denial of a motion to withdraw a plea is reviewed for abuse of discretion, and its decision will not be reversed on appeal unless a clear abuse of discretion is demonstrated. (People v. Wharton (1991) 53 Cal.3d 522, 585 (Wharton); People v. Fairbank (1997) 16 Cal.4th 1223, 1254 (Fairbank).)[4]

In making our determination, we must adopt the trial courts factual findings if substantial evidence supports them. (Fairbank, supra, 16 Cal.4th at p. 1254; Ravaux, supra, 142 Cal.App.4th at p. 917.) The courts observations of defendant can be part of the substantial evidence supporting a conclusion that defendants plea change was voluntary. (Fairbank, supra, 16 Cal.4th at p. 1254.) Here, the trial court found that defendant was thinking clearly at the time of the plea and that the no contest plea was knowing and voluntary. The court relied on its recollection of defendants demeanor at the proceedings and defendants and defense counsels statements at the time of the plea. Our review of the record supports the courts findings. The court queried defendant regarding his use of medication sometimes and confirmed, on more than one occasion, that defendant understood the ramifications of the proceeding. Defendant answered appropriately at all times and appeared engaged in each specific question. For example, defendant further consulted with his counsel regarding the strike prior, affirmed he understood the courts questions and that he had a chance to consult with his attorney, and actively questioned whether the submission of DNA, blood samples and fingerprints would be required again, as he had already provided them.

There is little credible evidence supporting a contrary finding that defendants medication rendered him unable to enter a knowing and voluntary plea. Defendant stated at the change of plea only that he takes psych meds sometimes. Defense counsel explained that defendant is prescribed medication for bipolar disorder and for depression, but offered no support for the further contention that defendant was actually under the influence of those medications at the change of plea. Defendant also offered no evidence, beyond his vague statements at the hearing, that the identified medications could, or did, affect his ability to participate in the court proceedings. The court is not required to accept a defendants testimony of an unknowing or involuntary plea in the face of contradictory evidencein this case, defendants own statements and demeanor at the hearing. (See People v. Hunt (1985) 174 Cal.App.3d 95, 104; see also Fairbank, supra, 16 Cal.4th at pp. 1253-1255 [presented with contradictory evidence, the trial court disbelieved the defendants statements of intoxication and properly denied his motion to withdraw the plea].)

Defendant argues that the trial court failed to further inquire into defendants competency and suggests that it should have at least directed counsel to assist the court with some sort of evidence or authority concerning the side effects of the medication[.] The onus is on defendant to establish good cause for withdrawal of the plea. Defendant cites no authority for the proposition that it was the trial courts responsibility to request or otherwise develop further evidence demonstrating good cause.

Defendant also points to the pressure of the jury venire and the impending trial in forcing his plea decision. The presence of a jury and the imminence of trial, factors present in a great many change of plea situations, do not negate defendants freedom of choice regarding the plea. The law distinguishes involuntary pleas from those that are made reluctantly or unwillingly. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208-1209; People v. Knight (1987) 194 Cal.App.3d 337, 344.)

Finally, we note that  [g]uilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.  (Ravaux, supra, 142 Cal.App.4th at p. 919.) The plea in this case resulted in a substantially shorter sentence and included the dismissal of two counts and the striking of all the prior prison term enhancements.

Defendant has not met his burden of establishing good cause to withdraw his plea by clear and convincing evidence. The appellate record supports the trial courts factual findings and discretionary decision to deny defendants motion to withdraw his plea.

DISPOSITION

The judgment is affirmed.

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Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

Mcadams, J.

_________________________

duffy, J.

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[1] Further unspecified statutory references are to the Penal Code.

[2]As defendant pleaded no contest, the underlying facts are taken from the preliminary hearing transcript.

[3] At the change of plea hearing, the court dismissed the second alleged strike at the request of the prosecution.

[4] Defendant contends that de novo is the proper standard of review for the denial of a motion to withdraw a plea. Defendant cites, as support, People v. Panizzon (1996) 13 Cal.4th 68, 80 (Panizzon)and several federal cases. In Panizzon, at page 80, the court states only that the voluntariness of a waiver of the right to appealis reviewed de novo. We find no reason to depart from Wharton and Fairbank, among other cases, and are in fact compelled to follow the standard set forth by the California Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456).