Filed 11/5/18 P. v. Cruz CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge.

Jennifer Mouzis, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

Appointed counsel for defendant Monica Cruz asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant was advised of her right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed and we received no communication from defendant. Finding no arguable error that would result in a disposition more favorable to defendant, we affirm.

BACKGROUND

We provide the following brief description of the factual and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

On September 21, 2017, defendant was acting in a paranoid manner. She accused her mother, who was holding defendant’s infant daughter, of committing criminal acts against defendant’s children. Defendant was speaking nonsensically. Without warning, she punched her mother in the face several times. Her mother fell onto her back as she held the infant. Responding officers believed defendant was under the influence of a central nervous system stimulant.

On September 25, 2017, the Kern County District Attorney charged defendant with assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4);[1] count 1), battery with serious injury (§ 243, subd. (d); count 2), child endangerment of an infant (§ 273a, subd. (a); count 3), and misdemeanor child endangerment of two other children (§ 273a, subd. (b); count 4).

On October 4, 2017, defendant pled no contest to count 1. She was released until sentencing pursuant to a Cruz[2] waiver.

On November 2, 2017, the trial court granted defendant three years’ probation with 180 days of jail time, as agreed. The court recommended that defendant be allowed to participate in the sheriff’s work release program. The court ordered defendant to complete parenting classes and a 52-week batterer’s treatment program. The court imposed various fines and fees.

On December 4, 2017, defendant filed a motion to modify probation, requesting that she be allowed to complete community service in lieu of the sheriff’s work release program. The trial court granted the motion and ordered defendant to report to the Volunteer Bureau Court Referral Program.

On December 20, 2017, defendant filed a motion pursuant to People v. Smith (1993) 6 Cal.4th 684 (Smith), requesting appointment of new counsel to assist her in withdrawing her plea, and requesting that the matter be heard in the same manner as proceedings under People v. Marsden (1970) 2 Cal.3d 118.

On January 11, 2018, the trial court heard the matter in camera. Defendant stated her reasons for wishing to withdraw the plea and have new counsel appointed. The court denied both requests.

DISCUSSION

At the Smith hearing, defendant explained that the day before her plea hearing, she told defense counsel she wanted to assert a theory of self-defense, and told him the facts of what had happened. He agreed it made sense, so defendant was under the impression her plea would reflect this conversation—“until the following day, when he just switched it and [she] was confused. [She] was told [she] was going to get released that day.”

Then the following discussion occurred in the hearing:

“THE COURT: The following day there was a plea bargain, an offer made to you and you decided to accept the deal.

“THE DEFENDANT: Yes.

“THE COURT: That was 180 days, with a referral to work release, and you were released with a Cruz waiver and parenting classes.

“THE DEFENDANT: Yes.

“THE COURT: And if work release won’t accept you, you could do community service.

“THE DEFENDANT: Yes.

“THE COURT: And if classes were completed, you could get a misdemeanor after 18 months.

“THE DEFENDANT: Yes.

“THE COURT: You took advantage of that plea bargain and pled on that date.

“THE DEFENDANT: Yes.

“THE COURT: [Defense counsel], you want to add anything?

“[DEFENSE COUNSEL]: No thanks.

“THE COURT: I don’t think that’s a legal basis to withdraw your plea because what happened was yes, if you had gone forward to trial or prelim, [defense counsel] could well have defended you with a self-defense argument. But what happened was you were offered a plea that you knew you’d get out that day, so you decided to take advantage of it. So now that you can’t change your mind and say well, I’m gonna go back and do my self-defense deal because you were aware that was an issue, you were aware you could argue that. But you took advantage of the fact you’d get out that day. You voluntarily entered a plea by taking advantage of a plea bargain.

“THE DEFENDANT: Well, it wasn’t clear that I was signing my rights over, I wasn’t clear what a Cruz waiver actually was.

“THE COURT: You’re not citing to me a legal basis to withdraw your plea, so I’m going to deny your request. Cruz waiver means you have to come back for sentencing, which you clearly did, you did everything you were supposed to do, you went and saw Probation.

“THE DEFENDANT: I entered the plea because I also discussed with someone while I was in pretrial, there was a man who came and I spoke to him how I was actually harassed by the deputies who arrested me. Also, my Miranda rights were never taken. I was refused medical; I asked to be taken in an ambulance and they refused me.

“THE COURT: None of those are bases to withdraw the plea, because these are things—you knew about all this when you entered this plea. So you made a knowing, voluntary choice to accept this plea bargain, probably because you got out of jail that day.

“THE DEFENDANT: I was under the impression I would have my children back.

“THE COURT: That’s between you and C.P.S., whether you get the children back. I don’t have any control—

“THE DEFENDANT: I was placed in compromising situations while I was in custody, so I was eager to get out.

“THE COURT: That’s exactly right. But this was a knowing plea. You wanted to take advantage of the plea bargain and you did, and now you’ve changed your mind. That’s not a legal basis. Your motion is denied. Your request is denied. [Defense counsel], anything else?

“[DEFENSE COUNSEL]: No, Your Honor.”

Section 1018 provides, in relevant part, that a trial court may, “for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.” The defendant has the burden to establish good cause by clear and convincing evidence. (People v. Patterson (2017) 2 Cal.5th 885, 894.) To establish good cause, the defendant must show that the plea was the product of “mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free judgment.” (People v. Ravaux (2006) 142 Cal.App.4th 914, 917.) “The fact that [the defendant] may have been persuaded, or was reluctant, to accept the plea is not sufficient to warrant the plea being withdrawn. [Citation.] ‘Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.’ ” (Id. at p. 919.) The defendant’s change of heart is not enough. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)

Here, we see no abuse of discretion in the trial court’s conclusion that defendant had not shown she pled no contest because her free will was overcome. The record supports the conclusion that defendant was offered a good deal and she was anxious to get out of jail immediately. She knew the bargain benefitted her, so she accepted it, and did so freely and voluntarily.

We have undertaken an examination of the entire record, and we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.