Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Norm Shapiro, Judge. Affirmed with modifications., Los Angeles County Super. Ct. No. BA260775
John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Colleen M. Tiedemann, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
Pursuant to a plea agreement, defendant and appellant Averial D. Alexander (defendant) pleaded no contest to a charge of attempted murder (Pen. Code, § § 187, subd. (a); 664). Defendant admitted allegations that he personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (c)) (the “ firearm GBI enhancement” ), and that his crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) (the “ gang enhancement” ). On appeal, defendant contends that the trial court erred when it denied his motion to withdraw his plea. We modify the award of presentence credit, but otherwise affirm the judgment.
All statutory references are to the Penal Code.
BACKGROUND
In February 2004, defendant was a 21-year-old member of the East Coast Crips street gang. On the afternoon of February 10, defendant rode his mountain bike into the Avalon Boulevard Metro Green Line station, located in a “ known” Crip neighborhood. At the station, 18-year-old Gheron Coleman was buying a ticket for the Metro. Coleman was wearing a red shirt, the color frequently worn by members of the Bloods street gang, notorious rivals of the blue-clad Crips. Provoked by Coleman’s effrontery, defendant pulled out a revolver and shot at Coleman until the gun was empty. He hit Coleman in the abdomen. One of defendant’s stray bullets struck 9-year-old bystander Jamal Pollard in the neck, severing his jugular vein. Fortunately, Coleman (who was not a gang member) and Pollard (who lost 75% of his blood before he was stabilized) both survived their wounds.
There was no preliminary hearing or trial in this case. Following the parties’ lead, we have derived the facts relating to defendant’s crime from the probation officer’s report.
Defendant was charged in a three-count information with one count of attempted murder (§ § 187, subd. (a); 664) and two counts of assault with a firearm (§ 245, subd. (a)(2)). The information specially alleged that the attempted murder was willful, deliberate and premeditated (§ 664, subd. (a)); defendant personally inflicted great bodily injury in the commission of a felony (§ 12022.7, subd. (a)); defendant personally used a firearm in the commission of a felony (§ 12022.5, subd. (a)(1)); the firearm GBI enhancement; and the gang enhancement.
At his arraignment, defendant pleaded not guilty to all charges and denied all special allegations. In January 2005, the trial court declared a doubt as to defendant’s mental competence (§ 1368, subd. (a)) and appointed Dr. Richard Romanoff to assess whether defendant was competent to stand trial.
Dr. Romanoff submitted his report in March 2005. Dr. Romanoff reported that defendant’s psychiatric records indicated that he had been hospitalized for psychiatric reasons several times, beginning when he was 13, due to his overtly aggressive and confrontational behavior. Defendant had been diagnosed with a single episode of major depression, and had also exhibited psychotic symptomatology, including paranoid thinking, delusional thinking, and auditory hallucinations. He had a history of “ considerable family dysfunction,” including his mother’s active drug abuse during her pregnancy with defendant, and the death of defendant’s father from diabetes when defendant was six. Defendant had a history of marijuana use; defendant told Dr. Romanoff that he had used marijuana, PCP, cocaine and Ecstasy regularly since he was 13. Dr. Romanoff reported that, at the time of his evaluation, defendant seemed mildly depressed, and reported auditory and visual hallucinations and paranoid and delusional thinking. Though defendant had been prescribed mood stabilizing and antipsychotic medication upon his initial incarceration, his medications had been discontinued two months prior to the interview.
Dr. Romanoff concluded that defendant’s psychiatric records provided “ clear documentation indicating that [defendant] has had long-standing difficulties with impulse control and anger management,” and “ evidence of consistently reported psychotic symptomatology by [defendant] . . . .” Dr. Romanoff noted, however, that defendant “ presents differently to different people, even during the same time period, and I believe that there is a possibility that he at times exaggerates and or [sic] fabricates symptoms of psychiatric impairment . . . .” When pressed, defendant “ regularly demonstrated more awareness for the events unfolding around him than he initially acknowledged . . . .” Dr. Romanoff therefore believed “ that a significant portion of [defendant’s] exhibited cognitive and psychiatric impairment is being feigned and is under [defendant’s] conscious control.” Dr. Romanoff concluded that defendant “ is currently competent to stand trial.”
In June 2005, the trial court found defendant competent to stand trial. Defendant was re-arraigned, pleaded not guilty and denied all special allegations. In September 2005, defendant agreed to withdraw his plea of not guilty and plead no contest to the charge of attempted murder (without the allegation that the crime was willful, deliberate and premeditated) and admit the firearm GBI and gang enhancements. The trial court informed defendant that, if he pleaded no contest, he would be sentenced to 37 years in state prison, and that he was “ going to serve that at 85 percent time.” Defendant indicated that he understood. The trial court took defendant’s plea.
Prior to sentencing, defendant obtained new counsel (his fourth attorney in this matter). In November 2005, defendant sought and the trial court granted an order for Dr. Romanoff to assess defendant’s competence as of the date his plea was taken and at the time of sentencing. Dr. Romanoff issued a second report in January 2006. When Dr. Romanoff interviewed defendant, defendant “ reported ongoing hallucinatory experiences, and if accepted at face value, he also provided responses indicative of ongoing paranoid delusional thinking.” Dr. Romanoff concluded, “ I believe [defendant] is fabricating and or [sic] exaggerating the extent of his current psychiatric difficulties. I continue to have extremely serious doubts about [defendant’s] overall credibility . . . . I continue to believe that [defendant] is currently competent and is attempting to feign incompetency in an effort to delay ongoing court proceedings. . . . [¶ ] I believe there is extremely clear evidence to indicate that [defendant’s] production of symptoms in the course of the past and current clinical evaluation is under his own conscious control and is not reflective of actual psychiatric or cognitive impairment.”
In February 2006, defendant moved to withdraw his plea. Defendant argued that (1) he was given insufficient time to deliberate over the plea offer; (2) he was incompetent at the time of the plea; (3) he mistakenly believed he would be sentenced to 20 years instead of 37 years in prison; and (4) the trial court had not sufficiently informed defendant of his constitutional right to a jury trial. In support of his motion, defendant submitted Dr. Romanoff’s March 2005 and January 2006 reports. Defendant also submitted declarations from his god-sister and uncle to the effect that defendant’s lawyer had told them defendant would be sentenced to 20 to 25 years if he pleaded no contest, and that they had urged defendant to accept the plea agreement on that basis. They further declared that they would not have advised defendant to accept the plea if they had known the sentence would be 37 years. Defendant did not submit a declaration or testify in support of the motion.
The trial court heard the motion in April 2006. The trial court stated that it believed defendant was competent to enter a plea and did so voluntarily; that defendant was having a case of “ buyer’s remorse” ; that it believed that defendant’s prior counsel had tried but failed to negotiate a plea agreement with a 20 to 25 year sentence; and that it “ could easily go ahead and impose sentence at this time per the agreement.” Defendant urged the trial court instead to order Dr. Romanoff to re-evaluate defendant’s competence at the time his plea was taken, asserting that Dr. Romanoff’s January 2006 report had not adequately addressed that specific issue. Because defendant (who was then 23 years old) was facing actual incarceration of 20 to 30 years, the trial court concluded that it “ was really not much of an effort to ask Dr. Romanoff to take a look at this narrow issue . . . .” The trial court therefore ordered a third evaluation by Dr. Romanoff to assess defendant’s competence as of the date his plea was taken.
Dr. Romanoff rendered his third report in July 2006. Dr. Romanoff stated that, when he interviewed defendant, defendant reported no hallucinatory experiences or paranoid or delusional thinking. Defendant was not receiving any psychotropic medication. Defendant admitted that his previous attorney had said that he would try to negotiate a plea with a 20-year sentence, but the best deal his attorney could get involved a 37-year sentence. Defendant claimed he “ didn’t realize what [he] was doing at the time,” felt “ extremely pressured by his attorney to accept this agreement,” and that he was “ ‘ scared.’ ” Defendant said he had been told by other inmates that he could accept the 37-year plea agreement, and then withdraw his plea if his privately retained attorney negotiated a better deal. Defendant also “ acknowledged that he had exaggerated his difficulties” in his prior meetings with Dr. Romanoff. Dr. Romanoff concluded that, although defendant “ was experiencing significant feelings of distrust toward the criminal justice system” when his plea was taken, there was no “ objective evidence to indicate that either psychiatric impairment or significant cognitive impairment directly contributed to [defendant’s] decision to enter into the original plea agreement.”
In August 2006, the trial court held a hearing on Dr. Romanoff’s final report. Defendant essentially withdrew his argument that he was incompetent when his plea was taken. Instead, relying solely on Dr. Romanoff’s report, defendant argued “ that [defendant’s] free and clear judgment was overcome by cultural biases, some mental illness, and following bad advice of inmates, and the lack of trust and honesty between himself and his former counsel.” The prosecutor — who had not seen a copy of the report prior to the hearing — countered that, even if one assumed the facts stated in Dr. Romanoff’s report were true, the facts established nothing more than a case of buyer’s remorse.
The trial court denied defendant’s motion to withdraw his plea. The trial court concluded that it “ had no doubts” that defendant’s plea was voluntary, and that defendant had failed to present any evidence constituting good cause to withdraw his plea. The trial court sentenced defendant to 37 years in state prison, consisting of the midterm of seven years for attempted murder; a consecutive 20-year term for the firearm GBI enhancement; and a consecutive 10-year term for the gang enhancement. Defendant was given presentence credit of 1004 days, consisting of 874 days of actual credit and 130 days of conduct credit. Defendant timely appealed, and the trial court granted defendant’s request for a certificate of probable cause.
The trial court also imposed a $20 court security assessment (§ 1465.8, subd. (a)(1)), a $20 DNA fine (§ 299.5), a $200 restitution fine (§ 1202.4, subd. (b)), and a $200 parole revocation fine, stayed pending defendant’s successful completion of parole (§ 1202.45).
The trial court’s calculation of conduct credit was erroneous. (See Discussion, Part C, post.)
DISCUSSION
A. Section 1018
Defendant’s sole contention on appeal is that the trial court erred when it denied his motion to withdraw his plea of no contest. Section 1018 provides, in relevant part, “ On application of the defendant at any time before judgment . . ., the 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. Williams (1998) 17 Cal.4th 148, 167; People v. Ravaux (2006) 142 Cal.App.4th 914, 917; People v. Sandoval (2006) 140 Cal.App.4th 111, 123.) 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, supra, 142 Cal.App.4th at p. 917.) Guilty pleas, however, “ are not set aside simply because defendants change their minds.” (In re Vargas (2000) 83 Cal.App.4th 1125, 1143.) “ 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.’ [Citation.]” (People v. Ravaux, supra, 142 Cal.App.4th at p. 919.)
Defendant contends that the proper standard of proof is preponderance of the evidence, citing Justice Timlin’s concurring opinion in People v. Nance (1991) 1 Cal.App.4th 1453, 1458-1473 (conc. op. of Timlin, J.). Justice Timlin argued that the preponderance-of-the-evidence standard was correct, and that the lower courts were not bound by dicta in several California Supreme Court opinions stating that the clear-and-convincing standard applies to motions under section 1018. We reject defendant’s contention. As illustrated by the majority opinion in People v. Nance, supra, 1 Cal.App.4th at p 1456, and the cases cited in the text supra, the overwhelming weight of authority is contrary to Justice Timlin’s position. Further, Supreme Court authority subsequent to People v. Nance has reiterated that the clear-and-convincing standard is the correct standard of proof on motions under section 1018. (People v. Williams, supra, 17 Cal.4th at p. 167.)
“ A decision to deny a motion to withdraw a guilty plea ‘ “ rests in the sound discretion of the trial court” ’ and is final unless the defendant can show a clear abuse of that discretion. [Citations.] Moreover, a reviewing court must adopt the trial court's factual findings if substantial evidence supports them. [Citation.]” (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) “ It is entirely within the trial court’s discretion to consider its own observations of the defendant in ruling on such a motion. [Citation.] The court may also take into account the defendant’s credibility and his interest in the outcome of the proceedings. [Citations.]” (People v. Ravaux, supra, 142 Cal.App.4th at p. 918.)
B. The Trial Court Did Not Abuse Its Discretion in Denying Defendant’s Motion to Withdraw His Plea
On appeal, defendant does not argue that he was mentally incompetent at the time his plea was taken, nor does defendant argue that he was rendered ineffective assistance of counsel by the lawyer who then represented him. Instead, defendant argues that he “ simply made a mistake, caused by misrepresentation by other inmates, distrust of his then attorney, and his mental capacity and lack of mental stability, that overcame [defendant’s] free and clear judgment.”
As noted above, defendant did not testify or submit a declaration in support of his motion to withdraw his plea. As a result, there is no direct evidence that he relied upon the erroneous advice of his fellow inmates or that he distrusted his attorney at the time of his plea. The only evidence of those facts are hearsay statements made by defendant to Dr. Romanoff, as reported by Dr. Romanoff in his July 2006 report. (Evid. Code, § 1200, subd. (b).). The People did not object below to defendant’s arguments relying on this evidence, opting instead to assume arguendo the truth of defendant’s hearsay statements. The People also do not contest the evidentiary basis of defendant’s arguments on appeal. Because we affirm on other grounds, we need not decide whether the trial court properly considered defendant’s hearsay evidence, or whether the People forfeited any objection by failing to raise it below.
The trial court found that “ at the time [defendant] entered the plea, he was fully advised, he was questioned as to whether he understood what he was doing, if it’s what he wanted to do, if he had adequate time.” The trial court also independently recalled that, “ when the plea was entered, I had no doubts in my mind. If I had suspected something was out of line, if there was something that [defendant] was doing that he should not have been doing, even with an attorney, I would have inquired at that point.”
The record of the plea colloquy supports the trial court’s findings. Defendant stated, in response to the trial court’s direct inquiry, that he wanted to plead guilty to the crime of attempted murder. The trial court carefully explained to defendant both that defendant would be sentenced to 37 years, and how the length of defendant’s sentence had been calculated. Defendant indicated that he understood the trial court’s explanation, and reiterated that he wanted to plead guilty. Defendant stated that he had enough time to discuss the plea with his attorney; that no one had threatened him or was forcing him to plead guilty; that no one had promised him any reward, immunity or other benefit to induce him to plead, other than the 37-year term; and that he was pleading guilty freely and voluntarily. Defendant was advised of his constitutional rights, and waived each of them. Defendant then again indicated that he understood that he was “ going to receive thirty-seven years to be served in the state prison.” He was also told by the trial court and indicated that he understood that he would serve his sentence at “ 85 percent time” because of the nature of the offense, that he would receive conduct credit, and that the trial court would terminate defendant’s probation in another case. The trial court explained each of the fines and assessments that would be levied as a result of defendant’s plea. Defendant indicated that he understood these explanations. The trial court explained to defendant that, once he was released, he would be on parole from three to five years, and the consequences of a parole violation. Defendant said he understood. The prosecutor explained to defendant that he would be unable to own, use or possess a firearm for the rest of his life, and that his plea would result in a prior strike conviction that could increase the penalty imposed in any new case. The defendant indicated that he understood. At no time during the hearing did the defendant evidence any confusion, signify that he did not understand what he was being told, or indicate any misgivings about or reluctance to enter his plea.
Defendant’s contention that he was mistaken as to the length of his sentence at the time he entered the plea is not supported by the record. Defendant was informed three times during the plea colloquy that he would be sentenced to 37 years in prison, and three times defendant indicated that he understood what he was told. Further, defendant admitted to Dr. Romanoff that “ on the day he entered his original guilty plea, . . . he was aware that he was pleading guilty and that this guilty plea would result in his receiving a thirty-seven year state prison sentence.” The trial court therefore had a substantial basis to reject defendant’s contention.
Similarly, the trial court had a sound basis to reject defendant’s contention that his mental instability overcame his free and clear judgment. The trial court directly engaged defendant in conversation and had an adequate opportunity to observe defendant’s demeanor throughout the plea colloquy. Further, Dr. Romanoff had concluded, in three separate reports rendered over the course of 15 months, that defendant had exaggerated or fabricated his symptoms of mental illness, and that defendant was “ attempting to feign incompetency in an effort to delay ongoing court proceedings.” Dr. Romanoff harbored “ extremely serious doubts about [defendant’s] overall credibility.” Furthermore, in Dr. Romanoff’s final report, he concluded that there was no “ objective evidence to indicate that either psychiatric impairment or significant cognitive impairment directly contributed to [defendant’s] decision to enter into the original plea agreement.”
Defendant also contends that he did not trust his court-appointed attorney — in part due to the attorney’s representation that he could negotiate a 20-year sentence and then achieving only a 37-year sentence — and that he relied upon the erroneous advice of fellow inmates that he could easily withdraw his guilty plea if a new, privately retained lawyer was able to negotiate a better deal. Even if we accept Dr. Romanoff’s report as evidence of these facts, plaintiff cites no authority to support the proposition that either distrust of appointed counsel or a defendant’s reliance on bad legal advice from inmates constitutes good cause to withdraw a guilty plea. Defendant does not contend, and there is no evidence, that defendant’s distrust impaired his attorney-client relationship with his defense attorney, nor does defendant contend that his attorney’s performance was so deficient that it violated defendant’s constitutional right to counsel. Rather, defendant indicated during the plea colloquy that he had been given adequate time to discuss the plea with his attorney. Further, “ [i]t needs no citation of authority to show that a prisoner has no right to rely upon representations of fellow prisoners” in deciding to enter a guilty plea. (People v. Kelly (1960) 184 Cal.App.2d 611, 614.)
To the extent defendant argues that the combination of these factors overwhelmed defendant’s free and clear judgment in entering his plea, he asks U.S. to reweigh the evidence. This we cannot do. “ We are required to accept all factual findings of the trial court that are supported by substantial evidence.” (People v. Ravaux, supra, 142 Cal.App.4th at p. 917.) Particularly in a case such as this, in which there is no declaration or testimony from defendant and the evidence (other than the expert conclusions regarding defendant’s mental health) is stated in vague and conclusory terms, the trial court is in a far better position than we to assess defendant’s demeanor and credibility, and whether defendant entered his plea freely and voluntarily. We have no doubt, as Dr. Romanoff concluded, that defendant was apprehensive and distressed when he entered his plea — any young man would be who had committed such serious crimes and who faced such a severe penalty. But the stresses inherent in deciding whether to plead guilty do not constitute good cause to withdraw the plea if the defendant later changes his mind. (In re Vargas, supra, 83 Cal.App.4th at p. 1143.) As the trial court noted, the defendant faced a life sentence. He obtained a determinate sentence. The trial court did not abuse its discretion when it denied defendant’s motion to withdraw his plea.
C. The Trial Court Miscalculated Defendant’s Presentence Credits
The abstract of judgment shows that defendant spent 874 days in custody prior to sentencing, and that the trial court granted him 130 additional days of conduct credit, for a total of 1004 days. Pursuant to section 2933.1, any person who is convicted of a felony offense listed in section 667.5 “ shall accrue no more than 15 percent of worktime credit.” Attempted murder is listed in section 667.5, subdivision (c)(12). Fifteen percent of 874 is 131.1. Because the case law required the trial court to calculate the conduct credits to the greatest whole number, not to exceed 15.0 percent, defendant was entitled to 131 days of conduct credit, not 130. Defendant should therefore have been awarded 1005 days of pre-sentence credit. (People v. Duran (1998) 67 Cal.App.4th 267, 270; People v. Ramos (1996) 50 Cal.App.4th 810, 815-816.)
DISPOSITION
The clerk of the superior court is ordered upon issuance of the remittitur to prepare a corrected abstract of judgment to show that defendant was entitled to 131 days of pre-sentence credit, for a total of 1005 days of credit for time spent in custody. The clerk of the superior court shall forward the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: TURNER, P. J., KRIEGLER, J.