Opinion
C086676
11-08-2019
THE PEOPLE, Plaintiff and Respondent, v. SHELDON DARNELL LANDS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17FE000790)
Sentenced to state prison pursuant to a plea agreement, defendant Sheldon Darnell Lands contends the trial court erred by denying his motion to withdraw his plea. We affirm the judgment.
FACTS AND LEGAL PROCEEDINGS
A complaint filed January 13, 2017, charged defendant and a codefendant (not a party to this appeal) with seven counts of identity theft (Pen. Code, § 530.5, subd. (a); statutory section references that follow are to the Penal Code unless otherwise stated), and alleged as to all counts that defendant had suffered a prior strike (§ 667, subd. (b)-(i)).
On April 4, 2017, appearing before Judge Orr, defendant pleaded no contest to counts 1 and 2 and admitted the prior strike, in return for the dismissal of the remaining counts at sentencing with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) for purposes of victim restitution, and a stipulated state prison term of five years four months (the two-year middle term doubled on count 1, plus one year four months, one-third the middle term doubled, on count 2).
The prosecutor recited the factual basis for the plea as follows: "On or about September 2nd, 2016 in the County of Sacramento, the defendant . . . did commit felony violations of Penal Code Section 530.5(a) in that . . . [defendant] did willfully and unlawfully obtain personal identifying information on the County of Sacramento without authorization and used that information for an unlawful purpose and to obtain or attempt to obtain credit, goods, and/or services, and information in the name of the County of Sacramento without their consent. [¶] In addition to that, on or about September 4th, 2016 in the County of Sacramento, . . . [defendant] . . . did commit a second violation of Penal Code Section 530.5(a) in that [he] did willfully and unlawfully obtain personal identifying information on D[.] P[.] without authorization and used that information for an unlawful purpose and to obtain or attempt to obtain credits, goods, services and/or information in the name of D[.] P[.] without consent."
The probation report explained that defendant and the codefendant executed the following scheme: Defendant opened a checking account with a bank. The codefendant stole a mailed check issued by the County of Sacramento and thereafter deposited it in altered form into defendant's account. The two subsequently made five additional similar deposits. In all, seven fraudulent checks were deposited. After defendant withdrew the funds from his account, he and the codefendant would split the money. The total value of the checks was $2,784.45.
On May 16, 2017, appearing before Judge Sweet, defendant attempted to move orally to withdraw his plea. Judge Sweet advised him to file a written motion.
On May 25, 2017, defendant filed a written motion to withdraw his plea. As grounds for the motion, he alleged: "At the time of the plea, [defendant] was taking Remeron, Zoloft, and a medication similar to Benadryl, which were prescribed for treatment of anxiety, bi-polar [sic], and depression. These medications affected [defendant]'s ability to think clearly, which in turn affected his judgment and decision making. [¶] The defendant was not asked by the Court, at the time of entering his plea, if he was under the influence of any drugs which would affect his ability to understand what was going on. (Transcript of plea attached.)"
In a supporting declaration, defendant averred that he did not take his medications on the morning of the date he entered his plea because they make him "drowsy and dizzy" and he wanted "to have a clear mind for court," but "[u]nfortunately the effects of the medications I took on the evening of April 3 had not worn off when I entered my plea. I was drowsy and dizzy and my judgment was off. The amount of maximum time I could be sentenced to frustrated me and made me anxious. The anxiety made me panic and in my panic I took the plea. [¶] At the time I entered my plea the judge did not ask me if I was under the influence of medication/drugs. If the judge had asked me this I would have told the judge that I was under the influence of my medications. [¶] I would not have plead [sic] no contest but for the [e]ffects of these medications; they were affecting my free will and my decision making."
On August 24, 2017, defendant appeared before Judge Orr with two counsel: the attorney who had filed the motion on defendant's behalf and a second attorney who had been appointed to review the motion. The second attorney, asked by Judge Orr for his view on the motion, submitted without offering additional evidence. Judge Orr summarily denied the motion and imposed the stipulated sentence.
Defendant filed timely notice of appeal. The trial court granted a certificate of probable cause.
DISCUSSION
Defendant contends the trial court erred by denying his motion to withdraw his plea. According to defendant, his uncontradicted statements showed he was under the influence of medication that affected his ability to enter a free and voluntary plea, and the transcript of the plea entry hearing shows that the court did not ask him whether he had taken any such medication; therefore, the court's summary denial of his motion was arbitrary and capricious.
Under section 1018, a defendant may move to withdraw his plea " 'at any time before judgment.' " (People v. Turner (2002) 96 Cal.App.4th 1409, 1412.) However, to obtain this relief the defendant must show good cause by clear and convincing evidence. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456-1457.) Good cause requires a showing that "the defendant was operating under mistake, ignorance, or inadvertence, or that the exercise of his free judgment was overcome." (Id. at p. 1456.) We review the denial of a motion to withdraw a plea for abuse of discretion. (Ibid.) An abuse of discretion means the exercise of discretion "in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice." (People v. Shaw (1998) 64 Cal.App.4th 492, 496.)
It is within the trial judge's discretion to consider its own observations of the defendant in ruling on a motion to withdraw a plea (People v. Ravaux (2006) 142 Cal.App.4th 914, 918 (Ravaux) [rejecting defendant's claim that medical problems impaired his judgment when entering his plea]), and the judge is not bound to credit the defendant's statements on the motion, even if uncontradicted. (People v. Hunt (1985) 174 Cal.App.3d 95, 103 (Hunt); see Ravaux at p. 918 (citing Hunt).)
Here, as defendant points out, the transcript of the entry of plea hearing shows the trial court did not ask whether defendant was under the influence of any substance that might impair his free will or judgment. Although he fails to cite authority on point, we assume for argument's sake this was error. Nevertheless, any error was harmless.
Judge Orr, who took defendant's plea, was also the judge who heard the motion to withdraw the plea. Thus, he could rely on his observations of defendant's conduct and demeanor when defendant entered the plea, absent clear and convincing evidence those observations were misleading. (Ravaux, supra, 142 Cal.App.4th at p. 918.) Defendant's self-serving statements in his declaration did not rise to the level of clear and convincing evidence. (See Hunt, supra, 174 Cal.App.3d at p. 103.) Defendant's attempt to bolster his argument on appeal by citing to online sources of information about the medications he claimed to have taken is improper: that information was not before the trial court, and we cannot usurp the trial court's role of fact finder. (In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1416.) In particular, we may not consider purported evidence derived only from citations to online materials in an appellate brief. (In re K.P. (2009) 175 Cal.App.4th 1, 5.)
In fact, defendant's claims were not only unsupported but implausible on their face. It is hard to imagine that defendant could have been all at once "drowsy and dizzy," "frustrated," "anxious," and in a state of "panic" when he entered his plea, in the absence of any evidence before the trial court that taking the medications he mentioned could have such contradictory effects, especially on the day after he claimed to have taken them last. Moreover, defendant's assertion that he became frustrated and anxious when he realized the maximum sentence he was facing suggests: (1) despite his alleged drowsiness and dizziness, his judgment was not impaired, and (2) his reaction (if he really had such a reaction) merely manifested "buyer's remorse," which is not grounds to withdraw a plea. (Cf. Ravaux, supra, 142 Cal.App.4th at p. 919; People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)
Furthermore, the transcript of the plea hearing shows defendant responded promptly and appropriately to every question asked, and nothing said by defendant, his counsel, or Judge Orr at the hearing suggests defendant showed the slightest sign of impairment, let alone the dramatic effects alleged in defendant's declaration.
Finally, the fact that the attorney appointed to investigate the merits of defendant's motion submitted without offering further evidence demonstrates that the motion hung only on defendant's unsupported story, which was insufficient.
DISPOSITION
The judgment is affirmed.
/s/_________
HULL, Acting P. J. We concur: /s/_________
BUTZ, J. /s/_________
KRAUSE, J.