Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD222808 Michael T. Smyth, Judge.
McDONALD, J.
Defendant Oscar Rivera entered a guilty plea to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). On appeal, he contends the trial court abused its discretion by denying his motion to withdraw his plea.
All statutory references are to the Health and Safety Code unless otherwise specified.
FACTS
Rivera pleaded guilty to possession of methamphetamine (§ 11377, subd. (a)). A few weeks later, Rivera moved to withdraw the guilty plea. Rivera claimed he was not aware deportation was a consequence of the guilty plea. He claimed had he been aware deportation was a consequence, he would not have pleaded guilty.
After witness testimony at the hearing on the motion to withdraw the guilty plea, the court found Rivera's entry of the guilty plea was voluntary and knowing, and denied the motion. The court issued a certificate of probable cause.
DISCUSSION
Rivera contends his guilty plea was not voluntary and knowing and he received ineffective assistance of counsel because his counsel did not properly advise him of the immigration consequences of his plea. Rivera testified he entered the guilty plea because his counsel told him he could go home if he signed the guilty plea.
Courts may permit withdrawal of a guilty plea on a showing of good cause. (Pen. Code, § 1018.) Good cause is shown where the plea was entered as a result of mistake, ignorance, inadvertence, or overreaching. (People v. Urfer (1979) 94 Cal.App.3d 887, 892.) In People v. McCrory (1871) 41 Cal. 458, 462, the Supreme Court stated, "when there is reason to believe that the plea has been entered through inadvertence, and without due deliberation... the Court should be indulgent in permitting the plea to be withdrawn." It further stated, however, "[a] party should not be allowed to trifle with the Court by deliberately entering a plea of 'guilty' one day and capriciously withdrawing it the next." (Ibid.) The decision to allow withdrawal of a guilty plea rests in the sound discretion of the trial court and will not be disturbed on appeal unless an abuse of discretion is clearly demonstrated. (People v. Superior Court (Giron)(1974) 11 Cal.3d 793, 796.)
Defendants have a constitutional right to effective assistance of counsel in a criminal case (Gideon v. Wainwright (1963) 372 U.S. 335) and denial of effective assistance of counsel is good cause to withdraw a guilty plea. (In re Alvernaz (1992) 2 Cal.4th 924, 934.) To demonstrate ineffective assistance of counsel a defendant must show counsel's performance fell below an objective standard of reasonableness. Defendant also must show prejudice, that is, "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington (l984) 466 U.S. 668, 688, 694.)
Defense counsel testified that when she met with Rivera, she showed him a copy of the complaint, told him what he was charged with, and went over the facts of the case with him. Rivera admitted to counsel that the drugs found by police were his. She told Rivera the prosecutor offered felony probation and credit for time served. Counsel told Rivera that he had an immigration hold and a guilty plea could result in deportation. Rivera told her he accepted the offer and wanted to end this case and deal with the U.S. Citizen and Immigration Services (formerly known as the Immigration and Naturalization Services or INS). Rivera testified at his plea hearing that no one promised him anything other than probation and credit for time served. Rivera signed the plea form and told the court he understood his guilty plea could result in his deportation.
The power to judge credibility and resolve factual conflicts lies with the trial court. On appeal, all presumptions must be drawn in favor of proper exercise of the power, and the trial court's express or implied findings of fact must be upheld if supported by the evidence. (People v. Superior Court (Keithley)(1975) 13 Cal.3d 406, 410.)
The record does not support Rivera's claim that his guilty plea was involuntary and unknowing. His counsel and the trial court told him, which he acknowledged, that a guilty plea might result in his deportation. Nonetheless, Rivera admitted the drugs were his, signed the plea form, and accepted the offer to end the case and deal with immigration. Thus, the trial court reasonably concluded Rivera did not enter the guilty plea under mistake or ignorance, but rather "he took the best thing he could at the time, which was get out on this case and deal with I.N.S. or immigration."
This record contains substantial evidence to support the trial court's findings. Therefore, the trial court did not abuse its discretion in denying Rivera's motion to withdraw his guilty plea.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J.AARON, J.