Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-060376-1
Swager, J.
Defendant entered a no contest plea to failure to register as a sex offender (Pen. Code, § 290), and admitted allegations of a prior strike conviction (Pen. Code, §§ 667, 1170.12) and two prior prison terms (Pen. Code, § 667.5, subd. (b)). He received a state prison term of four years eight months. In this appeal he challenges the validity of his plea. We find that the plea was knowing and voluntary, and affirm the judgment.
All further statutory references are to the Penal Code.
In light of defendant’s plea, we need not recite the facts pertinent to the underlying offense or enhancements which he admitted. We will instead concentrate on the facts associated with the entry of defendant’s plea.
Defendant brought a Marsden motion for substitution of counsel when he appeared at a hearing on October 2, 2006. Defendant’s complaints with his attorney were related to her failure to contact or secure the testimony of witnesses – both at the previous preliminary hearing and in preparation for trial – to support his claim that he continued to reside at his last specified registered address in Clayton. Defendant also expressed that he did not “trust” his attorney, and felt she was “lying” to him. In response, defense counsel thoroughly detailed for the court her efforts to discuss the case with the defense witnesses, and the information she had obtained from them. The trial court then expressed that defense counsel “has done everything that she possibly can” in the case. The Marsden motion was denied.
People v. Marsden (1970) 2 Cal.3d 118. Defendant also “indicated a desire to obtain a private attorney,” but apparently did not pursue that request.
Defendant also discussed with the trial court the plea offer from the prosecution of five years. The court observed that defendant apparently felt the offer was “not satisfactory, and that’s for you to decide, of course.” The court added that defense counsel had no control over the plea offer. “That comes from the People. Remember, if you’re convicted of this matter, you go to prison for life.” After defendant acknowledged that he understood, the court stated that “from the People’s perspective, their offer is probably a generous one. From your perspective, it’s not.” The court further explained to defendant: “You don’t have to accept that. You can go to trial, and if you choose to go to trial and are convicted, don’t look at me and tell me your attorney never told me that, and I’ve told you that, that those are the possibilities, assuming you’re convicted.”
Following a discussion of the logistics of facilitating the appearance of defense witnesses at trial, defendant indicated that he assumed he “was going to be allowed to at least get a private attorney,” and if not he “was talking” to defense counsel about the plea offer. The trial court gave defendant the opportunity to further discuss the plea offer with counsel. After a brief recess of the proceedings, defense counsel indicated that the prosecution was “willing to come down to four and a half” years, and defendant was “going to take . . . the slightly better offer.”
At a later appearance the same day, the court noted that a negotiated disposition had been reached. The change of plea form with defendant’s initials and signature was accepted by the court. Defendant affirmed for the court that he read, discussed with counsel, and understood the provisions of the change of plea form. He admitted the charge of failure to register as a sex offender, the prior section 667.5, subdivision (b) robbery conviction, the prior prison term allegation, and probation ineligibility allegations. The court found a factual basis for the plea, and that the plea had been entered “freely, knowingly, intelligently, and voluntarily.”
DISCUSSION
The sole contention presented by defendant on appeal is that his plea was involuntary. He focuses on statements made by the trial court during the Marsden hearing to argue that his plea was coerced by the threat of a life sentence. Defendant points out that during discussion of the merits of the prosecution’s settlement offer the court stated, “Remember, if you’re convicted of this matter, you go to prison for life.” Defendant claims that the court thus expressed an unequivocal warning “that if he did not take the offer, then the judge would sentence him under the Three Strikes law to a term of 25 years to life.” He also maintains that the coercive effect of the life sentence threat was enhanced by the court’s further warning that if he chose to go to trial and was convicted, “don’t look at me and tell me your attorney never told me that, and I’ve told you that . . . those are the possibilities, assuming you’re convicted.” Defendant submits that the coercive effect of promises or threats are particularly egregious and influential where, as here, sentencing may occur for a “non-serious offense under the Three Strikes law,” so “the court should be especially careful not to add to the coercive atmosphere of the case.”
Defendant obtained a certificate of probable cause, so the issue is cognizable. (People v. Jones (1995) 10 Cal.4th 1102, 1112, fn. 5; People v. Clark (1996) 51 Cal.App.4th 575, 580.)
A plea, like any other waiver of constitutional rights, “may be accepted by the court only if knowing and intelligent–made with a full awareness of the nature of the right being waived and the consequences of the waiver. In addition, the waiver must be voluntary.” (People v. Smith (2003) 110 Cal.App.4th 492, 500; see also New York v. Hill (2000) 528 U.S. 110, 114–118; Colorado v. Spring (1987) 479 U.S. 564, 573.) When a defendant elects to waive the fundamental constitutional rights that accompany a trial by pleading guilty “the record must reflect that the defendant did so knowingly and voluntarily—that is, he or she was advised of and elected to refrain from exercising the fundamental rights in question.” (People v. Collins (2001) 26 Cal.4th 297, 308.) Under the governing test, a plea is valid “if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.” (People v. Howard (1992) 1 Cal.4th 1132, 1175; see also North Carolina v. Alford (1970) 400 U.S. 25, 31; People v. Torres (1996) 43 Cal.App.4th 1073, 1082; People v. Knight (1992) 6 Cal.App.4th 1829, 1831–1832.) In contrast, “guilty pleas obtained through ‘coercion, terror, inducements, subtle or blatant threats’ are involuntary and violative of due process. [Citation.]” (In re Ibarra (1983) 34 Cal.3d 277, 287.)
As a general rule, a plea of guilty is invalid if it was entered by “ ‘mistake, ignorance or inadvertence or any other factor overreaching defendant’s free and clear judgment.’ [Citations.]” (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 797; see also In re Vargas (2000) 83 Cal.App.4th 1125, 1142; People v. Mortera (1993) 14 Cal.App.4th 861, 864; People v. Hunt (1985) 174 Cal.App.3d 95, 103.) Thus, if a guilty plea is induced by promises or threats it is involuntary. (People v. Collins, supra, 26 Cal.4th 297, 312.) “Coercion, either in the form of penalizing a defendant for exercising a constitutional right or promising leniency to a defendant for refraining from exercising a right, renders a waiver involuntary.” (People v. Dixon (2007) 153 Cal.App.4th 985, 990.) However, involuntariness is found only if threats, duress, or coercion overcome the exercise of the defendant’s “ ‘free judgment.’ ” (People v. Sandoval (2006) 140 Cal.App.4th 111, 123, quoting from People v. Weaver (2004) 118 Cal.App.4th 131, 145–146.) We review the record independently to determine the voluntariness of the waiver of rights and entry of the plea. (See People v. Williams (1997) 16 Cal.4th 635, 659–660; People v. Brewer (2000) 81 Cal.App.4th 442, 455; People v. Simpson (1991) 2 Cal.App.4th 228, 232.)
Defendant directs our attention to the decision in People v. Collins, supra, 26 Cal.4th 297, to claim that the trial court’s comments intimidated his exercise free judgment in entering into the plea. In Collins, the trial court gave the necessary advisements before taking the waiver of a jury trial, but also made prior statements to the defendant that “ ‘there might well be a benefit in [waiving a jury trial]. Just by having waived jury, that has some effect on the court.’ ” (Id. at p. 302, italics omitted.) The court did not specify any particular benefit to defendant, but confirmed that there would be “ ‘some benefit’ ” upon entry of a plea. (Ibid.) The California Supreme Court concluded that the trial court’s promise of “ ‘some benefit’ ” was an improper inducement which rendered the waiver involuntary. (Id. at pp. 304, 312.) The court recognized the established rule “that the state may not punish a defendant for the exercise of a constitutional right, or promise leniency to a defendant for refraining from the exercise of that right. [Citations.] Coercion in either form has been rejected, whether its source is executive, legislative, or judicial in nature.” (Id. at p. 306.) The court then explained: “[T]he objective of the trial court’s comments was to obtain defendant’s waiver of a fundamental constitutional right that, by itself (when defendant elects to go to trial), is not subject to negotiation by the court. In effect, the trial court offered to reward defendant for refraining from the exercise of a constitutional right. [Citations.] The circumstance that the trial court did not specify the nature of the benefit by making a promise of a particular mitigation in sentence, or other reward, does not negate the coercive effect of the court’s assurances. The inducement offered by the trial court to defendant, to persuade him to waive his fundamental right to a jury trial, violated defendant’s right to due process of law.” (Id. at p. 309.)
Defendant argues that in the present case the trial court did not offer a vague possible inducement of benefit, as in Collins, but instead even more coercively and effectively threatened that if he “did not plead guilty he would be locked up for the rest of his life.” We do not agree with defendant’s proferred, coercive interpretation of the trial court’s comments as a threat to impose a life sentence. Nothing in the record suggests to us that the court expressed any view to defendant on the sentence to be imposed if he was convicted. We cannot examine the court’s admonition, “Remember, if you’re convicted of this matter, you go to prison for life,” without reference to the entire discussion of the alternatives available to defendant. We must examine the “totality of the circumstances to determine the voluntariness and intelligence of the plea.” (People v. Allen (1999) 21 Cal.4th 424, 440, italics added; see also People v. Guzman (1993) 14 Cal.App.4th 1420, 1422.) First, the comment was preceded by the court’s express acknowledgement to defendant that acceptance of the plea offer was “for you to decide, of course.” Immediately after referring to the life sentence, the court repeated that defendant was not required to accept the five-year plea offer, then explained to him that he had been warned, “those are the possibilities, assuming you’re convicted.” (Italics added.) Rather than enhancing the overt threat of a life sentence, we think the trial court’s subsequent comment must be interpreted in context as accurately advising defendant of the potential consequence to him under the Three Strikes law in the event he proceeded to trial and suffered a conviction.
We thus find that defendant was neither misled nor coerced into his plea. No impermissible threat or offer of leniency resulted from the trial court’s comments. The record shows defendant was faced with the disagreeable prospect of defense witnesses who, in the opinion of his attorney, may not be able to provide the exonerating testimony he wanted or expected. The court mentioned the “serious questions” defense counsel had raised about the witnesses during the Marsden hearing, but did not make any value judgment about them. Other than briefly discussing the alternatives available to defendant, the court did nothing more than properly and accurately elucidate the possible consequences of a guilty verdict, and point out the benefit that may naturally accrue from entry of a plea. (See People v. Ray (1996) 13 Cal.4th 313, 339–341; People v. Vasila (1995) 38 Cal.App.4th 865, 874.) The court then briefly recessed the proceedings to grant defendant the opportunity to discuss the matter with his attorney. When the parties returned to court, the prosecution improved the offer slightly, whereupon it was accepted by defendant. At the change of plea hearing, the court reaffirmed that defendant had been advised of the consequences of the plea by his counsel. The fact that appellant was displeased with the apparent necessity of entering into a negotiated disposition to avoid the prospect of a lengthy sentence does not render the plea involuntary. “We distinguish ‘involuntary’ from ‘unwilling’ acceptance” of a plea; “it is ‘involuntary’ if done without choice or against one’s will, unwillingly done if through only reluctance.” (People v. Knight (1987) 194 Cal.App.3d 337, 344.) Defendant’s plea may have been reluctantly entered, but we conclude that it was not a product of improper inducement, intimidation, coercion, or deception.
Accordingly, the judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.