Filed 12/3/14
                            CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SECOND APPELLATE DISTRICT

                                        DIVISION SIX


THE PEOPLE,                                                2d Crim. No. B251272
                                                          (Super. Ct. No. 1426140)
     Plaintiff and Respondent,                             (Santa Barbara County)

v.

STEVEN MARK KUNES,

     Defendant and Appellant.


                 The walls of one’s home are no less confining than the walls of a prison
when one is on home detention. While on home detention, appellant Steven Mark
Kunes cut his global positioning system (GPS) electronic monitoring device, mailed it
to the sheriff, and flew to Pennsylvania. We conclude, among other things, his escape
was by force, a violation of Penal Code, section 4532, subdivision (b)(2).1
                 Kunes appeals a judgment after the trial court issued an order denying his
motion to withdraw his plea of no contest to one count of section 4532, subdivision
(b)(2).
                 Kunes contends he did not escape by force, and his trial counsel was
ineffective because he advised him to accept a plea agreement and did not inform him
that he had a colorable necessity defense. We affirm.




1
    All statutory references are to the Penal Code.
                  FACTUAL AND PROCEDURAL BACKGROUND
              Kunes's lengthy criminal history consists mainly of property crimes. He
has 15 prior felony convictions, including forgery, grand theft, and identity theft. He
has suffered four prior prison terms, and he previously absconded from parole.
              In July 2012, Kunes was serving a four-year prison sentence in county jail
pursuant to section 1170, subdivision (h)(2).2 The sheriff released Kunes to complete
his term in a home detention program pursuant to section 1203.016.3 The conditions of
home detention required Kunes to wear a GPS device around his ankle and to stay
within the premises of New House, a sober living facility, at all times except on
Wednesdays from 10:00 a.m. to 2:30 p.m., during which time Kunes could perform
necessary tasks within a defined geographical area.
              On Wednesday, August 22, 2012, at 2:31 p.m., Kunes left the defined
geographical area, setting off an alert at the sheriff's department. He used scissors to
remove his GPS device, and at 3:58 p.m., he mailed it to the sheriff's department from a
Federal Express store. Kunes stated in a declaration that he flew to Pennsylvania where
he stayed with his parents for about six months before sheriff's deputies contacted his
father by telephone. Kunes was arrested in Santa Barbara County about a week later,
drinking a martini in a Carpinteria restaurant.


2
 Section 1170, subdivision (h)(2) provides that felonies shall be punishable by
imprisonment in county jail for the term described in the underlying offense, unless the
defendant has a current or prior conviction for a serious or violent felony, is a sex
offender, or has suffered an aggravated white collar crime enhancement.
3
  Section 1203.016, subdivision (a) authorizes the board of supervisors of any county to
authorize a correctional administrator, such as the sheriff, to place inmates in a home
detention program in lieu of confinement in the county jail. As a condition of
participation, the inmate must agree to terms that include: "(1) The participant shall
remain within the interior premises of his or her residence during the hours designated
by the correctional administrator. [¶] . . . (3) The participant shall agree to the use of
electronic monitoring, which may include global positioning system devices or other
supervising devices for the purpose of helping to verify his or her compliance with the
rules and regulations of the home detention program. . . ." (Id., subd. (b)(1), (3).)
                                             2
               A first amended felony complaint charged Kunes with one count of
simple escape (§ 4532, subd. (b)(1)) and one count of escape by force or violence (id.,
subd. (b)(2)). It also alleged that he served four prior prison terms within the meaning
of section 667.5, subdivision (b). The simple escape charge carried a maximum term of
three years in state prison, while the forcible escape charge carried a maximum term of
six years. (§ 4532, subds. (b)(1), (2).) The four prior prison terms each carried an
additional one-year term. (§ 667.5, subd. (b).) The prosecutor advised Kunes that he
faced a possible new felony charge because he used a check with insufficient funds at
the sober living facility.
               At his preliminary hearing, Kunes pled no contest to the forcible escape
charge in exchange for: a midterm sentence of four years in state prison; dismissal of
the simple escape charge; dismissal of the prior prison term allegations; and a promise
that the prosecution will not file a new felony charge for an insufficient funds check if
within 90 days he pays the amount owed to the sober living facility.
               On his plea waiver form, Kunes wrote: "I committed the crime of escape
by force when, while participating in electronic monitoring/home detention in lieu of
custody to serve my prison sentence, I cut off my electronic monitoring device by force
and left to the East Coast of the United States knowing that I was committing an escape
in violation of [section] 4532."
               After the plea and before sentencing, Kunes's trial counsel declared a
conflict of interest. The trial court appointed substitute counsel to represent Kunes.
               Kunes's new attorney moved to withdraw Kunes's plea pursuant to section
1018 on the grounds that Kunes was factually innocent of forcible escape and his prior
attorney rendered ineffective assistance. Kunes filed an affidavit in which he declared
that he flew to Pennsylvania out of necessity to take care of his elderly parents, both of
whom had cancer. He said he first asked his supervising sheriff's deputy for permission,
but the deputy refused. Kunes declared that during the plea negotiations his attorney
falsely assured him the prosecutor knew of these circumstances, but later the prosecutor


                                             3
told Kunes he "didn't know that." Kunes declared that his attorney never advised him of
a possible "necessity defense." His attorney told him that the offer of a four-year term
was a good deal because the judge was likely to give him 10 years in state prison,
consisting of the high term for the forcible escape charge and four prior prison terms.
Kunes declared that if he had known he had a possible defense to the escape charge and
that the forcible escape charge was actually "absurd," he would not have accepted the
offer.
              In response, the prosecutor filed an affidavit, in which he stated that he
knew that Kunes claimed he escaped in order to care for his parents. The prosecutor
submitted transcripts of recorded jailhouse telephone conversations in which Kunes
gave his girlfriend other reasons for his escape, including that he "just didn't want to be
here anymore."
              The trial court denied Kunes's motion. It found there was no clear and
convincing evidence "that he wasn't told about potential defenses or that they would in
fact even apply." In weighing the credibility of Kunes's affidavit, the trial court
considered Kunes's history of theft-related crimes. The court recalled that at the time of
the plea there was a discussion that the forcible escape charge "may or may not have
some validity." It pointed out, "There are dozens of cases every day in this courthouse
where people plead to a charge which may or may not be proveable." It noted that
Kunes was "aware of the potential downside should he be convicted of all the charges
and all the prison priors be found to be true, he was looking at 10-plus years. The offer
going into this was six years, they ended up compromising at four years." At the
sentencing hearing, Kunes orally renewed his motion to withdraw his plea, against the
advice of his attorney. The trial court denied the motion.
                                      DISCUSSION
              Kunes waived his right to assert he is factually innocent of forcible escape
when he signed a "Waiver of Constitutional Rights and Plea" form in which he agreed
there was a factual basis for the plea and acknowledged, "I waive and give up my right


                                             4
to appeal." An order denying a motion to withdraw a guilty plea may be reviewed on an
appeal from the judgment, but "the merits of the issue of guilt or innocence are not
reviewable." (People v. Ribero (1971) 4 Cal. 3d 55, 63.) We will nevertheless review
Kunes's claims of "constitutional, jurisdictional, or other grounds going to the legality of
the proceedings" because he obtained a certificate of probable cause (§ 1237.5, subd.
(a); Ribero, at p. 63), unlike the defendant in People v. Panizzon (1996) 13 Cal.4th 68,
78, upon which the People rely for their contention that we should dismiss the appeal.
Kunes's cognizable claims are "ineffective waiver of constitutional rights . . . ,
ineffective assistance of counsel . . . , or other abuse of discretion in denying a motion to
withdraw a guilty plea." (Ribero, at p. 63, citations omitted.)
              We review a decision to deny a motion to withdraw a guilty plea for clear
abuse of discretion. (People v. Fairbank, supra, 16 Cal.4th 1223, 1254.) A defendant
who moves to withdraw his plea must demonstrate good cause by clear and convincing
evidence. (People v. Breslin (2012) 205 Cal.App.4th 1409, 1415-1416.) He must show
the trial court that "he or she was operating under mistake, ignorance, or any other
factor overcoming the exercise of his or her free judgment, including inadvertence,
fraud, or duress." (Id. at p. 1416.) He also must show that he would not have accepted
the plea bargain had it not been for the mistake. (Ibid.) We must adopt the trial court's
factual findings if substantial evidence supports them. (Fairbank, at p. 1254.)
              Substantial evidence supports the trial court's implied finding that Kunes
was not operating under any mistake, ignorance, or other factor that overcame his
exercise of free judgment when he changed his plea. The defenses of which he claims
ignorance were not viable.
              Kunes contends he was ignorant of a necessity defense. But the record
demonstrates that Kunes, his attorney, and the prosecutor were aware of the facts upon
which Kunes now relies for that defense and the facts do not support it. The trial court
and the prosecutor discredited Kunes's claim that he escaped to Pennsylvania because
his parents needed him to care for them. But even if it were true, it would not support a


                                             5
necessity defense. The defendant must prove that he received a specific threat of death,
forcible sexual attack, or substantial bodily injury in the immediate future and that he
immediately reported this threat to the proper authorities when he had attained a
position of safety from the immediate threat. (People v. Lovercamp (1974) 43
Cal.App.3d 823, 831–832; CALCRIM No. 2764.)4 If, in fact, Kunes visited his ailing
parents in Pennsylvania and then returned to Santa Barbara County, he did not report to
the authorities.
              Kunes does not demonstrate ineffective assistance of counsel because he
does not show that his counsel's performance was deficient or prejudicial. (Strickland v.
Washington (1984) 466 U.S. 668,700.) Kunes's attorney made a reasonable tactical
decision to recommend the negotiated four-year term instead of challenging the legality
of the forcible escape charge. Whether forcible removal of a GPS device constitutes
escape "by force" within the meaning of section 4532, subdivision (b)(2) is a question
of first impression, but not hard to answer. It does. The statute specifically proscribes


4
 CALCRIM No. 2764 provides:
"If you conclude that the defendant (escaped/[or] attempted to escape), that conduct was
not illegal if the defendant can prove the defense of necessity. In order to establish this
defense, the defendant must prove that:
"1. The defendant was faced with a specific threat of (death[,]/ [or] forcible sexual
attack[,]/[or] substantial bodily injury) in the immediate future;
"2. (There was no time for the defendant to make a complaint to the authorities/[or]
(There/there) was a history of complaints that were not acted on, so that a reasonable
person would conclude that any additional complaints would be ineffective);
"3. There was no time or opportunity to seek help from the courts;
"4. The defendant did not use force or violence against prison personnel or other people
in the escape [other than the person who was the source of the threatened harm to the
defendant];
"AND
"5. The defendant immediately reported to the proper authorities when (he/she) had
attained a position of safety from the immediate threat.
"The defendant has the burden of proving this defense by a preponderance of the
evidence. This is a different standard of proof from proof beyond a reasonable doubt. To
meet the burden of proof by a preponderance of the evidence, the defendant must prove
that it is more likely than not that each of the five listed items is true."
                                             6
escape from the place of confinement in a home detention electronic monitoring
program pursuant to section 1203.016. It increases the penalty when escape from the
home detention monitoring program is by force. Forcible removal of the GPS device is
quintessential forcible escape from a home detection monitoring program.
              Kunes argues that the force he used was insufficient because it did not
endanger life, but that is not an element of the offense. Forcible escape is "not
necessarily or inherently dangerous to human life." (People v. Lozano (1987) 192
Cal.App.3d 618, 632.) The "force" may be any wrongful use of force against property.
(CALCRIM No. 2761; see Lozano, at p. 627.) Breaking an officer's radio to prevent a
call for assistance is "sufficient to support a finding [of] the use of force or violence
against property." (Lozano, p. 627, fn. 8.) Making a hole in a ceiling constitutes "force
or violence" within the meaning of section 4532, subdivision (2). (People v. White
(1988) 202 Cal.App.3d 862, 865.) "The Legislature . . . create[d] a relatively large,
almost all-inclusive class, and . . . include[d] those whose escapes are accomplished
with a minimum amount of force against property." (Id. at p. 866.) Kunes
acknowledges that he cut off the GPS device with scissors to facilitate his escape to
Pennsylvania. This was a violation of his home detention. Had Kunes been confined in
prison and destroyed a security camera in the prison yard to avoid detection of an
escape, the result would be the same. The facts here are sufficient to support a charge
of forcible escape.
              Even if Kunes could have prevailed on a motion to dismiss the forcible
escape charge, the probable outcome would not have been more favorable. Kunes and
his counsel knew that if the forcible escape charge were dismissed, Kunes would still
face a minimum term of more than five years. Kunes acknowledges that he committed
simple escape, which carries a 16-month, two- or three-year term. (§ 4532, subd.
(b)(1).) Combined with his prior prison terms, the minimum term would exceed five
years. And Kunes was a strong candidate for the maximum term because of his prior
criminal history and his brazen decision to mail the GPS device back to the sheriff's


                                              7
department. Moreover, without the plea agreement, Kunes faced a new felony charge
for using an insufficient funds check. Kunes received effective assistance of counsel
and the trial court did not abuse its discretion when it denied his motion to withdraw the
plea.
                                     DISPOSITION
              The judgment is affirmed.
              CERTIFIED FOR PUBLICATION.




                                          GILBERT, P. J.
We concur:



              YEGAN, J.



              PERREN, J.




                                            8
                           Clifford R. Anderson III, Judge

                       Superior Court County of Santa Barbara

                        ______________________________


             Richard C. Gilman, under appointment by the Court of Appeal, for
Defendant and Appellant.


             Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General,
Peggy Z. Huang, Deputy Attorney General, for Plaintiff and Respondent.




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