Filed 3/17/16 P. v. Garcia CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E064728

v.                                                                      (Super.Ct.No. FWV1503516)

MICHAEL ALLEN GARCIA,                                                   OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. James J. Hosking,

Judge. Affirmed.

         Michael Allen Garcia, in pro. per., and Christine M. Aros, under appointment by

the Court of Appeal, for Defendant and Appellant.

         No appearance for Plaintiff and Respondent.




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          Defendant and appellant Michael Allen Garcia was charged by felony complaint

with first degree residential burglary (Pen. Code,1 § 459, count 1), resisting a peace

officer (§ 148, subd. (a)(1), count 2), and disobeying a domestic relations court order

(§ 273.6, subd. (a), count 3). Defendant pled not guilty. The complaint was later

amended by interlineation to change the date the crimes occurred and to add count 4,

alleging that defendant had committed corporal injury to a spouse. (§ 273.5, subd. (a),

count 4.) Pursuant to a plea agreement, defendant pled no contest to counts 1 and 4. He

also admitted that he violated his probation in another case by his conduct in the instant

case. The court sentenced him to two years in state prison.

          Defendant filed a handwritten notice of appeal, in propria persona. Appellate

counsel subsequently filed an amended notice of appeal, based on the sentence or other

matters occurring after the plea, and challenging the validity of the plea or admission.

The amended notice of appeal stated that defendant would mail in his request for

certificate of probable cause. However, it appears that defendant did not do so. We

affirm.

                                PROCEDURAL BACKGROUND

          On September 22, 2015, defendant was charged by felony complaint with first

degree residential burglary (§ 459, count 1), resisting a peace officer (§ 148, subd. (a)(1),




          1   All further statutory references will be to the Penal Code, unless otherwise
noted.


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count 2), and disobeying a domestic relations court order (§ 273.6, subd. (a), count 3).

He pled not guilty.

       On October 6, 2015, the case was called for a preliminary hearing. At the outset

of the hearing, the People requested the complaint to be amended by interlineation to

change the date the crimes occurred and to add count 4, alleging that defendant had

committed corporal injury to a spouse. (§ 273.5, subd. (a), count 4.) The court granted

the request. Defense counsel then asked to approach the bench and informed the court

that defendant decided to accept the People’s plea offer. The court addressed defendant

directly and asked if he wanted to accept or reject the offer. Defendant initially said he

was rejecting it. However, he almost immediately stated, “I am sorry, your Honor. I’ll

take it.” The court asked to confirm with defendant one more time that he wanted to

accept the offer. The parties took a recess and upon returning to the courtroom, the court

again asked defendant if he was accepting or rejecting the offer. Defendant confirmed

that he was accepting it. The parties took another recess to allow defense counsel time to

review the change of plea form with defendant.

       Upon returning to the courtroom, defendant withdrew his plea of not guilty and

entered a plea agreement. Before accepting the plea, the court questioned him. It asked

defendant if he personally initialed and signed the plea form, and he confirmed that he

did. The court asked if he discussed the plea form with his attorney and understood

everything on it. Defendant confirmed that he understood all the constitutional rights he

was waiving, the nature of the charges, and the penalties and punishments. He agreed



                                             3
that he understood the entire plea agreement and what would happen to him on the

probation violation in his other case, if he admitted that he violated probation. One of the

terms of the plea agreement stated that there would be a restraining order as to the victim.

Defendant asked whether the restraining order meant that he could not write to his

children (the children). The court noted that the order did not mention the children. The

prosecutor stated that the children lived with the victim, so any letters would reach her

residence. Defense counsel clarified that the reason the section 273.5 charge was added

was that the victim requested a long restraining order, and they specifically negotiated

that the restraining order would not apply to the children. Defense counsel further

explained that that was why they added count 4 pursuant to People v. West (1970) 3

Cal.3d 595 (West). Defendant said he had no further questions. He then affirmed that no

one had made any promises of a lesser sentence, no one had used threats or violence to

force him to plead no contest, he was not under the influence of alcohol or medicine, and

he had enough time to discuss his case with his attorney, including all of his rights,

potential defenses, penalties, and future consequences. Defense counsel agreed that she

had adequate time to discuss the issues with defendant and that he understood everything

on the plea form. The court found that defendant had read and understood the plea form

and was knowingly, intelligently, and voluntarily waiving his constitutional rights.

Defendant orally entered a plea of no contest to counts 1 and 4. Defense counsel joined,

and the People accepted. As to count 1, the parties stipulated to the police reports and

felony complaint as establishing a factual basis for the plea. The parties also agreed that



                                              4
the plea to count 4 was being made pursuant to West, which the court explained stood for

the proposition that, if even there was no factual basis for the plea, a plea agreement

could go forward if it was in defendant’s best interest. The court dismissed the remaining

counts and allegations. It then sentenced defendant, pursuant to the agreement, to the low

term of two years on count 1, and one year concurrent on count 4.2 The court also

sentenced him to a consecutive eight months for his probation violation in the other case.

                                      DISCUSSION

       Defendant appealed and, upon his request, this court appointed counsel to

represent him. Counsel has filed a brief under the authority of People v. Wende (1979)

25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of

the case and one potential arguable issue: whether the court properly advised defendant

of his constitutional rights and the consequences of pleading guilty, and whether

defendant properly waived his rights. Counsel has also requested this court to undertake

a review of the entire record.

       We offered defendant an opportunity to file a personal supplemental brief, which

he has done. In a handwritten brief, defendant contends that: (1) he never intended to

enter a plea agreement, and the record shows he rejected it; however, his attorney used

“bull-dogging tactics” to get him to accept the deal; (2) the prosecution added the section


       2 We note that the abstract of judgment in the appellate record incorrectly lists
count 1 as corporal injury to a spouse (§ 273.5, subd. (a)), rather than first degree
residential burglary (§ 459). However, defendant’s opening brief indicates that the trial
court corrected the original abstract of judgment on December 22, 2015.


                                             5
273.5 charge (count 4) after he was talked into taking the deal, and there was no factual

basis for that charge; (3) he was in a “heightened state of emotion[al] stress and

depression, duress . . . from the constant badgering of defense counsel to have him take a

plea bargain”; (4) the prosecution used “malicious tactics to prosecute this action for the

sake of gaining a conviction”; (5) defense counsel had him plead no contest to the

corporal injury charge (count 4) without telling him the elements required to prove it and

without a factual basis; (6) defense counsel did not explain the burden of proof of the

burglary charge, and there could be no legal or factual basis for burglary, since defendant

entered the home he shared with his wife; (7) the test was whether there was substantial

evidence to support the elements; and (8) he had no intent to commit a felony when he

entered the home. Defendant also discusses due process rights, complains about a

protection order, and asserts that he and the victim are married, he caught her cheating on

him, and she has “done everything in her power to make sure [he stays] in jail.”

Defendant ultimately requests this court to allow him to withdraw his plea.

       “A defendant who seeks to withdraw his guilty plea may do so before judgment

has been entered upon a showing of good cause.” (People v. Weaver (2004) 118

Cal.App.4th 131, 145; see § 1018.) “To establish good cause, it must be shown that

defendant was operating under mistake, ignorance, or any other factor overcoming the

exercise of his free judgment. [Citations.] Other factors overcoming defendant’s free

judgment include inadvertence, fraud or duress. [Citations.] However, ‘[a] plea may not

be withdrawn simply because the defendant has changed his mind.’ [Citations.]”



                                             6
(People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) Here, judgment has already been

entered. Furthermore, defendant has failed to show good cause for withdrawing his plea.

The record shows that he freely pled no contest. Although the record does show that he

told the court he was rejecting the prosecution’s offer, as defendant points out, it also

shows that he immediately changed his response and accepted the offer. Moreover,

nothing in the record indicates that any factor overcame the exercise of defendant’s free

judgment. Rather, the record shows that he understood all the constitutional rights he

was waiving, the nature of the charges, and the penalties and punishments. He

understood the entire plea agreement and what would happen to him on the probation

violation in his other case, if he admitted that he violated probation. Contrary to his

claim on appeal, defendant confirmed with the court that no one had used threats or

violence to force him to plead no contest. After thoroughly questioning him, the court

found that defendant had read and understood the plea form and was knowingly,

intelligently, and voluntarily waiving his constitutional rights. In addition, the parties

stipulated to the police reports and felony complaint as establishing a factual basis for the

plea in count 1, and the parties agreed that the plea to count 4 was being made pursuant to

West, supra, 3 Cal.3d 595. We further note that “when a defendant pleads guilty or no

contest and is convicted without a trial, only limited issues are cognizable on appeal. A

guilty plea admits every element of the charged offense and constitutes a conviction

[citations], and consequently issues that concern the determination of guilt or innocence

are not cognizable. [Citations.]” (In re Chavez (2003) 30 Cal.4th 643, 649.) Thus,



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defendant’s claims concerning the elements of the charges and the sufficiency of the

evidence are not cognizable. Ultimately, none of the issues raised by defendant

constitute good cause to withdraw his plea.

      Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

conducted an independent review of the record and find no arguable issues.

                                     DISPOSITION

      The judgment is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                             HOLLENHORST
                                                                       Acting P. J.


We concur:


MILLER
                          J.


CODRINGTON
                          J.




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