Filed 5/18/16 P. v. Ruvalcaba CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068413

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. JCF32923)

JORGE PAREDES RUVALCABA,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Imperial County, Poli Flores,

Jr., Judge. Affirmed.



         Kevin Smith, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Warren J.

Williams, Deputy Attorneys General, for Plaintiff and Respondent.
          Jorge Paredes Ruvalcaba appeals from a judgment entered on two counts of

forcible rape with a child over 14 years of age (Pen. Code, § 261, subd. (a)(2)),1

following denial of his motion to withdraw his no contest plea to both counts. Ruvalcaba

asserts the trial court abused its discretion in denying the motion because he was unaware

of critical facts that would have provided a strong defense to the charges against him, and

he did not understand the terms of the plea on the day he signed the agreement. We

affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND

          Ruvalcaba was arrested for repeated rape and molestation of his daughter over a

period of five years when she was between the ages of 13 and 18. The prosecution

charged Ruvalcaba with two counts of forcible rape of a child over 14 years of age

(§ 261, subd. (a)(2)), one count of committing a lewd act upon a child (§ 288, subd.

(c)(1)), one count of oral copulation of a person 14 years of age or older (§ 288a, subd.

(c)(2)(C)), and two counts of sexual penetration by a foreign object (§ 289, subd.

(a)(1)(C)).

          Assisted by defense counsel Thomas Storey, Ruvalcaba entered a plea of no

contest to the forcible rape counts in exchange for dismissal of the remaining charges and

a 16-year sentence instead of the maximum possible 49 years. At the hearing on the plea,

the trial court questioned Ruvalcaba to ensure he understood the terms and consequences

of the agreement, he was not pressured to take the plea, and he had not taken medication



1         All further statutory references are to the Penal Code.
                                                2
that would interfere with his judgment. The parties agreed that a police report containing

Ruvalcaba's confession constituted the factual basis of the plea. The trial court, satisfied

that the agreement was freely and voluntarily made, accepted the plea and set the date for

sentencing.

       At the sentencing hearing, however, Ruvalcaba stated that he wanted to withdraw

his no contest plea and have the court appoint new defense counsel. He stated he was

under severe pressure and on medication when he signed the plea and therefore did not

understand what he was signing. He also said he was dissatisfied with Storey's

investigation and handling of the case. After a Marsden hearing,2 the court granted the

request for new counsel.

       Thereafter Ruvalcaba was appointed new counsel, who filed a formal motion to

withdraw the plea, which the prosecution opposed. In the motion, Ruvalcaba asserted

that Storey should have investigated the case more thoroughly, disclosed key facts to him

about the victim's credibility, and filed a motion to suppress his confession. Ruvalcaba

claimed that had he been aware of critical facts about the victim's credibility issues,

which "provided him with a strong defense to the charges against him," he would have

rejected the plea, gone to trial, and challenged his confession. Additionally, Ruvalcaba

claimed that on the day of the plea, he was under "sever[e] stress" and felt groggy and

confused because he had taken medication for anxiety and tension.




2      People v. Marsden (1970) 2 Cal.3d 118.
                                              3
       At the hearing on the motion to withdraw, the prosecution called Storey to testify

about Ruvalcaba's assertions. Storey stated that he had an investigator interview the

victim and the family. He stated that "[a]ccording to Mr. Ruvalcaba and to some of his

family members," the victim had credibility issues. Storey said that he spoke with

Ruvalcaba "regarding any possible challenges to the victim's credibility if this case were

to go to trial." However, Storey went on to say, "I never told [Ruvalcaba] that the victim

may be saying the perpetrator was someone else. [T]his alleged victim was molested on

a prior occasion. She was molested by her stepfather. Some of what she said happened

and the timing she said it happened lined up when she was living with the [stepfather],

not with Mr. Ruvalcaba. It led to credibility issues. [¶] There were other things that she

alleged as to Mr. Ruvalcaba. But there were . . . statements that she made when Mr.

Ruvalcaba wasn't living where she said he was living. Those were credibility issues. Did

we talk about all of those with Mr. Ruvalcaba? I don't know if we did or not. We talked

about a lot of things with Mr. Ruvalcaba."

       Storey also testified that while working on the case, he read transcripts of

Ruvalcaba's confession and discussed several times with Ruvalcaba the possibility of

excluding those statements at trial. Storey said that they did not go forward with the




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motion to suppress, however, because of the time limit on the plea offer and the

likelihood that the statements would be brought out at trial anyway. 3

       Storey also testified that over a period of months he discussed plea offers with

Ruvalcaba several times and encouraged, but did not pressure, Ruvalcaba to accept. He

explained how the plea offered 16 years' imprisonment rather than the maximum possible

term of 49 years. Storey said that on the day Ruvalcaba signed the plea, Storey went over

the entire form with him. Ruvalcaba did not tell Storey he was on medication, did not

appear groggy or confused, and seemed to understand the agreement's terms and

consequences.

       After hearing testimony and argument, the trial court denied the motion to

withdraw the no contest plea finding Ruvalcaba had not shown good cause. The court

did not address the argument that Storey improperly failed to disclose issues of the

victim's credibility. The court stated, "I think the only substantive point that Mr.

Ruvalcaba is making is with regard to the confession that he made." The court found that

under the test announced in Strickland,4 Storey's representation was not ineffective and

he provided adequate reasons for not moving to suppress the confession. Further, the

court found that Ruvalcaba voluntarily entered the plea and his "nebulous assertions"

regarding having taken medication and being under pressure failed to show otherwise.

3      Specifically, Storey said that even if the court suppressed the confession, if the
victim testified at trial, Ruvalcaba would need to testify to contradict the victim's
statements and on cross-examination, the prosecution would be able to use Ruvalcaba's
admissions to impeach him.

4      Strickland v. Washington (1984) 466 U.S. 668.
                                              5
The court sentenced Ruvalcaba according to the plea agreement and Ruvalcaba timely

appealed.

                                        DISCUSSION

       On appeal, Ruvalcaba asserts that even if Storey's actions did not amount to

ineffective assistance of counsel, Storey's failure to disclose crucial facts of the victim's

credibility caused Ruvalcaba to accept the plea agreement mistakenly. Ruvalcaba further

asserts that had he known he could have challenged his confession, he would have

continued to trial. Finally, Ruvalcaba contends that because he was under severe stress

and his medication caused him to be groggy on the day he signed the plea, he

demonstrated good cause to withdraw his plea and the trial court abused its discretion by

denying his motion.

       We reject Ruvalcaba's contentions.

                                       I. Legal Standards

       Section 1018 states: "On application of the defendant at any time before

judgment . . . the court may . . . for a good cause shown, permit the plea of guilty to be

withdrawn and a plea of not guilty substituted." In general, "[m]istake, ignorance or any

other factor overcoming the exercise of free judgment is good cause for withdrawal of a

guilty plea." (People v. Cruz (1974) 12 Cal.3d 562, 566.) However, "[a] plea may not be

withdrawn simply because the defendant has changed his mind." (People v. Nance

(1991) 1 Cal.App.4th 1453, 1456.) 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." (People v. McCrory (1871) 41 Cal. 458, 462.) It is the defendant's burden to

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demonstrate good cause by clear and convincing evidence. (People v. Wharton (1991)

53 Cal.3d 522, 585.)

       "The grant or denial of such a withdrawal motion is 'within the sound discretion of

the trial court and must be upheld unless an abuse thereof is clearly demonstrated.'

[Citation.] We are required to accept all factual findings of the trial court that are

supported by substantial evidence." (People v. Ravaux (2006) 142 Cal.App.4th 914, 917

(Ravaux).)

                                           II. Analysis

A.     Victim's Credibility Issues

       Ruvalcaba primarily argues that Storey's failure to disclose all critical facts

regarding the victim's credibility resulted in him accepting a plea without his free

judgment.

       An abuse of discretion may be shown where, at the time of the plea, the defendant

was unaware of crucial facts that would have provided a potentially meritorious defense

to the charged crime. (See People v. Harvey (1984) 151 Cal.App.3d 660, 670-671

(Harvey) [trial court abused its discretion in denying the motion to withdraw where the

defendant was unaware of a psychiatrist's report that potentially negated a required

element of the crime to which she pleaded guilty]; People v. Dena (1972) 25 Cal.App.3d

1001, 1007-1008 (Dena) [same except defendant was unaware of a blood alcohol test

report that could have supported a defense of diminished capacity]; People v.

Ramirez (2006) 141 Cal.App.4th 1501, 1504-1508 (Ramirez) [same except defendant was



                                              7
unaware of a supplemental police report that identified new defense witnesses and

implicated another suspect].)

       A defendant, however, is not required to be provided with knowledge of every

conceivable defense regardless of its merit, or provided with an opportunity to withdraw

a guilty plea upon discovery of new evidence that may have affected the case. (See, e.g.,

People v. Kunes (2014) 231 Cal.App.4th 1438, 1443-1445 (Kunes) [trial court did not

abuse its discretion in denying a motion to withdraw despite defendant's claim that his

defense counsel failed to tell him about a possible necessity defense]; People v. Breslin

(2012) 205 Cal.App.4th 1409, 1415-1418 [same result even though assault victim

recanted his statement and said the incident was an accident after defendant pleaded

guilty].)

       Here, Ruvalcaba is not entitled to relief because he already knew about the

victim's credibility problem. Although Ruvalcaba claims that Storey failed to disclose

inconsistencies in the victim's statements, Storey testified that "[a]ccording to Ruvalcaba

and to some of his family," the victim had credibility issues. (Italics added.) Although

Storey could not remember whether he told Ruvalcaba about the specifics of the

discrepancies, Ruvalcaba was a source from which Storey identified the credibility

issues. This fact was sufficient to support a finding that Ruvalcaba was not ignorant of

the victim's credibility problem.

       Although the trial court did not address the issue of the victim's credibility in its

denial, "[t]he court is presumed to have considered all of the relevant factors in the

absence of an affirmative record to the contrary." (People v. Myers (1999) 69

                                              8
Cal.App.4th 305, 310.) After hearing Storey's testimony, the court found "the only

substantive point that Mr. Ruvalcaba is making is with regard to the confession that he

made." We cannot say the trial court abused its discretion in refusing to entertain

Ruvalcaba's claim that the allegedly unknown credibility issues amounted to mistake,

ignorance or any other factor overcoming free judgment.

       Further, the alleged unknown facts were not as crucial to Ruvalcaba's defense as

he purports. Ruvalcaba claims that the victim's credibility issues would have provided a

strong defense to the charges against him. However, the credibility issues were

inconsistencies in the victim's statements to police, rather than concrete exculpatory

evidence. Assuming the victim testified at trial, she still would have implicated

Ruvalcaba for the offenses. Thus, the credibility issues only provided a potential strategy

for cross-examination of the victim at trial. They did not negate a required element of the

crimes to which Ruvalcaba pleaded no contest, nor did they give rise to a previously

unavailable defense to those charges. (Cf. Harvey, supra, 151 Cal.App.3d at p. 665

[psychiatrist's report suggested defendant was incapable of malice, a required element of

second degree murder to which defendant pleaded guilty]; Dena, supra, 25 Cal.App.3d at

p. 1007 [blood alcohol test report provided evidence to support a previously abandoned

defense of diminished capacity].) Ruvalcaba relies on Ramirez to assert that the

unknown information does not need to be entirely exculpatory in order to present good

cause. (Ramirez, supra, 141 Cal.App.4th at p. 1508 ["[t]he fact that the new information

did not uncontrovertibly exonerate appellant is beside the point"].) While this is true, the

evidence does need to be important enough to "cast[] the case against him in an entirely

                                             9
different light." (See ibid.) In light of the fact that the charged offenses happened over a

period of five years, this is simply not the case for Ruvalcaba.

B.     Confession

       Ruvalcaba next argues that had he known he could have challenged his

confession, he would not have pleaded no contest. However, there was substantial

evidence demonstrating that Storey in fact discussed several times with Ruvalcaba the

possibility of excluding the confession at trial. Such knowledge precludes any claim of

mistake on these grounds. (See, e.g., Kunes, supra, 231 Cal.App.4th at p. 1443 [motion

to withdraw a plea was properly denied where defendant was aware of the facts that

supported the unpursued defense of necessity].) Because Ruvalcaba was fully aware of

the possibility of suppressing the confession and still voluntarily signed the plea, it was

not an abuse of discretion for the trial court to deny the motion to withdraw.

C.     Understanding of the Plea

       Finally, we reject Ruvalcaba's contention that he should have been allowed to

withdraw his plea because he was under severe pressure and had taken medication on the

day he signed the plea. A defendant's general claim that he was pressured into signing

the plea is insufficient to show good cause to withdraw where "[n]othing in the record

indicate[d] he was under any more or less pressure than every other defendant" in the

same situation. (See People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) Here, the

trial court questioned Ruvalcaba's "nebulous assertions that he felt pressure and stress"

because he provided no context to these claims and there was nothing in the transcript of

the plea hearing that indicated he was under overwhelming pressure. The trial court

                                             10
acknowledged that, like any person in Ruvalcaba's position, he was likely under stress,

but "that stress or pressure didn't vitiate the voluntary nature of his plea."

       In addition, Ruvalcaba's vague assertion, without corroborating evidence, that

medication impeded his exercise of free judgment was properly rejected by the trial court.

(See Ravaux, supra, 142 Cal.App.4th at p. 918 [motion to withdraw was properly denied

where "[t]he sole evidence that [defendant's] judgment was affected by medication [was

his] own assertions"].) Here, the court was suspicious of Ruvalcaba's vague statement

about the medication he claimed to have taken. At the hearing on the motion to

withdraw, Ruvalcaba did not indicate what kind of sedatives he took or give a reason for

taking them. This court cannot second guess the credibility determinations of the trial

court. We see no abuse of discretion in the trial court's refusal to credit Ruvalcaba's

uncorroborated claims that pressure and medication overcame his free judgment.

                                       DISPOSITION

       The judgment is affirmed.


                                                                                 PRAGER, J.*
WE CONCUR:



BENKE, Acting P. J.



NARES, J.


*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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