Filed 12/22/14 P. v. Mead CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Trinity)
                                                            ----




THE PEOPLE,                                                                                  C074649

                   Plaintiff and Respondent,                                      (Super. Ct. Nos. 12F0106,
                                                                                    12F0144A, 13F0057)
         v.

WILFRED JOSEPH MEAD,

                   Defendant and Appellant.




         After pleading guilty to several charges surrounding the possession of
methamphetamine, defendant Wilfred Joseph Mead informed the court at a sentencing
hearing that he wanted to withdraw his guilty pleas. Without inquiring into defendant’s
basis for withdrawing the pleas, the trial court denied the motion and sentenced defendant
to six years in prison and two concurrent two-year sentences.
         On appeal, defendant challenges the trial court’s denial of his motion to withdraw
his pleas, arguing the trial court abused its discretion and violated his right to due process
and his counsel was ineffective. We affirm.

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                   FACTUAL AND PROCEDURAL BACKGROUND
       Within one year, defendant was caught with methamphetamine on his person three
times.1 Three separate cases were filed against him. The first case charged defendant
with possession and transportation of a controlled substance (felonies), possession of
drug paraphernalia (misdemeanor), and driving on a suspended license (misdemeanor). It
also alleged defendant had one conviction for driving on a suspended license, another
conviction pending for driving on a suspended license, four prior prison terms, and an
exemption from serving his sentence in local custody. The second case charged
defendant with possession of a controlled substance (felony), possession of a controlled
substance while armed (felony), transportation of a controlled substance (felony), and
possession of drug paraphernalia (misdemeanor). This complaint alleged the same
enhancements with an additional enhancement for being on bail when he committed these
offenses. The third case charged defendant with transportation and possession of a
controlled substance, and the aforementioned enhancements. At three different hearings,
defendant pled not guilty to all charges and denied all allegations.
       On July 31, 2013, defendant pled guilty to three counts of transportation of a
controlled substance and one count of possession of a controlled substance while armed.
He admitted one prior prison term and that he was exempt from serving his sentence in
local custody. The remaining counts and allegations were dismissed.
       On August 21, 2013, at the commencement of defendant’s sentencing hearing for
all three cases, defense counsel notified the court that defendant wanted to withdraw his
guilty pleas in all three cases. Neither defendant nor defense counsel stated a basis for
the withdrawal of the pleas. The trial court asked counsel for the People to respond to the
request, and counsel argued against the motion, asserting that defendant entered into the


1      The substantive facts underlying defendant’s arrests and convictions are not
included because they are not relevant to the disposition of this appeal.


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pleas voluntarily and he should not be allowed to withdraw his pleas simply because he
changed his mind. The trial court then denied the motion and proceeded with sentencing.
                                       DISCUSSION
       On appeal, defendant challenges the denial of his motion to withdraw his pleas
arguing: (1) the trial court abused its discretion and denied him his constitutional right to
due process when it failed to inquire into the grounds for his request to withdraw his
pleas; and (2) counsel was ineffective for failing to provide a basis for why defendant
wanted to withdraw his pleas.
       Penal Code2 section 1018 provides that “the court may . . . for a good cause
shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.”
The withdrawal of a plea is within the discretion of the trial court and its action must be
upheld on appeal unless an abuse of discretion is clearly shown. (People v. Burkett
(1953) 118 Cal.App.2d 204, 209-210.) So long as there exists “a reasonable or even
fairly debatable justification, under the law, for the action taken, such action will not be
[disturbed], even if, as a question of first impression, we might feel inclined to take a
different view from that of the court below as to the propriety of its action.” (Harrison v.
Sutter St. Ry. Co. (1897) 116 Cal. 156, 161.)
                                                I
    The Trial Court Had No Duty To Inquire Into The Basis For Defendant’s Motion
       The first issue is whether the trial court denied defendant his constitutional right to
due process or abused its discretion by not inquiring into defendant’s grounds to
withdraw his pleas. First, section 1018 comports with the guarantee of due process of
law. (People v. Hunt (1985) 174 Cal.App.3d 95, 107.) Therefore, if the trial court abided
by the requirements of section 1018, it did not violate defendant’s right to due process in
denying his motion to withdraw the pleas. (See Hunt, at p. 107.) Second, section 1018


2      All section references hereafter are to the Penal Code.

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gives absolute discretion to the trial court regarding whether to accept a plea by a
represented defendant, and it contains no language that requires a court to positively
inquire into the grounds for a plea withdrawal. (See § 1018.)
       Defendant argues the trial court had a duty to inquire into his grounds for
withdrawing his pleas. Not so. “On the contrary, the burden [i]s on the defendant, who
[i]s asking leave to change his plea, to present clear and convincing evidence that the
ends of justice would be subserved by permitting him to change his plea to not guilty.”
(People v. Beck (1961) 188 Cal.App.2d 549, 553.) Although we encourage trial courts to
inquire into the basis for a defendant’s motion to withdraw his plea, there is no
affirmative duty of a trial court to inquire into a defendant’s reasons. (Ibid.) “If
defendant had any facts that would have shown or tended to show him to be innocent of
the offenses charged, and he believed that such facts should persuade the trial court to
exercise a favorable discretion toward allowing him to withdraw his pleas of guilty, the
burden was on defendant to present such facts to the court.” (Ibid.)
       Defendant relies on People v. Mortera (1993) 14 Cal.App.4th 861 in an effort to
show a positive duty of the trial court to make further inquiry before ruling on a motion.
In Mortera, the appellate court stated that “the trial court must evaluate whether the
defendant has presented sufficient information to show he entered the guilty plea under a
mistake, an inadvertence or any other factor overreaching his free and clear judgment.
[Citations.] Allowing a defendant to withdraw a guilty plea is within the sound discretion
of the trial court after due consideration of the factors necessary to bring about a just
result.” (Id. at p. 864.)
       Defendant argues that this language means the trial court must give the defendant
an opportunity to explain the grounds to withdraw his pleas, weigh the factors presented
by the defendant, and give those factors due consideration before making its decision.
Defendant’s argument is reasonable, but he takes that argument one step too far when he
argues that “the trial court failed to make sufficient inquiry . . . to make its decision as to

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whether he had just grounds to bring his motion.” Although we agree that the language
of Mortera supports the proposition that the trial court must allow the defendant to put
forth any basis sufficient to show he did not enter into the plea voluntarily, nothing in
Mortera suggests that the trial court has a positive duty to inquire into the grounds for
support of the motion. (See People v. Mortera, supra, 14 Cal.App.4th at p. 864.)
Therefore, defendant’s contention that the trial court failed to make a sufficient inquiry
lacks merit.
       Defendant also argues that the trial court “failed to give defense counsel adequate
time and opportunity to make this inquiry of his client.” There is nothing in the record,
however, that supports this assertion. Nothing in the record indicates the trial court
interrupted defendant or his counsel or prevented either of them from providing a basis
for the motion to withdraw his pleas. Nothing indicates that defendant or his counsel
could not have spoken up at any time and provided a basis for the motion. Without
evidence to suggest this, we cannot find that the trial court abused its discretion in
denying defendant’s motion.
                                              II
               The Record Does Not Support A Finding Of Ineffective Assistance
       Defendant also argues his counsel was ineffective for failing to provide grounds
for the withdrawal of his pleas. When a defendant complains of the ineffectiveness of
counsel’s assistance, he must show that counsel’s representation fell below an objective
standard of reasonableness under prevailing professional norms and, as a result, the
defendant suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688
[80 L.Ed.2d 674, 693].) Reviewing courts defer to counsel’s reasonable tactical decisions
in examining a claim of ineffective assistance of counsel. (People v. Lucas (1995) 12
Cal.4th 415, 436.) “Tactical errors are generally not deemed reversible, and counsel’s
decisionmaking must be evaluated in the context of the available facts.” (People v. Bolin
(1998) 18 Cal.4th 297, 333.) When, as here, defense counsel’s trial tactics or strategic

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reasons for challenged decisions are not readily apparent from the record, we will not
find ineffective assistance of counsel on appeal unless there could have been no
conceivable tactical purpose for counsel’s acts or omissions. (People v. Earp (1999) 20
Cal.4th 826, 896.)
       The record on appeal does not allow us to find ineffective assistance of counsel
because we cannot say defense counsel had no conceivable tactical purpose for his
omissions. (See People v. Earp, supra, 20 Cal.4th at p. 896.) The record provides no
indication of why defense counsel did not state the basis for defendant’s motion to
withdraw his pleas. Moreover, there is a conceivable tactical purpose for defense
counsel’s actions in this circumstance -- defense counsel may have known that defendant
merely changed his mind and, in fact, had no valid grounds to withdraw his pleas. If this
was the case, defense counsel was not required to make a motion to withdraw the pleas.
(See People v. Brown (2009) 175 Cal.App.4th 1469, 1473 [“Counsel is not required to
make legally unsupported motions”].)
       Defense counsel did choose to relay defendant’s request to the court, saying,
“Your honor, Mr. Mead is here for sentencing, but has informed me that he would like to
withdraw his pleas in the three relevant matters.” That defense counsel informed the
court of defendant’s request does not mean, however, that defense counsel then had an
obligation to make meritless arguments in support of that request. An attorney is “not
required to make futile objections, advance meritless arguments or undertake useless
procedural challenges merely to create a record impregnable to assault for claimed
inadequacy of counsel.” (People v. Jones (1979) 96 Cal.App.3d 820, 827.) Furthermore,
as we have indicated already, the fact that defense counsel did not argue grounds for the
motion does not establish inadequacy of counsel because there may not have been
grounds for the motion. (See People v. Waters (1975) 52 Cal.App.3d 323, 330
[“Inadequacy of counsel is not established by counsel’s failure to raise a defense which
has no substantive merit”].)

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                                 DISPOSITION
     The judgment is affirmed.



                                               ROBIE   , Acting P. J.



We concur:



     BUTZ               , J.



     DUARTE             , J.




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