Filed 7/30/15 P. v. Patterson CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039022
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. F1139615)

             v.

LLOYD TARIAL PATTERSON,

         Defendant and Appellant.



         Defendant Lloyd Tarial Patterson appeals from a grand theft conviction. On
appeal, defendant asserts that the trial court erred in denying his motion to withdraw his
no contest plea. As set forth below, we will affirm.
                                            FACTUAL BACKGROUND
         James Currier, the victim of the theft, owns a company called Flowstar. Flowstar
has a Gilroy warehouse. Currier and defendant worked together to start a homeless
shelter called the Gilroy Compassion Center (hereafter the “GCC”). The GCC is adjacent
to the Flowstar warehouse.
         On August 23, 2011, Currier informed the Gilroy Police Department that
numerous metal items had been stolen from the Flowstar warehouse. Among the stolen
items were 85 metal filters that weighed a total of approximately 3,000 pounds. The total
value of the stolen items was $122,047.30. Currier learned that defendant had taken the
items and recycled them for money. A man named Darren Baker helped defendant
transport the items to a recycling center.
       Approximately three months before the theft, Currier gave defendant permission
to remove old electrical wiring from the Flowstar warehouse. Currier did not give
defendant permission to remove anything else from the warehouse.
       At the time of the theft, defendant did not have permission to be in the Flowstar
warehouse. According to Jan Bernstein-Chargin, the board chair of the GCC, Currier
told everyone present at a GCC meeting that they could not go into the Flowstar
warehouse.
                               PROCEDURAL BACKGROUND
       On August 24, 2011, the Santa Clara County District Attorney filed a felony
complaint charging defendant with grand theft (Pen. Code, §§ 484/487, subd. (a)).1 The
complaint alleged that the value of the taken property exceeded $65,000 (§ 12022.6,
subd. (a)(1)). The complaint additionally alleged that defendant had one prior strike
conviction (§§ 667, subds. (b)-(i)/1170.12) and had served four prior prison terms
(§ 667.5, subd. (b)).
       At a hearing on September 27, 2011, the trial court granted defendant’s Faretta2
motion for self-representation and relieved defendant’s appointed counsel. At that same
hearing, the prosecutor stated her intention to file an amended complaint that alleged a
second prior strike conviction. Defendant stated that he wanted to “plead as charged”
when the prosecutor filed the amended complaint. He said that he wanted to plead guilty
to grand theft and “admit both strike priors and admit four prison priors, admit . . . over
sixty thousand dollars enhancement.” Defendant explained that his “legal strategy” was

       1
           Subsequent unspecified statutory references are to the Penal Code.
       2
           Faretta v. California (1975) 422 U.S. 806.


                                              2
to enter a guilty plea at the “earliest possible” time and then “move on to” a Romero3
motion to vacate his prior strike convictions. Defendant emphasized: “It is my intentions
[sic] to knowingly, clearly, intelligently, and willingly change my plea to guilty.” After
questioning from the trial court, defendant affirmed that his strategy of a guilty plea and a
Romero motion was “the best thing” for him to do.
       On October 7, 2011, the Santa Clara County District Attorney filed an amended
felony complaint. In addition to the grand theft charge and all the allegations in the
original complaint, the amended complaint alleged a second prior strike conviction
(§§ 667, subds. (b)-(i)/1170.12).
       At a hearing on October 28, 2011, defendant and the prosecutor informed the trial
court that they had reached a plea agreement. Pursuant to the agreement, defendant
pleaded no contest to grand theft (§ 487, subd. (a)), and he admitted that he had two prior
strike convictions (§§ 667, subds. (b)-(i)/1170.12) and had served four prior prison terms
(§ 667.5, subd. (b)). In exchange for defendant’s plea, the prosecutor dismissed the
allegation that the value of the taken property exceeded $65,000. When defendant
entered his plea, he said that he “never had the intention of . . . contesting” the grand theft
charge. He emphasized that he had made his “desire known early on” that he “wanted to
resolve the grand-theft matter as soon as possible.” He explained that he made it “clear
from the beginning” that the “best resolution” was to enter a no contest plea and proceed
with a Romero motion. The trial court noted that defendant had “always said” that he
wanted to plead guilty, and that defendant “indicated he wanted to plead guilty” as early
as the arraignment on the original complaint.
       On January 18, 2012, defendant filed a motion to withdraw his plea pursuant to
section 1018. He filed a supplemental motion to withdraw his plea on June 5, 2012. The



       3
           People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
                                              3
trial court held a series of evidentiary hearings on the plea withdrawal motion. On
September 21, 2012, the trial court denied defendant’s motion to withdraw his plea. The
trial court explained that defendant had failed to establish good cause for withdrawal of
his no contest plea. The trial court emphasized that, before defendant entered his plea, he
always said his strategy was to plead guilty or no contest and focus on a Romero motion
to vacate his prior strike convictions.
       At the hearing on September 21, 2012, the trial court granted the prosecutor’s
motion to dismiss one of the prior strike allegations that defendant had previously
admitted. On October 26, 2012, the trial court denied defendant’s Romero motion, and it
sentenced defendant to a prison term of five years eight months.
                                          DISCUSSION
Defendant’s Arguments
       Defendant contends that the judgment must be reversed because the trial court
abused its discretion in denying his plea withdrawal motion. On appeal, defendant
renews three arguments that he raised in the trial court.
       First, defendant asserts that he was entitled to withdraw his plea because, when he
was represented by counsel, that attorney failed to advise him of two items of evidence
and consequently misled him about the state of the evidence. Second, defendant
contends that he was entitled to withdraw his plea because he was not aware of Currier’s
criminal convictions and Baker’s criminal convictions at the time he entered his plea.
Third, defendant argues that he was entitled to withdraw his plea because two pieces of
newly discovered evidence “cast the case in a dramatically different light.”
       As explained below, defendant’s arguments are not persuasive. Contrary to
defendant’s assertions, the trial court did not abuse its discretion in denying the plea
withdrawal motion.



                                              4
Standard of Review
       “The decision whether to allow a defendant to withdraw a guilty or no contest plea
is discretionary, and an appellate court will not disturb it absent a showing the trial court
has abused its discretion.” (People v. Mickens (1995) 38 Cal.App.4th 1557, 1561.)
Legal Principles
       “A trial court may allow a defendant to withdraw his or her guilty or no contest
plea under section 1018 for good cause shown by clear and convincing evidence.”
(People v. Archer (2015) 230 Cal.App.4th 693, 702.) “To establish good cause to
withdraw a guilty plea, the defendant must show by clear and convincing evidence 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.” (People v.
Breslin (2012) 205 Cal.App.4th 1409, 1416 (Breslin).) “The defendant must also show
prejudice in that he or she would not have accepted the plea bargain had it not been for
the mistake.” (Ibid.)
       “All decisions to plead guilty are heavily influenced by difficult questions as to the
strength of the prosecution’s case and the likelihood of securing leniency.” (Breslin,
supra, 205 Cal.App.4th at p. 1417.) “Considerations like these frequently present
imponderable questions for which there are no certain answers; judgments may be made
that in the light of later events seem improvident, although they were perfectly sensible at
the time.” (Brady v. United States (1970) 397 U.S. 742, 756-757 (Brady); see also
Breslin, supra, 205 Cal.App.4th at p. 1417.) “A defendant is not entitled to withdraw his
plea merely because he discovers long after the plea has been accepted that his calculus
misapprehended the quality of the State’s case or the likely penalties attached to
alternative courses of action.” (Brady, supra, 397 U.S. at p. 757; see also Breslin, supra,
205 Cal.App.4th at p. 1417.)



                                              5
The Trial Court Did Not Abuse its Discretion
         We now turn to defendant’s arguments. Defendant has failed to show the trial
court abused its discretion in concluding that good cause for plea withdrawal did not
exist.
         Defendant’s first argument is not persuasive. Defendant contends that he had
good cause to withdraw his no contest plea because, before he was granted self-
representation, his appointed counsel failed to advise him of the following pieces of
evidence: 1) Currier admitted he had “relapsed” into substance abuse in June of 2011;
and 2) Bernstein-Chargin stated that defendant missed many GCC meetings.4 This
argument is meritless. Defendant concedes that he was aware of Currier’s relapse into
substance abuse, and defendant was certainly aware of his frequency of attendance at
GCC meetings. Defendant has thus failed to show that he was operating under mistake or
ignorance at the time he entered his no contest plea. Given that defendant was aware of
Currier’s substance abuse and his own attendance at GCC meetings, defendant’s assertion
that he was “misled about the evidence” is unconvincing.5


         4
         Defendant contends that Currier’s statement was important because it could
have been used to impeach Currier at trial. Defendant contends that Bernstein-Chargin’s
statement suggested that he was not present when Currier prohibited GCC members from
going into the Flowstar warehouse, which in turn suggested that he was unaware that he
did not have permission to take items from the Flowstar warehouse.
         5
          In a brief one-paragraph argument, defendant asserts that counsel rendered
ineffective assistance in failing to advise him of Currier’s statement and Bernstein-
Chargin’s statement. “We discuss only those arguments that are sufficiently developed to
be cognizable.” (Page v. Superior Court (1995) 31 Cal.App.4th 1206, 1214, fn. 5.)
Thus, given the brevity of defendant’s ineffective assistance argument, we are not
obligated to discuss it. Nonetheless, we note that defendant cannot prevail on his claim
of ineffective assistance of counsel. To establish ineffective assistance, defendant “must
show that there is a reasonable probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.” (Hill v. Lockhart (1985)
474 U.S. 52, 59, fn. omitted.) Given that defendant was aware of Currier’s substance
                                             6
       Defendant’s second argument is also meritless. The circumstance that defendant
was unaware that two potential prosecution witnesses, Currier and Baker, had criminal
convictions did not constitute good cause for withdrawal of his plea. Prosecutors are not
required to disclose impeachment evidence prior to entering a plea agreement with a
criminal defendant. (U.S. v. Ruiz (2002) 536 U.S. 622, 633 (Ruiz); In re Miranda (2008)
43 Cal.4th 541, 581.) This is so because “impeachment information is special in relation
to the fairness of a trial, not in respect to whether a plea is voluntary.” (Ruiz, supra, 536
U.S. at p. 628, italics omitted.) The criminal convictions of Currier and Baker were
relevant only for impeachment purposes, and those convictions thus had no bearing on
whether defendant was exercising his free judgment at the time he entered his plea.
Defendant’s ignorance of the convictions therefore did not constitute good cause for
withdrawal of his no contest plea.
       Defendant’s third argument is also unconvincing. Contrary to defendant’s
assertion, two pieces of newly discovered evidence did not constitute good cause for
withdrawal of his plea.
       The first piece of “newly discovered” evidence that defendant proffers is
Bernstein-Chargin’s statement that she was a party to a conversation in which Currier
told defendant that defendant could take items from the Flowstar warehouse. Given that
defendant was present at the conversation that Bernstein-Chargin described, he was
surely aware of Bernstein-Chargin’s potential testimony, and her statement cannot be
considered newly discovered evidence warranting withdrawal of the no contest plea.



abuse and his own attendance at GCC meetings, we cannot conclude that defendant
would have proceeded to trial if counsel had advised him of Currier’s statement and
Bernstein-Chargin’s statement. Defendant’s repeated statements regarding his desire to
enter a no contest plea provide further support for our conclusion that defendant would
not have insisted on a trial if counsel had advised him of Currier’s statement and
Bernstein-Chargin’s statement.
                                              7
       The second piece of newly discovered evidence that defendant proffers is Baker’s
statement to police that defendant had “full run” of the Flowstar warehouse and was
working “arm-in-arm” with Currier. Defendant contends that this new evidence was
crucial because it contradicted a police report that noted that Baker said defendant had
permission to remove only old wiring from the Flowstar warehouse. We are not
convinced of the significance of the newly discovered statement of Baker. Baker’s
assertion that defendant was working “arm-in-arm” with Currier did not demonstrate that
defendant had permission to take items from the Flowstar warehouse. Baker’s assertion
that defendant had “full run” of the Flowstar warehouse was ambiguous. Although the
phrase “full run” suggested that defendant had extensive access to the Flowstar
warehouse, the phrase in no way established that defendant had permission to take items
valued at over $100,000. Thus, we are not persuaded by defendant’s contention that the
newly discovered statement of Baker “cast the case in a dramatically different light,” and
we cannot conclude that defendant’s ignorance of Baker’s statement constituted good
cause for withdrawal of his plea. (See Breslin, supra, 205 Cal.App.4th at p. 1417
[although the prosecution’s case might have been slightly weaker than it appeared when
the defendant pleaded guilty, this does not invalidate the plea].)
       Finally, defendant briefly asserts that the “cumulative impact” of all the factors
described in his three arguments constituted good cause for withdrawal of his plea. As
explained above, defendant failed to show that he was operating under any mistakes that
overcame the exercise of his free judgment in entering his plea. Moreover, defendant
ignores the fact that, to prevail on his plea withdrawal motion, he had to show that he
“would not have accepted the plea bargain had it not been for the mistake.” (Breslin,
supra, 205 Cal.App.4th at p. 1416.) Such a showing is not possible here. The record
shows that defendant had a very strong desire to enter his no contest plea. He frequently
and consistently informed the trial court that he wanted to enter a guilty or no co contest

                                              8
plea. He repeatedly asserted that the best legal strategy was to enter a no contest plea “as
soon as possible” and to focus on a Romero motion to vacate his prior strike convictions.
Given defendant’s adamancy about entering a no contest plea, we do not believe he
would have proceeded to trial if he had been cognizant of all the factors he describes in
his arguments. We therefore cannot find an abuse of discretion in the denial of
defendant’s plea withdrawal motion. (See generally People v. Nance (1991) 1
Cal.App.4th 1453, 1456 [a plea “may not be withdrawn simply because the defendant has
changed his mind”].)
       In summary, for the foregoing reasons, we conclude that the trial court acted
within its discretion in ruling that good cause for plea withdrawal did not exist.
Defendant has failed to show an abuse of discretion in the denial of his plea withdrawal
motion.
                                       DISPOSITION
       The judgment is affirmed.




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                                        ______________________________________
                                                   RUSHING, P. J.




WE CONCUR:




____________________________________
           ELIA, J.




____________________________________
           WALSH, J.*




People v. Patterson
H039022

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