Filed 6/25/14 P. v. Valadez CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063650

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD238722 )

MICHAEL VALADEZ,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Leo

Valentine, Jr., Judge. Affirmed.

         Buckley & Buckley and Christian C. Buckley, by appointment of the Court of

Appeal, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stacy

Tyler, Deputy Attorneys General, for Plaintiff and Respondent.

         Michael Valadez pleaded guilty to a charge of transporting methamphetamine and

admitted an aggravated serious and violent felony strike prior from the State of New
Mexico. In exchange, the district attorney dismissed other charges and allegations and

agreed to a sentence of eight years in state prison.

       Thereafter, Valadez filed a motion to withdraw his plea. The court denied the

motion and imposed the stipulated eight-year prison term.

       Valadez appeals, asserting (1) the court erred in denying his motion to withdraw

his guilty plea because it was not knowing, intelligent and free of overcoming influences;

and (2) this matter must be remanded for an additional evidentiary hearing to receive

expert testimony on the impacts of the various medications he was taking. We affirm.

                               FACTUAL BACKGROUND

       On the afternoon of January 16, 2012, Valadez was parked in a no-parking zone.

The officer who contacted Valadez found a false soda can containing 10 individually

packaged bindles of methamphetamine, as well as 14 tablets of oxycodone, two tablets of

hydrocodone, and one tablet of alprazolam. The quantity and packaging were consistent

with sales.

       Valadez told the officer he had just bought the car and the drugs belonged to the

previous owner, who was "involved in narcotics sales." However, a review of incoming

and outgoing messages on his cell phone referenced orders for pills and

methamphetamine, specifying large quantities. Valadez claimed that he had a

prescription for the pills "somewhere," but could not produce the prescription and refused

to give the officer his address to allow the officer to investigate that claim.




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                                      DISCUSSION

                I. DENIAL OF MOTION TO WITHDRAW GUILTY PLEA

       A. Proceedings Below

       1. Plea Colloquy

       At the plea hearing, the court greeted Valadez, who responded, "Good morning."

as was appropriate for the time of day, 10:28 a.m. The court recited the charge and prior

strike allegation to which Valadez was pleading, the stipulated prison term, and the

People's agreement to dismiss the balance of the charges and allegations. The court then

asked Valadez if he understood, and he answered, "Yes, Your Honor." When the court

asked if he would swear to tell the truth, Valadez replied, "Yes, I do," and spelled his

name for the record.

       The court asked Valadez if any threats or promises had been made to induce him

to plead guilty. He answered, "No, Your Honor." The court asked Valadez if he had had

enough time to review the charges and any defenses with his attorney. He answered,

"Yes, Your Honor." The court asked Valadez if he had any questions. He responded,

"No, Your Honor."

       The court informed Valadez of his various trial rights and asked if he understood

them. Valadez answered, "Yes, Your Honor." The court warned him he was giving up

those rights, except the right to representation, by pleading guilty and asked if he wanted

to do that. Valadez answered, "Yes, Your Honor." The court detailed the various

sentencing consequences of the plea and asked if he understood them. Valadez



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responded, "Yes, Your Honor." The court then asked again, "Any questions about

anything?" Valadez responded, "No, Your Honor."

       The court read the charge as set forth in count four of the information and asked

Valadez how he wanted to plead. He responded, "Guilty, Your Honor." The court read

the allegation of the May 2004 strike prior conviction from New Mexico and asked

Valadez whether it was true. Valadez answered, "Yes, Your Honor." His attorney

concurred in the plea.

       The court found that Valadez understood his rights and was "freely and

voluntar[i]ly" pleading guilty. The court accepted the plea and dismissed all other

charges and allegations as agreed by the parties.

       2. Motion to withdraw guilty plea

       On the date set for sentencing, the court relieved the public defender's office as

Valadez's counsel after he informed the court that he had retained private counsel to file a

motion to withdraw his guilty plea. Thereafter, Valadez filed the motion, asserting that

on the day he pled guilty he was taking an "extremely large quantity of pain

pills . . . [and] antidepressants" and was "so under the influence of these opiates" that he

could not exercise "free will and clear judgment."

       3. The hearing on motion to withdraw guilty plea

       a. Testimony of Valadez's counsel

       Deputy Public Defender Frank Barone, Valadez's appointed attorney at the time of

his guilty plea, testified that he had advised over 500 clients regarding their guilty pleas.

He explained that by virtue of his professional experience, as well as common sense and

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"life experience," he was able to tell "when somebody is lucid and coherent and when

they're not . . . ."

        It was Barone's practice to evaluate the mental condition of each client before

allowing them to sign a change of plea form. As a part of that, he would ensure that the

client had no apparent symptoms of being under the influence of drugs or alcohol.

Whenever he read the plea form to a client, he modified one section to read, "I am sober

and my judgment is not impaired by any drugs, alcohol, or narcotics I may have

consumed in the past 24 hours." If he did perceive that a client was under the influence

of a drug, it was his practice to continue the hearing until the client was able to

meaningfully participate.

        Barone interacted with Valadez in person, by telephone and by videoconference at

least 20 times before he pleaded guilty. On the day Valadez signed the plea form he

seemed "fine" and appeared sober.

        Barone was aware Valadez was taking pain medication. He was not concerned

about that, however, because every time they spoke during his representation of Valadez

there was never a problem with his comprehension of what was going on. He would

never have allowed Valadez to plead guilty had he appeared to be under the influence of

a controlled substance.

        b. Valadez's testimony

        Valadez testified that on the day he signed his guilty plea he was given opiate pain

medications and he told Barone that he was "heavily medicated" and "wasn't sure [he]

wanted to take this deal." He testified that Barone advised him that if he did not sign the

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agreement that day, the offer would expire and he would go to trial and probably would

be sentenced to a prison of 25 years to life. This made him feel "very pressured."

       Valadez claimed he was "out of it" on the day he pleaded guilty. He was unable to

understand the judge's questions. He remembered nothing about the plea colloquy except

that he was "scared and confused." He claimed he answered falsely when he was asked

whether he had any questions and whether he had had enough time to consult with his

attorney.

       Valadez asserted that he called Barone after pleading guilty and told him he "did

not understand what [he] signed." He testified that Barone pointed out that given the

evidence against him, such as the texts on his cell phone and a recording of his

conversation with the police officer, as well as his multiple felony convictions that would

be used against him if he were to testify, he likely would have been convicted and

sentenced to life in prison.

       c. Court's ruling

       The court denied the motion. In doing so, the court noted that Valadez had been

considering pleading guilty since at least May 2012 when he signed the plea form. The

court remembered the plea colloquy well because he had been filling in for another judge

that day. The court stated, "There was no impairment when I talked with Mr. Valadez."

The court found not credible Valadez's claim that he remembered nothing of the plea

colloquy.

       The court also noted that he had been on the bench for 17 years and took seriously

the duty of accepting a change of plea. The court further stated:

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           "[I]f I have any doubt [that the defendant is making an intelligent
           waiver], even over the attorney's objections, they believe their
           clients are making an intelligent waiver, I will shut it down and I
           will indicate for the record that I will not take this plea under the
           circumstances. That was not my sense of Mr. Valadez. Mr. Valadez
           had the presence of mind, communicated directly with the Court,
           made eye contact with the Court, and I took his plea."

       The court found that Valadez was seeking to withdraw his guilty plea because he

had "buyer's remorse," stating "[i]t's not because in the Court's mind that he did not know

what he was doing."

       The court nevertheless offered to review Valadez's medical records "to see if it

changes the Court's opinion." The People objected to the court drawing conclusions

about Valadez's level of awareness based on the medical records without expert

testimony. Valadez requested permission to provide expert testimony at a later hearing.

The court responded by noting that the matter had been continued several times, and that,

to the extent that evidence would have been relevant, Valadez should have and could

have presented it at the hearing. The court also noted that it had been prescribed the same

medications as Valadez and "functioned very well on them." The court stated that it had

"enough before [it] to make a decision that . . . is fair and just . . . ."

       At a subsequent hearing regarding the medical records, the court noted that

Valadez took medication on May 17, 2012 and July 31, 2012, and that on both days he

had been given one dose of Percocet at about 5:00 a.m., which was five hours prior to the

change-of-plea colloquy. The court found "nothing in the record to support that Mr.

Valadez was [in] such a state of mind that he could not and did not understand the nature

of the proceedings . . . ." The court reiterated that it presided over the change of plea and

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that it "specifically" recalled the circumstances of that hearing and it found no legal basis

to permit withdrawal of the guilty plea. The court remarked that Valadez had "probably

done the best [he could] under the circumstances" given he was facing a life sentence, but

negotiated eight years instead.

       B. Analysis

       Courts may permit withdrawal of a guilty plea upon a showing of good cause.

(Pen. Code, § 1018.) Good cause is shown where the plea was entered as a result of

mistake, ignorance, inadvertence, or overreaching. (People v. Urfer (1979) 94

Cal.App.3d 887, 892.) In People v. McCrory (1871) 41 Cal. 458, 462, the California

Supreme Court stated "when there is reason to believe that the plea has been entered

through inadvertence, and without due deliberation . . . the Court should be indulgent in

permitting the plea to be withdrawn." However, the Supreme Court also noted, 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" (ibid.) and concluded that the decision

to allow withdrawal of a guilty plea rests in the sound discretion of the trial court and will

not be disturbed on appeal absent an abuse of discretion is clearly demonstrated. (Ibid.)

We are required to accept all factual findings of the trial court that are supported by

substantial evidence. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)

       Here, Valadez cannot demonstrate the court abused its discretion in denying his

request to withdraw his guilty plea. The record shows that he gave clear and appropriate

answers to the court's questions at the guilty plea hearing. His attorney testified that

Valadez understood what was going on and did not appear impaired. The court, who

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observed Valadez during the proceeding, also perceived no impairment during the plea

colloquy.

         The plea agreement itself supports the fact that Valadez knew what he was doing.

Based on the charges and the three prior strike allegations, he faced multiple 25-year-to-

life terms. In exchange for the plea agreement, his prison term was reduced to eight

years.

         The only evidence in support of his motion to withdraw his plea agreement was

his own self-serving testimony. That evidence was insufficient to warrant a withdrawal

of his plea agreement. (People v. Cruz (1974) 12 Cal.3d 562, 566-567 [fact defendant

alleged he was confused insufficient to warrant withdrawal of plea].)

         In sum, the court did not abuse its discretion in denying Valadez's motion to

withdraw his guilty plea.

         Valadez asserts that this matter should be remanded for a further evidentiary

hearing so he can provide expert testimony concerning the effects of the drugs he claims

he was taking at the time he pleaded guilty. This contention is unavailing.

         The hearing was continued several times from October 2012 to February 2013. If

counsel believed expert testimony was necessary, there was ample time to obtain it. It

was only after the court indicated that it was inclined to deny the motion that the request

to present expert testimony was made. The court properly denied the request as both

untimely and unnecessary.




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      Moreover, as we have discussed, ante, the evidence demonstrates that Valadez

was not too confused to know what was going on at the change-of-plea hearing. During

the plea colloquy, he was clear, lucid, and engaged.

                                     DISPOSITION

      The judgment is affirmed.


                                                                           NARES, J.

WE CONCUR:


McCONNELL, P. J.


HALLER, J.




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