Filed 10/5/15 P. v. Lightle 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                       (Siskiyou)
                                                            ----




THE PEOPLE,                                                                                  C077831

                   Plaintiff and Respondent,                                          (Super. Ct. Nos.
                                                                                     MCYKCRF14-0012,
         v.                                                                          MCYKCRF14-0471)

JOHN JACOB LIGHTLE,

                   Defendant and Appellant.




         Defendant John Jacob Lightle appeals from the trial court’s order denying his
motion to withdraw his guilty plea (Pen. Code, § 1018),1 as well as from the judgments
after sentencing conducted that same day. Defendant entered guilty pleas in two separate
cases, an assault case and a drug possession case. On appeal, defendant first contends the
trial court abused its discretion in denying his motion to withdraw his plea in the assault




1   Further undesignated statutory references are to the Penal Code.

                                                             1
case in light of what he describes as his good cause to do so. Defendant next contends
the provisions of Proposition 47, the Safe Neighborhoods and Schools Act, apply
retroactively to reduce his conviction for drug possession to a misdemeanor. Disagreeing
with both contentions, we shall affirm.
                                     BACKGROUND
       Case No. MCYKCRF 14-0012 (The Drug Possession Case)
       On December 30, 2013, Yreka police arrested defendant on a warrant while he
was loitering outside a Walmart. He was searched and found to possess 10 small plastic
bindles of methamphetamine. He was charged with possession of methamphetamine
(Health & Saf. Code, § 11377, subd. (a); count 1) and felony failure to appear (§ 1320.5;
count 2), as well as a prior prison term (§ 667.5, subd. (b)).
       Case No. MCYKCRF 14-0471 (The Assault Case)
       Siskiyou County Sheriff’s Deputy Nowdesha was on duty at department
headquarters in Yreka on September 7, 2013. He heard a car pull into the parking lot.
Nowdesha went outside and saw (witness) Charles McLeran get out of the car on the
driver’s side. He saw another man, later identified as (victim) Malcolm Strickland,
seated and bleeding in the passenger seat. Strickland told Nowdesha that he had been
jumped by two men and stabbed by one. Nowdesha saw multiple stab wounds on
Strickland’s arm and back.
       Yreka Police Department Officers Fahrney and Duncan arrived at the scene, and
then waited with Strickland for emergency medical personnel to arrive. While they were
waiting, Strickland told Nowdesha and Fahrney that he had gone to see an acquaintance
at a trailer in Yreka. As Strickland was approaching the trailer, two men attacked him.
Strickland recognized defendant, who he knew, as one of his assailants. According to
Strickland, defendant pulled out a knife and stabbed him. Emergency medical personnel
arrived and transported Strickland to the hospital.



                                              2
       Nowdesha and Fahrney then spoke with McLeran, who said he witnessed the
attack from his car, which was parked approximately 20 to 30 yards away. As Strickland
approached the gate to the trailer, two white men emerged from a nearby shed and
attacked him. McLeran recognized defendant (who he knew from previous encounters)
by his red hair, and identified him as one of Strickland’s assailants. McLeran saw
defendant punch and kick Strickland. He also saw defendant stab Strickland at least
twice. During the attack, McLeran heard defendant and the other assailant say they were
going to “finish it off,” leading McLeran to believe they intended to kill Strickland.
       McLeran explained that defendant was angry with Strickland because he had been
romantically involved with defendant’s ex-girlfriend, Tatiana Morrison. McLeran told
Nowdesha he was concerned for Strickland’s safety, as defendant had previously
threatened to stab Strickland, and “could come back and finish the job.”
       Nowdesha interviewed Strickland again at the hospital. Strickland was initially
unwilling to name his assailants because he did not want to be viewed as a “ ‘snitch.’ ”
However, he acknowledged that he recognized defendant as Morrison’s ex-boyfriend.
He explained that he was looking down at his cell phone as he walked towards the gate to
the trailer. He looked up and saw defendant approaching; defendant then hit him.
Strickland then saw the other man, and both defendant and the other man knocked
Strickland to the ground. One of the men produced a knife and stabbed him multiple
times. After the stabbing, Strickland lay on the ground and the two men left. McLeran
then came and helped Strickland into his car and drove him to get help.
       Strickland was released from the hospital and appeared at the sheriff’s office
several days later. He was holding a copy of the local newspaper and asked to speak with
Nowdesha. In the paper were photographs of two white men, one of whom was
identified as defendant. Strickland explained that “the guys on the front page were not
the suspects who assaulted him.” Strickland also said that he did not want to press



                                             3
charges against his assailants. Strickland denied having been intimidated into changing
his story.
       On April 21, 2014, defendant was charged by information with assault with a
deadly weapon (§ 245, subd. (a)(1); count 1), assault by means of force likely to produce
great bodily injury (§ 245, subd. (a)(4); count 2), carrying a dirk or dagger concealed on
his person (§ 21310; count 3), being a felon in possession of ammunition (§ 30305, subd.
(a)(1); counts 4 and 5), possession of a firearm by a felon (§ 29800, subd. (a)(1); count
6), carrying a loaded firearm (§ 25850, subd. (c)(1); count 7), possession of a firearm
with an altered serial number (§ 23920; count 8), possession of narcotics paraphernalia
(Health & Saf. Code, § 11364.1; counts 9 and 10), and possession of less than 28.5 grams
of marijuana (Health & Saf. Code, § 11357, subd. (b); count 11). With respect to count
2, the information alleged that defendant personally inflicted great bodily injury.
(§ 12022.7, subd. (a).) The information further alleged that defendant had served a prior
prison term. (§ 667.5, subd. (b).)
       Preliminary Hearing
       The trial court conducted a preliminary hearing in the assault case on April 17,
2014. During the preliminary hearing, Nowdesha testified that Strickland identified
defendant as one of his assailants, and the person who stabbed him, upon arriving at
sheriff’s department headquarters on September 7, 2013. Nowdesha also testified that
McLeran had also identified defendant as one of Strickland’s assailants, and the person
who stabbed him.
       Nowdesha acknowledged that Strickland subsequently recanted his identification
of defendant as one of the two men who attacked him. Nowdesha testified that he re-
interviewed McLeran upon learning that Strickland had recanted. According to
Nowdesha, McLeran again insisted that defendant was the man who stabbed Strickland.
       Following Nowdesha’s testimony, defense counsel argued, “Mr. Strickland gave a
statement at the scene, but then came in after the incident showing photographs of who

                                             4
the sheriff’s department believed was responsible for this incident and came in and said
these were not the guys. [¶] So when we finally get together an actual photograph of
who these two parties believe did this incident, the complaining witness at the scene
points out and says, ‘No, you have got it wrong. This is not who stabbed me. This isn’t
who did it.’ Prior to that we are just speaking in vague terms about who may have been
there and who was doing what. But when the photograph was shown of who the sheriff’s
office believes is performing this action, the alleged victim comes in and says, ‘No, that
wasn’t the person.’ ” The trial court held defendant to answer on all charges.
       Pleas and Probation Report
       On April 29, 2014, pursuant to a negotiated plea agreement, defendant pleaded
guilty to counts 1 and 2 (possession of methamphetamine and failure to appear) in the
drug possession case and counts 1, 3, 6, and 9 (assault with a deadly weapon, carrying a
concealed dirk or dagger, possession of a firearm by a felon, and possession of narcotics
paraphernalia) in the assault case. In exchange for his pleas and admission, defendant
was promised a sentence of five years four months in prison and dismissal of any
remaining counts as well as an unrelated case.
       During the plea colloquy, the following exchange took place:
       “THE COURT: Mr. Lightle, is there anything at all going on this morning
about your cases that is causing you any confusion at this point?
       “[DEFENDANT]: No.
       “THE COURT: Okay. Now, you are hesitating, Mr. Lightle. I need to
make sure that you are doing this as a matter of your own free will. And I can
understand that this is a difficult situation for you. I understand that you are
entering pleas that are going to be part of an intent, or agreed upon course of
action, that is going to result in a five-year formal CDCR term. And I realize that
process is not pleasant to you. I can assume that that’s part of what I’m reading
here. Are you nonetheless doing this voluntarily?

                                              5
        “[DEFENDANT]: Yes.
        “THE COURT: Okay. And this is the way that you want to proceed in this
– these cases?
        “[DEFENDANT]: No. I want to take the assault with the deadly weapon
[charge] to jury trial.
        “THE COURT: Okay. So you are changing your mind?
        “[DEFENDANT]: Yes.
        “THE COURT: Okay. Go ahead and have a -- let’s trail the matter. [¶]
And you have another discussion with your client, [defense counsel], and we’ll
recall the matter before lunch, and with your coming back –
        “[DEFENDANT]: Or, no -- I’ll take the -- guilty -- eleven years --
potential eleven years, eight months, is better than -- five years eight months with
half is better than -- you know what I mean -- eleven years, eight months.
        “THE COURT: I understand -- I understand that’s why you may be taking
this deal, Mr. Lightle. And, yet, I want the record to reflect that I’m watching Mr.
Lightle as we conduct this inquiry. He is obviously listening very, very carefully.
And he is obviously thinking carefully about what’s being communicated to him
and he is thinking about the responses. And, obviously, as is indicated on the
record, he is having some difficulty dealing with the choices he has before him
here in the presence of the Court. In the last 45 or 50 seconds he has changed his
mind.
        “The Court understands how these can be difficult decisions; but, Mr.
Lightle, I have to make sure in my own mind that this is what you want to do.
And you have changed your mind in my presence. I understand that. I suspect
that that could be the case. What I’m going to do is, I’m going to ask you to go
back in, we are going to trail the matter, and we are going to come back out here
before lunch.”

                                             6
        The trial court recalled defendant’s case a short time later. The following colloquy
took place:
        “THE COURT: Mr. Lightle, did you have some more time to think this
over?
        “[DEFENDANT]: Yes.
        “THE COURT: Did you find that helpful?
        “[DEFENDANT]: Yes.
        “THE COURT: Okay. Are you confident in what you want to do today?
        “[DEFENDANT]: Yes.
        “THE COURT: And what is that?
        “[DEFENDANT]: Take the guilty plea, five years, four months, with half
time.
        “THE COURT: Very well. I am seeing a different expression on your face
now. You appear to be confident that this is what you choose to do this morning.
        “[DEFENDANT]: Yes, sir.
        “THE COURT: Okay.
        “[DEFENDANT]: The reason for it, your Honor, I’ll be leaving my
significant other out there in the world, I’m homeless with nothing. It’s just really
hard because we were struggling before I got arrested and knowing that I’m
leaving her out there with nothing, it’s just really hard.
        “THE COURT: Very well, I -- I certainly understand and respect that, Mr.
Lightle. So your comments are certainly noted.
        “[DEFENDANT]: Thank you.
        “THE COURT: Okay. Is there anything else you want to discuss with the
Court before you proceed, Mr. Lightle?
        “[DEFENDANT]: No.



                                               7
       The trial court heard and accepted defendant’s pleas, finding that they were made
“willingly . . . with a full understanding of the nature of the charges and allegations, as
well as a full understanding of the consequences of the pleas and admissions, as those
have been explained to him on the record and in the plea form, which is before the
Court.” The trial court also found a factual basis based on the parties’ stipulations as well
as the preliminary hearing transcript and police reports.
       Defendant’s sentencing was scheduled for September 25, 2014. The probation
report indicated that: “[Strickland] stated he did not know who assaulted him but they
were not the ones in the newspaper article because they were ‘white guys.’ He said the
people who assaulted him were ‘black guys.’ ”
       Motion to Withdraw Plea and Sentencing
       Defendant filed a motion to withdraw his guilty pleas on September 24, 2014, the
day before the sentencing hearing. The motion was accompanied by a declaration from
defendant’s newly appointed trial counsel, Leslie Salem. Salem averred in pertinent part:
“On May 13, 2014, I was appointed . . . to advise the defendant about moving to
withdraw his pleas. [¶] Former counsel informed me that he had received a voice-mail
message from the jail from the alleged victim, Malcolm Strickland, stating that the
defendant was not the person who stabbed him. Mr. Strickland also told the probation
officer that defendant was not the person who stabbed him. . . . I subpoenaed Mr.
Strickland to testify at the sentencing hearing so that he could be put under oath after
learning that no victim statement had been obtained from him. [¶] On August 19, 2014,
Mr. Strickland was not permitted to testify. The District Attorney’s Office represented to
the court that the victim had told an employee of the victim witness office that he had
nothing he wanted [to] say to the court. [¶] Yesterday, I spoke with Mr. Strickland. He
said that he told the victim witness advocate that he wanted to tell the court that ‘they had
the wrong guy.’ He told me he is unwilling to sign a declaration to that effect without the
advice of counsel.”

                                              8
       The motion was also accompanied by a declaration by defendant. Defendant’s
declaration stated in pertinent part: “The prosecutor in this case, Ms. Martha Aker, is
prejudiced against me. She knew me when I was in high school and dislikes me because
she caught me with her stepson doing drugs in her backyard.”
       The trial court denied the motion, finding in pertinent part that defendant’s
awareness of the victim’s recantation preceded his change of plea.
       The trial court then sentenced defendant in accordance with the plea agreement to
an aggregate state prison term of five years four months. Defendant filed a timely notice
of appeal which references both cases.
                                      DISCUSSION
                                            I
                        Defendant’s Motion to Withdraw His Pleas
       Defendant first contends the trial court abused its discretion by denying his motion
to withdraw his pleas. We disagree.
       Section 1018 permits a defendant to move to withdraw his plea for good cause at
any time before judgment is entered. (§ 1018.)2 To establish good cause, a defendant
must show by clear and convincing evidence that his plea was the result of mistake,
ignorance, or any other factor overcoming the exercise of free judgment. (People v. Cruz
(1974) 12 Cal.3d 562, 566.) However, a defendant must establish that his free will was
overcome, not merely that he had a change of heart. (People v. Nance (1991)
1 Cal.App.4th 1453, 1456.)
       A trial court’s decision to grant or deny a defendant’s motion to withdraw his plea
is reviewed for abuse of discretion. (People v. Mickens (1995) 38 Cal.App.4th 1557,



2 Section 1018 provides in pertinent part: “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. . . . This section shall be liberally
construed to effect these objects and to promote justice.”

                                              9
1561.) In determining whether a defendant has shown good cause for granting a motion
to withdraw his plea, the reviewing court must adopt the trial court’s factual findings if
they are supported by substantial evidence. (People v. Fairbank (1997) 16 Cal.4th 1223,
1254.)
         Defendant contends Strickland’s recantation establishes the requisite good cause
to withdraw his guilty pleas. He relies on a number of intermediate federal appellate
cases, including United States v. Groll (7th Cir. 1993) 992 F.2d 755 (Groll) and United
States v. Jones (D.C. Cir. 2011) 642 F.3d 1151 for the proposition that a viable claim of
innocence constitutes good cause for a motion to withdraw a plea.
         Preliminarily, we observe that intermediate federal appellate decisions, while they
may be of persuasive value, are not binding on state courts. (Alameida v. State Personnel
Bd. (2004) 120 Cal.App.4th 46, 61.) That said, California courts have recognized that
“the withdrawal of a plea of guilty should not be denied in any case where it is in the
least evident that the ends of justice would be subserved by permitting the defendant to
plead not guilty instead; and it has been held that the least surprise or influence causing a
defendant to plead guilty when he has any defense at all should be sufficient cause to
permit a change of plea from guilty to not guilty.” (People v. McGarvy (1943)
61 Cal.App.2d 557, 564; accord People v. Ramirez (2006) 141 Cal.App.4th 1501, 1507
(Ramirez).) Applying this principle, some courts have held that clear and convincing
newly discovered evidence of factual innocence can constitute good cause for
withdrawing a guilty plea. (Ramirez, supra, at pp. 1506-1507; accord People v. Singh
(1957) 156 Cal.App.2d 363, 366 [trial court did not abuse its discretion in denying
motion to withdraw plea based on newly discovered evidence negating element of crime
because defendant offered no affidavits and failed to establish grounds for motion by
clear and convincing evidence]; see also § 1018 [this “section shall be liberally construed
. . . to promote justice”].)



                                              10
         For example, in Ramirez, defense counsel discovered a previously undisclosed
supplemental police report after the defendant had pleaded no contest to armed robbery
and evading arrest in exchange for the dismissal of carjacking and unlawful driving
charges. (Ramirez, supra, 141 Cal.App.4th at pp. 1503-1504.) The report contained
witness statements indicating the defendant was not present during the carjacking and had
been an unwilling passenger during a later police chase. (Id. at pp. 1504-1505.) Noting
the “state’s suppression of favorable evidence is an extrinsic cause which may overcome
the exercise of free judgment,” the Ramirez court held the defendant established good
cause to withdraw his plea because the prosecution had ample time prior to the plea to
turn over the report. (Id. at pp. 1506-1507.) For purposes of analysis, we assume without
deciding that clear and convincing newly discovered evidence of factual innocence
constitutes good cause for granting a motion to withdraw a guilty plea under section
1018.3 We next consider whether defendant presented any such evidence to the trial
court.
         As the trial court observed, defendant’s trial counsel was aware of Strickland’s
recantation at the time of the preliminary hearing, before defendant entered his pleas.
(RT 77-78) Although Strickland subsequently elaborated upon his recantation, claiming
his attackers were “black guys,” the basic outline of his story--that defendant was not the
person who stabbed him--remained the same. Thus, unlike the defendant in Ramirez,
defendant was aware of the potentially exculpatory evidence at the time he entered his
plea. We agree that this evidence was not newly discovered by any measure, and hold
that the trial court did not abuse its discretion in so finding.
         Because we hold the evidence of Strickland’s recantation was not newly
discovered, we need not analyze at length his claim that the recantation establishes a



3 We note, however, that newly discovered evidence is not listed as an instance of “good
cause” for a motion to withdraw a plea pursuant to section 1018.

                                               11
viable claim of factual innocence, and therefore constitutes good cause for withdrawing
his plea. Suffice it to say that, given the conflicting statements by Strickland and the
sequence of events reflected by the record and described in detail ante, the trial court
could reasonably conclude that defendant failed to present clear and convincing evidence
of factual innocence.
       Our role in determining whether defendant satisfied his burden of producing clear
and convincing evidence in the trial court is a limited one, because “ ‘[a]ll questions of
the weight and sufficiency of the evidence are addressed, in the first instance, to the trier
of fact, in this case, the trial judge. We cannot reverse his order if there is substantial
evidence or a reasonable inference to be drawn from it which supports the order. Where
two conflicting inferences may be drawn from the evidence it is our duty to adopt the one
supporting the challenged order.’ ” (People v. Harvey (1984) 151 Cal.App.3d 660, 667.)
Here, Strickland’s recantation was not only inconsistent with his original account of the
stabbing, it was also inconsistent with McLeran’s. Strickland’s recantation was also
somewhat implausible, considering that Strickland went from identifying a specific
person, who was known to him, to unidentified “black guys.” On this record, the trial
court could reasonably credit Strickland’s original identification, and discredit his
subsequent recantation, particularly in light of Strickland’s reluctance to name his
attackers and possible fear of retaliation, as well as his refusal to explain his position in
court or complete a declaration.
       Relying on Groll, defendant contends the trial court should have conducted an
evidentiary hearing into Strickland’s recantation. Like Jones, Groll addresses the Federal
Rules of Criminal Procedure, and is therefore inapplicable. Furthermore, Groll suggests
that an evidentiary hearing is not required where, as here, “the record indicates that the
defendant was aware of the reasons supporting her motion to withdraw when she entered
her plea.” (Groll, supra, 992 F.2d at p. 758.) We therefore reject defendant’s contention.



                                              12
       Finally, defendant emphasizes that he entered his pleas “reluctantly.” However, a
defendant’s reluctance or uncertainty about whether to plead does not make the plea
involuntary and is not sufficient to show good cause to withdraw the plea. (People v.
Huricks (1995) 32 Cal.App.4th 1201, 1209; see People v. Hunt (1985) 174 Cal.App.3d
95, 104 [motion to withdraw plea properly denied where plea was “against [the
defendant’s] better judgment”].) Here, the trial court carefully observed defendant’s
demeanor, noting defendant’s hesitation, and repeatedly asked whether defendant was
sure about his decision to plead guilty. When defendant said that he wanted to change his
plea, the court gave him additional time to confer with his counsel. When the court
recalled his cases, defendant confidently affirmed that he wanted to plead guilty. On this
record, “[t]he fact that [defendant] may have been persuaded, or was reluctant, to accept
the plea is not sufficient to warrant the plea being withdrawn.” (People v. Ravaux (2006)
142 Cal.App.4th 914, 919.) The trial court did not abuse its discretion in denying
defendant’s motion to withdraw his pleas.
                                              II
                                       Proposition 47
       Next, defendant contends the provisions of Proposition 47, the Safe
Neighborhoods and Schools Act, apply retroactively to reduce his drug possession
conviction to a misdemeanor. We disagree.
       Proposition 47 provides that defendant’s crime of conviction, possession of
methamphetamine, is a misdemeanor unless certain exceptions apply. It also added
section 1170.18, subdivision (a) which provides that a person who is “currently serving a
sentence for a conviction . . . of a felony or felonies who would have been guilty of a
misdemeanor under the act that added this section . . . had this act been in effect at the
time of the offense may petition for a recall of sentence before the trial court that entered
the judgment of conviction in his or her case to request resentencing . . . .”



                                             13
       Defendant argues that pursuant to In re Estrada (1965) 63 Cal.2d 740, the
provisions of Proposition 47 operate retroactively to reduce his drug possession
conviction to a misdemeanor. Estrada held: “When the Legislature amends a statute so
as to lessen the punishment it has obviously expressly determined that its former penalty
was too severe and that a lighter punishment is proper as punishment for the commission
of the prohibited act. It is an inevitable inference that the Legislature must have intended
that the new statute imposing the new lighter penalty now deemed to be sufficient should
apply to every case to which it constitutionally could apply.” (Id. at p. 745.) This
includes “acts committed before its passage provided the judgment convicting the
defendant of the act is not final.” (Ibid.) Thus, if an amended statute mitigates
punishment, the amendment will operate retroactively to impose the lighter punishment
unless there is a saving clause. (Id. at p. 748.)
       The Legislature may signal its intent by including an express saving clause making
the amendment prospective, “or its equivalent.” (People v. Nasalga (1996) 12 Cal.4th
784, 793.) People v. Yearwood (2013) 213 Cal.App.4th 161 held that a provision in
Proposition 36, the Three Strikes Reform Act of 2012, § 1170.126, which created a
postconviction resentencing procedure similar to the one in section 1170.18, was the
“functional equivalent” of a saving clause. (Yearwood, at p. 172.) Relying on Yearwood,
this court has concluded that a defendant who may potentially benefit from retroactive
application of Proposition 47 is limited to the statutory remedy of petitioning for recall of
sentence in the trial court after the judgment has become final. (People v. Noyan (2014)
232 Cal.App.4th 657, 672.)
       We agree with the result in People v. Noyan, supra, 232 Cal.App.4th 657. The
procedure set forth in section 1170.18 applies to a “person currently serving a sentence
for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor
under the act . . . .” Defendant is such a person. The act clearly states the manner in
which any adjustment in his sentence is to be accomplished. Defendant is limited to the

                                              14
statutory remedy of petitioning the trial court for recall of sentence when the judgment is
final.
                                      DISPOSITION
         The judgment is affirmed.




                                                        DUARTE                , J.



We concur:



         RAYE               , P. J.



         MAURO              , J.




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