Filed 11/4/14 P. v. Crosby CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F068084

                   v.                                                   (Super. Ct. No. BF146351A)

KAREEM CROSBY,                                                                    OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Kern County. David R.
Lampe, Judge.
         John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Craig S.
Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-



        Before Gomes, Acting P.J., Kane, J., and Franson, J.
       Defendant Kareem Crosby was convicted by no contest plea of petty theft with a
prior (Pen. Code, § 666, subd. (b)).1 On appeal, he contends the trial court erred in
denying his motion to withdraw his plea. We affirm.
                             PROCEDURAL SUMMARY
       On January 23, 2013, the Kern County District Attorney charged defendant with
second degree robbery (§ 212.5, subd. (c); count 1) and petty theft with a prior (§ 666,
subd. (b); count 2). The complaint further alleged defendant had suffered two prior strike
felony convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two serious felony
convictions (§ 667, subd. (a)), and had served four prior prison terms (§ 667.5, subd. (b)).
       On February 5, 2013, defense counsel declared a doubt as to defendant’s
competency, and the trial court suspended criminal proceedings pursuant to sections 1367
and 1368.
       On March 26, 2013, the trial court found defendant competent to stand trial
pursuant to section 1368 and reinstated criminal proceedings.
       On April 9, 2013, defendant pled no contest to petty theft with a prior and
admitted suffering two prior strike felony convictions and serving two prior prison terms.
       On June 10, 2013, the date set for sentencing, defendant moved to relieve his
public defender. The trial court granted the motion, appointed new counsel, and
continued the case.
       On July 31, 2013, defendant moved to withdraw his plea. On August 23, 2013,
the trial court denied the motion and sentenced defendant to an eight-year prison term,
according to the plea agreement.




1      All statutory references are to the Penal Code unless otherwise noted.


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                                     DISCUSSION
       Defendant contends his no contest plea was not knowing, intelligent, and
voluntary because he was not taking his required mental health medication at the time he
entered the plea and because defense counsel failed to properly and adequately
investigate and advise him about a possible defense of not guilty by reason of insanity
(NGI). Accordingly, he contends the trial court erred by denying his motion to withdraw
the plea.
I.     Background
       At the hearing on the motion, defendant did not present testimony, but submitted
the matter on the declarations attached to his motion and on his mental health evaluation
performed on September 20, 2011, by the Department of Corrections and Rehabilitation
(Turning Point), which included a diagnosis of bipolar disorder, depression, and cocaine
dependence.
       A.     Defendant’s Declaration
       Defendant’s declaration in support of the motion stated:

              “1. When I was arrested in this case I had been diagnosed with Bi-
       Polar condition and have [sic] not had my required medication.

              “2. During my parole I was supervised as EOP (enhanced out
       patient) requiring psychiatric monitoring and medication. At the time of
       the offense, I was not being supervised by parole and not able to obtain my
       required mental health care.

              “3. My appointed Public Defender did not have any meaningful
       discussion regarding my case and the possible defenses, specifically any
       inquiry into my mental health at the time this offense occurred.

             “4. At the time I entered my plea, I was not fully aware of all of the
       circumstances and likely consequences of my plea.

              “6. [sic] [My new counsel] has informed me of the procedure and
       consequences of making my motion to withdraw my plea. He has advised
       me of the strong possibility of receiving a sentence of 25 years to life in

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        prison. He has strongly advised me against withdrawing my plea. After
        being advised, I still wish to proceed, and I have asked him to file the
        motion on my behalf.

                “7. I am willing to waive time to allow my case to be reinstated so
        that I can fight my case to a jury.”
        B.     New Counsel’s Declaration
        Defendant’s new counsel’s declaration in support of the motion stated that after
counsel’s appointment, he met and interviewed defendant, at which time defendant told
him the following: he had an extensive history of mental illness; he had ongoing
psychiatric problems and need for medication; at the time of the offense he was not on his
required medication, which seriously altered his perception of reality to the degree that he
was not fully aware of his surroundings or his actions; and he wanted to withdraw his
plea. Counsel declared he had subpoenaed defendant’s mental health records. He
declared he had advised defendant that if he successfully withdrew his plea, he would
subject himself to a 25-year-to-life prison sentence, and counsel strongly advised him not
to proceed due to “the very strong possibility of a life sentence under the Three Strikes
Law.”
        C.     Hearing and Ruling
        At the hearing on the motion, the following occurred:

               “[NEW COUNSEL]: Just, Your Honor, basically the gist of my
        position on [defendant’s] case is that it should have been—it should have
        been evaluated on a [section] 1017, but it never was, and without having
        that evaluation from a professional, I believe that [defendant’s] case was
        not handled efficiently and effectively and the opportunity to address
        whether or not that was—NGI defense was viable or not[—]never occurred.

               “THE COURT: Counsel?

               “[PROSECUTOR]: Your Honor, I’ll submit on the Court’s file and
        note the [section] 1368 was requested back in February, and there was a
        return on that and proceedings persisted, and simply that [defendant] is very


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       familiar with these proceedings, he knows what he’s doing, Your Honor,
       and with that I would submit.

              “THE COURT: Oh, I don’t know the latter. I’m just looking at
       what’s presented to me here and the legal requirements for a motion to
       withdraw plea, and I—I’m sorry, I should give you one final opportunity,
       [new counsel], in reply. I heard the People’s argument first because they
       had not submitted a written opposition, so I listened to that. But you are the
       moving party. You gave me your argument, I heard from counsel, I’ll hear
       your final words.

             “[NEW COUNSEL]: Your Honor, I have nothing more to submit to
       the Court.

              “THE COURT: Thank you. Then I’m prepared to rule. [¶] Based
       on everything that I have before me and what’s been submitted to me, I do
       not believe that this motion meets the clear and convincing standard for a
       motion to withdraw a plea; so I would deny the motion.”
II.    Denial of Motion to Withdraw Guilty Plea
       Section 1018 provides: “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.” The defendant has the burden
to show, by clear and convincing evidence, that good cause exists for withdrawal of his
or her guilty plea. (People v. Breslin (2012) 205 Cal.App.4th 1409, 1415-1416
(Breslin).) “[T]he 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. [Citation.]” (Breslin,
supra, at p. 1416.) “[C]lear and convincing evidence denotes proof that is clear, explicit,
and unequivocal and leaves no substantial doubt. [Citations.]” (People v. Yovanov
(1999) 69 Cal.App.4th 392, 402.) “[It] requires a finding of high probability [that it is
true],” and is “‘“sufficiently strong to command the unhesitating assent of every
reasonable mind.”’ [Citation.]” (In re Angelia P. (1981) 28 Cal.3d 908, 919.) The trial


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court is not bound to accept the defense assertions, even if uncontradicted, and is
certainly not required to accept contentions that are refuted. (People v. Knight (1951)
106 Cal.App.2d 312, 315.)
       “The decision to grant or deny a motion to withdraw a guilty plea is left to the
sound discretion of the trial court. [Citations.]” (Breslin, supra, 205 Cal.App.4th at
p. 1416.) “‘“Guilty pleas resulting from a bargain should not be set aside lightly and
finality of proceedings should be encouraged.” [Citation.]’ [Citation.]” (People v.
Nocelotl (2012) 211 Cal.App.4th 1091, 1096.) “It is entirely within the trial court’s
discretion to consider its own observations of the defendant in ruling on such a motion.
[Citation.] The court may also take into account the defendant’s credibility and his
interest in the outcome of the proceedings. [Citations.]” (People v. Ravaux (2006) 142
Cal.App.4th 914, 918 (Ravaux).) “‘A plea may not be withdrawn simply because the
defendant has changed his [or her] mind.’ [Citation.]” (Breslin, supra, at p. 1416.)
       “‘A denial of the motion will not be disturbed on appeal absent a showing the
court has abused its discretion.’ [Citations.] ‘Moreover, a reviewing court must adopt
the trial court’s factual findings if substantial evidence supports them.’ [Citation.]”
(Breslin, supra, 205 Cal.App.4th at p. 1416.)
       Defendant claims his plea was not intelligent, knowing, and voluntary because he
was not taking his required medications for his mental health problems at the time he
entered the plea. The only evidence he presented on this ground was the 2011 Turning
Point mental health evaluation and his own declarations that he had been diagnosed with
bipolar disorder, had not been taking his medication, and was not fully aware of all
circumstances and likely consequences of his plea when he entered it. Thus, the sole
evidence that defendant’s judgment was affected by a lack of medication at the time of
the plea was defendant’s self-serving assertions in support of his motion to withdraw the
plea, which were contrary to the position he took under oath at the time he entered the

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plea when he initialed and signed the plea form and assured the court he understood the
form and the consequences of his plea. This did not amount to clear and convincing
evidence of his impairment at the time of the plea. Furthermore, the judge who heard
defendant’s motion had also taken defendant’s plea, and he was in a good position to
gauge, from his observations, whether or not defendant’s declarations were credible.
(Ravaux, supra, 142 Cal.App.4th at p. 918.) The court impliedly found, based on the
evidence and its own observations, that defendant “was not impaired to the point that his
independent judgment was overcome at the time he entered the [no contest] plea.” (Ibid.)
The court was not required to believe defendant’s self-serving statements to the contrary.
The record supports the trial court’s implied conclusions that defendant understood the
choice he made and what he was giving up in exchange, and that he knowingly,
intelligently, and voluntarily pled no contest. The trial court did not abuse its discretion.
III.   Ineffective Assistance of Counsel
       A criminal defendant is constitutionally entitled to effective assistance of counsel.
(U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466
U.S. 668, 684-685 (Strickland).) Counsel’s assistance may be ineffective if, in advising
the defendant whether to accept a plea offer, he fails to inform the defendant of potential
defenses to the charges. (People v. Harvey (1984) 151 Cal.App.3d 660, 668-671.) A
defendant must show (1) counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms and (2) the deficient performance
prejudiced the defendant. (Strickland, at pp. 687, 691-692.) “‘Where, as here, a
defendant is represented by counsel during the plea process and enters his [or her] plea
upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s
advice “was within the range of competence demanded of attorneys in criminal cases.”’
[Citation.] ‘The second, or “prejudice,” requirement, on the other hand, focuses on
whether counsel’s constitutionally ineffective performance affected the outcome of the

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plea process. In other words, in order to satisfy the “prejudice” requirement, the
defendant must show that there is a reasonable probability that, but for counsel’s errors,
he [or she] would not have pleaded guilty and would have insisted on going to trial.’
[Citation.]” (Breslin, supra, 205 Cal.App.4th at pp. 1418-1419.)
       Again, defendant’s own self-serving declarations were the only evidence
defendant presented to support his claims that defense counsel failed to advise him of
possible mental health defenses and that he was not aware of all the circumstances at the
time of his plea. Nothing else in the record supports the claim that defense counsel failed
to investigate or advise defendant on possible defenses. “It is well established that a
defendant who raises ineffective assistance of counsel on appeal ‘must establish deficient
performance based upon the four corners of the record….’ [Citation.]” (Breslin, supra,
205 Cal.App.4th at p. 1419.) Defendant has failed to do so.
       But even if defendant had established that counsel’s representation was deficient,
we would nevertheless find no prejudice. Defendant did not assert in his declaration that
he would not have pled no contest if defense counsel had advised him of possible mental
health defenses. And even if he had so declared, such self-serving assertions “‘must be
corroborated independently by objective evidence,’” considering such matters as
“‘whether counsel actually and accurately communicated the offer to the defendant; the
advice, if any, given by counsel; the disparity between the terms of the proposed plea
bargain and the probable consequences of proceeding to trial, as viewed at the time of the
offer; and whether the defendant indicated he or she was amenable to negotiating a plea
bargain.’ [Citation.]” (In re Resendiz (2001) 25 Cal.4th 230, 253, abrogated on another
ground by Padilla v. Kentucky (2010) 559 U.S. 356.) In this case, defendant’s eight-year
bargain was extremely favorable compared to his 25-year-to-life exposure under the
Three Strikes law. Indeed, based on “the very strong possibility” of his receiving a life
sentence, his new counsel “strongly” advised him against withdrawing his plea.

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Defendant presented no evidence that a NGI or other mental health defense might have
been successful other than his 2011 bipolar diagnosis, his own declarations that he had
bipolar disorder and was not able to obtain his required mental health medication at the
time of the offense, and his new counsel’s declaration that defendant had informed him
that at the time of the offense his lack of medication seriously altered his perception of
reality so that he was not fully aware of his surroundings or actions. This evidence was
not sufficient to establish that defendant would not have pled and would have instead
insisted on going to trial had defense counsel discussed possible mental health defenses
with him, and it was well within the court’s discretion not to believe defendant’s self-
serving assertions. Defendant has not shown ineffective assistance of counsel.
                                      DISPOSITION
       The judgment is affirmed.




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