Filed 4/20/16 P. v. Sloyer CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E063100

v.                                                                      (Super.Ct.No. FWV1404005)

DESIREE MICHELLE SLOYER,                                                OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson

Uhler, Judge. Affirmed.

         Daniel R. McCarthy, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Barry Carlton and Heidi Salerno, Deputy Attorneys General, for Plaintiff and

Respondent.




                                                             1
       Defendant and appellant Desiree Michelle Sloyer pled guilty to felony bringing a

weapon into jail (Pen. Code, § 4574, subd. (a)).1 In return, defendant was placed on

formal probation for a period of 36 months on various terms and conditions, including

serving 180 days in county jail. Defendant subsequently moved to withdraw her guilty

plea. The trial court denied defendant’s motion and defendant appealed. Defendant’s

sole contention on appeal is that the trial court abused its discretion in denying her

motion to withdraw her guilty plea. We find no abuse and affirm the judgment.

                                               I

                    FACTUAL AND PROCEDURAL BACKGROUND2

       On July 3, 2014, defendant arrived at the West Valley Detention Center to visit an

inmate. Prior to checking in for the visit, defendant secured all of her property in a locker

located in the waiting area. When the deputies asked defendant if she had anything

illegal in her purse, defendant gave the deputies permission to search it. After defendant

opened the locker, deputies observed two Wal-Mart bags full of property next to a black

purse and defendant crouching down placing her body between the deputies and the

locker in an attempt to hide her movements inside the locker. The deputies stepped to the

side and observed defendant reaching for an outer pocket of her purse with her left hand,

while removing the bags with her right hand. The deputies ordered defendant to leave the



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

       2   The factual background is taken from the probation officer’s report.


                                               2
purse and bags where they were and to step back into the office. The deputies then

removed the purse and bags from the locker and took them to the office.

       The deputies placed the items on a desk and asked defendant if there was anything

in the purse that could poke or stick them. Defendant responded, “ ‘No.’ ” While

searching the purse and reaching into a pocket of the purse, the deputies felt a sharp pain

in their finger and quickly removed their hands. Defendant immediately said, “ ‘Oh, my

blade.’ ” The deputies then removed a two-inch razor blade from the pocket.

       On September 23, 2014, a felony complaint was filed charging defendant with

bringing a weapon into a jail (§ 4574, subd. (a)).

       On October 6, 2014, defendant failed to appear and the trial court issued a warrant

for her arrest.

       On October 30, 2014, defendant pled guilty to the charge in exchange for three

years of formal probation on various terms and conditions, including serving 180 days in

county jail. As part of the plea, defendant also agreed to be released on a Cruz3 waiver.

During the plea hearing, defendant responded in the negative when the trial court asked

defendant whether she had been threatened to change her mind and plead guilty. In

addition, she responded in the affirmative when the court questioned her whether she was

pleading freely and voluntarily and whether she had sufficient time to discuss her case,

the nature of the charges, the consequences of her plea, and any possible defenses with

her attorney. Defendant acknowledged that she understood her statutory and

       3   People v. Cruz (1988) 44 Cal.3d 1247, 1254 (Cruz).


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constitutional rights and that she was waiving those rights. When the court asked

defendant whether she had any questions about the proceedings, defendant responded,

“No, your Honor.” Defendant’s counsel joined in acknowledging that defendant had

been advised of and understood the rights she was waiving by pleading guilty, but

refused to join in the plea. The trial court found that defendant freely, voluntarily,

intelligently, and knowingly waived her rights and that there was a factual basis for the

plea. Defendant was subsequently released on the Cruz waiver in return for her promise,

among other things, to not commit other crimes and return for resentencing on

December 2, 2014, or face a maximum term sentence.

       On December 2, 2014, defendant requested and was granted a continuance to

January 5, 2015.

       On January 5, 2015, the matter was continued to January 9, 2015, so that

defendant’s first attorney could be present because defendant had requested that she

wanted to withdraw her guilty plea.

       On January 9, 2015, when defendant’s attorney asked her if she wished to

withdraw her plea, defendant responded, “No, your Honor.” The court thereafter

proceeded to sentence defendant in accordance with the plea agreement. Defendant was

placed on formal probation for a period of three years on various terms and conditions,

including serving 180 days in county jail with a credit of 12 days for time served.

Defendant accepted the terms and conditions of her probation, and inquired whether she




                                              4
was eligible for an early release. The trial court explained that decision would be for the

sheriff’s facility to determine.

       While serving her jail sentence, on February 18, 2015, defendant requested to

withdraw her plea.

       A hearing on defendant’s request to withdraw her plea was held on March 6, 2015.

At that time, the trial court informed defendant that her attorney had never forced her or

coerced her in pleading guilty; that her attorney had in fact not joined in the plea but only

in the waivers of rights; and that defendant had gone forward with the plea on her own.

Defendant acknowledged that her attorney had not coerced her to plead guilty but

explained that when she came in on October 30, 2014, to take care of her arrest warrant,

she was unexpectedly placed into custody and that she had only agreed to plead guilty

that day so she could be released from custody to take care of her children.4 The trial

court noted that between October 30, 2014 and January 9, 2015, defendant was not in

physical custody and did not withdraw her plea during that time, even though she had

every opportunity to do so. The court further noted that there was no coercion or

pressure made by either the court or defense counsel and that defendant had made her

own decision for her own reasons. The court also stated that it had reviewed the police

reports in the case; that there was a factual basis for the plea; that the court was “very fair

and lenient” with defendant; and that defendant had plenty of time to discuss the plea


       4 The probation report indicates that defendant has two teenaged sons, ages 15
and 17, and that she resides with her father and two teenaged sons in Riverside.


                                               5
with her attorney. The court found no basis to allow defendant to withdraw her plea and

denied defendant’s motion.

                                               II

                                        DISCUSSION

       Defendant argues that the trial court abused its discretion in denying her motion to

withdraw her guilty plea, claiming she had only pled guilty so she could be released from

custody on a Cruz waiver and make arrangements for child care. She believes that her

need to arrange child care constituted duress in making her decide to plead guilty. We

disagree.

       “On application of the defendant at any time before judgment or within six months

after an order granting probation is made if entry of judgment is suspended, 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.” (§ 1018.) Mistake, ignorance, fraud, duress, inadvertence, or

any other factor overcoming the exercise of free judgment is good cause, but must be

shown by clear and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562, 566;

People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) “A plea may not be withdrawn

simply because the defendant has changed his mind.” (People v. Nance (1991) 1

Cal.App.4th 1453, 1456.) Even “[t]he fact [a defendant] may have been persuaded, or

was reluctant, to accept the plea is not sufficient to warrant the plea being withdrawn.

[Citation.] ‘Guilty pleas resulting from a bargain should not be set aside lightly and



                                               6
finality of proceedings should be encouraged.’ ” (People v. Ravaux (2006) 142

Cal.App.4th 914, 919.)

       The granting or denial of a motion to withdraw a guilty plea rests in the sound

discretion of the trial court and its decision will not be disturbed on appeal unless an

abuse of that discretion is clearly shown. (People v. Weaver (2004) 118 Cal.App.4th 131,

146.) A defendant must clearly demonstrate the trial court’s decision was arbitrary,

unreasonable or not supported by the facts. (People v. Superior Court (Giron) (1974) 11

Cal.3d 793, 796-797.) When assessing whether the trial court abused its discretion, we

must adopt the trial court’s factual findings if supported by substantial evidence. (People

v. Fairbank (1997) 16 Cal.4th 1223, 1254.) When conflicting inferences may be drawn

from the evidence, we must adopt the inference supporting the challenged order. (People

v. Hunt (1985) 174 Cal.App.3d 95, 104.)

       The trial court did not abuse its discretion here. Defendant claims that she

accepted the plea offer because she was unexpectedly placed in custody on October 30,

2014, following the warrant for her arrest, and desired to be released from custody so she

could arrange for child care. However, the record shows defendant’s children were two

teenaged boys, ages 17 and 15, who lived with her father. There is no evidence in the

record to support defendant’s position that she entered into the plea involuntarily and

unknowingly because she needed to arrange for child care. Defendant also did not

provide any corroborating evidence to support her position.




                                              7
       Moreover, although defendant may have been stressed by the need to arrange child

care for her sons, such concerns do not necessarily mean that she could not and did not

knowingly and voluntarily decide to enter her plea. Before her plea was accepted,

defendant acknowledged that she was freely doing so both in the waiver form that she

executed and orally to the court. Defendant pled guilty after properly being advised of

her statutory and constitutional rights, after acknowledging understanding those rights,

and after waiving those rights. Defendant said nothing to indicate, nor showed any sign,

that her extraneous concerns were affecting her ability to think clearly and to knowingly

enter a plea. At that time, neither she nor her attorney gave the court any indication that

defendant’s mental condition rendered her unable to understand and freely choose

between the alternatives with which she was faced.

       “Often the decision to plead guilty is heavily influenced by the defendant’s

appraisal of the prosecution’s case against [her] and by the apparent likelihood of

securing leniency should a guilty plea be offered and accepted. 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. The rule that a plea must be intelligently made to be

valid does not require that a plea be vulnerable to later attack if the defendant did not

correctly assess every relevant factor entering [her] decision.” (Brady v. United States

(1970) 397 U.S. 742, 756-757.)




                                              8
       Defendant has not shown good cause to allow withdrawal of her guilty plea.

While section 1018 is to be liberally construed and a plea of guilty may be withdrawn for

mistake, ignorance, inadvertence or any other factor overreaching defendant’s free and

clear judgment, defendant has not established by clear and convincing evidence the facts

upon which such ground for withdrawal exist. (People v. Shaw (1998) 64 Cal.App.4th

492, 496.) “The burden is on the defendant to present clear and convincing evidence the

ends of justice would be subserved by permitting a change of plea to not guilty.

[Citation.]” (Ibid.)

       Indeed, courts have rejected as good cause such claims as psychological pressure

from counsel, including bad tactical advice (People v. Urfer (1979) 94 Cal.App.3d 887,

892); unforeseen changes in circumstances that make the plea bargain less attractive to

the defendant (People v. Powers (1984) 151 Cal.App.3d 905, 917); mistaken expectations

of a lenient sentence, even if a result of good faith, but wrong, advice from counsel

(People v. Fratianno (1970) 6 Cal.App.3d 211, 221-222, and cases cited therein) or even

if it is the result of a good faith reliance upon nonbinding, nonmisleading remarks of the

court or prosecutor (People v. Spears (1984) 153 Cal.App.3d 79, 87-88; People v. Vento

(1989) 208 Cal.App.3d 876, 879-880); and a mistaken belief in the strength of the

People’s case (People v. Watts (1977) 67 Cal.App.3d 173, 181-183).

       The record before us affirmatively shows defendant was fully and completely

advised of her constitutional rights and of the consequences of her plea, that she

understood those rights and consequences, and that she knowingly and intelligently



                                             9
waived those rights and entered her plea with a full and clear appreciation of the

consequences. We find that the trial court’s ruling did not exceed “the bounds of reason,

all of the circumstances being considered.” (People v. Giminez (1975) 14 Cal.3d 68, 72.)

The trial court did not abuse its discretion in finding that defendant’s circumstances did

not rise to the level of the good cause that is required to withdraw a guilty plea.

                                             III

                                       DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                 RAMIREZ
                                                                                        P. J.
We concur:



CODRINGTON
                           J.



SLOUGH
                           J.




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