Filed 12/11/15 P. v. McAninch CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068975
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF231551)
                   v.

LORRIE ANN MCANINCH,                                                                     OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Valeriano
Saucedo, Judge.
         Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Peter H. Smith and Daniel B. Bernstein, Deputy Attorneys General for Plaintiff
and Respondent.
                                                        -ooOoo-


*        Before Poochigian, Acting P.J., Franson, J. and Peña, J.
      Appellant, Lorrie Ann McAninch, pled no contest in case No. VCF231551 to
possession of methamphetamine (count 1/Health & Saf. Code, § 11377, subd. (a)),
driving with a blood-alcohol content (BAC) of 0.08 percent or greater with a prior
conviction (count 3/Veh. Code, §§ 23152, subd. (b) & 23540), and being under the
influence of a controlled substance (count 4/Health & Saf. Code, § 11550, subd. (a)). In
case No. TCM265401 McAninch pled no contest to driving with a BAC of 0.08 percent
or greater with a prior conviction and she admitted an allegation that she had a BAC of
0.15 percent or more (Veh. Code, § 23578).
      On appeal, McAninch contends the court abused its discretion when it denied her
motion to withdraw her plea in case No. VCF231551. We affirm.
                                         FACTS
      On August 13, 2009, McAninch was arrested in Exeter for driving under the
influence. During a search of her purse, an officer found a marble size piece of
methamphetamine. McAninch subsequently admitted that she smoked methamphetamine
six hours prior to being stopped. Two breath tests disclosed that McAninch had a
blood-alcohol content of 0.13 percent (case No. VCF231551).
      On March 5, 2012, McAninch was arrested for driving under the influence of
alcohol or drugs (case No. TCM265401).
      On August 8, 2012, McAninch entered a plea in both cases. During the change of
plea proceeding Deputy Public Defender Anthony Dell’Anno stated:

              “MR. DELL’ANNO [DEFENSE COUNSEL]: Your Honor, it’s my
      understanding, and I want to make sure Ms. McAninch understands this,
      that at this time, in exchange for a plea of no contest or guilty to the charges
      against her, that the Court would be sentencing her to a total of 60 days on
      the TCM 265401, and a lot of that time is due to her priors.

             “At the conclusion of that, because even though it’s 60 days[,] with
      her credits at half time, that she would then be available on [case No.
      VCF]231551 to be sentenced into the Recovery Court, if I’m understanding
      that.


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              “I’ve communicated that to my client. She’s willing to enter no
       contest pleas.” (Italics added.)
       After further discussion, the court stated:

              “THE COURT: Counsel, I [would] set this for judgment
       proceedings and then I would refer the remaining count, the [Health and
       Safety Code section] 11377(a), to Recovery Court.”
       After taking McAninch’s plea in both cases the court placed her on summary
probation for five years for her convictions in each case for driving with a BAC of 0.08
or greater on condition she serve 30 days in each case for a total of 60 days. The court
then stated that it was going to refer case VCF231551 to Recovery Court.
       On August 23, 2012, McAninch was not accepted into Recovery Court and the
matter was returned to the trial court.
       On November 13, 2012, the court denied McAninch’s Marsden1 motion.
       On February 1, 2013, defense counsel Dell’Anno made an oral motion to
withdraw the plea on McAninch’s behalf. In presenting the motion, defense counsel
stated that he was convinced McAninch was under the impression her plea would ensure
she would be admitted into Recovery Court. However, she was not accepted because of
the probationary term for her driving under the influence case. The court continued the
matter to allow counsel to review a case.
       On April 8, 2013, another public defender, Timothy Rote, filed a written motion to
withdraw the plea in case No. VCF231551 on McAninch’s behalf. In a supporting
declaration McAninch alleged that when she entered her plea she was advised she would
receive Recovery Court for the drug charges and that she entered her plea as to those
counts solely on the basis that she could ultimately dispose of the felony drug possession
charge in that court. According to McAninch, she was told by the court that she was




1      People v. Marsden (1970) 2 Cal.3d 118 (Marsden).


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being sentenced to Recovery Court on the drug violations and that she would only be
exposed to prison if she violated the terms and conditions of Recovery Court.
       On April 17, 2013, McAninch failed to appear at a hearing on the motion and the
court issued a warrant for her arrest, which it stayed until May 9, 2013.
       On May 31, 2013, the court relieved the public defender’s office from representing
McAninch and appointed attorney Marcus Torigian.
       On July 23, 2013, McAninch failed to appear at a hearing and a warrant for her
arrest issued.
       On August 8, 2013, McAninch was contacted by Visalia police and cited to appear
in court on the outstanding warrant.
       On September 11, 2013, McAninch appeared in court and she was released on her
own recognizance.
       On October 25, 2013, at a hearing on the April 8, 2013 motion to withdraw her
plea, attorney Dell’Anno testified that he received the complaint in case No. TCM265401
on the day McAninch entered her plea in both cases. Dell’Anno informed McAninch that
he had just received the new complaint and had not had a chance to review it. He also
told her that he would need to continue the matter in order to obtain the lab results and
review the police report in the new case in detail. McAninch was not interested in that.
She was in custody and wanted to get out and that was the main thrust of her statement to
him. McAninch told Dell’Anno she needed to be released from custody because she was
going to be evicted from her apartment, her dogs had been unattended since she had been
in custody, and she owned a business that she was afraid was going to go under.
Dell’Anno told her he did not believe the court would allow her to be released on her
own recognizance because she had prior failures to appear in court. He also told her that
he could try to get her credit for time served on the DUI’s and that she could go to
Recovery Court on the other matters. Counsel explained to her that he had not had time
to investigate the new DUI and that most likely she was going to have to remain in

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custody while he did that. Counsel also told McAninch he could not guarantee she would
be accepted into Recovery Court because of the DUI’s but that it had been done in the
past and they would see what happened. McAninch was adamant that she needed to get
out, so despite his advice, she went ahead with the plea. Counsel subsequently found out
that Recovery Court was prepared to accept her but she rejected the acceptance.
       After that, McAninch made two appointments with Dell’Anno, neither of which
she kept, and the next time he saw her was for a Marsden hearing. McAninch never
raised any issues with Dell’Anno about her plea, only about a suppression motion.
       After Dell’Anno testified, the court continued the matter so that defense counsel
Torigian could present attorney Rote as a witness.
       On November 15, 2013, after defense counsel Torigian advised the court he did
not have any other evidence to present, the court denied the motion.
       On December 6, 2013, in case No. VCF231551 the court sentenced McAninch to
120 days on her conviction for being under the influence of methamphetamine in count 4
and no additional time on her conviction for possession of methamphetamine in count 1.
       On February 19, 2014, McAninch filed her appeal in case No. VCF231551, and
the court granted her request for a certificate of probable cause.
                                       DISCUSSION
       McAninch contends the record demonstrates she accepted the plea agreement
believing that her drug offenses would be handled through Recovery Court and that she
would not be sentenced to prison unless she violated the Recovery Court’s conditions.
Thus, McAninch believes that she established good cause for withdrawing her plea and
the court abused its discretion when it denied her motion to withdraw her plea in case No.
VCF231551. We disagree.

               “[Penal Code] [s]ection 1018 provides, in 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

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       objects and to promote justice.’ The defendant has the burden to show, by
       clear and convincing evidence, that there is good cause for withdrawal of
       his or her guilty plea. [Citations.] ‘A plea may not be withdrawn simply
       because the defendant has changed his [or her] mind.’ [Citation.] The
       decision to grant or deny a motion to withdraw a guilty plea is left to the
       sound discretion of the trial court. [Citations.] ‘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.]

               “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.
       [Citation.] 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.
       [Citation.]” (People v. Breslin (2012) 205 Cal.App.4th 1409, 1415-1416.)
       McAninch alleged in her supporting declaration that she entered her plea in both
cases because she believed she could “ultimately dispose of the felony [drug possession]
charge in [R]ecovery [C]ourt.” However, she did not testify at the hearing on her motion
or present any other evidence to support this assertion.
       Attorney Dell’Anno testified at the hearing on McAninch’s motion that McAninch
was in custody when she entered her plea in both cases and that her main concern was
being released from custody. Dell’Anno further testified that he told McAninch there
was no guarantee Recovery Court would accept her and he subsequently found out
McAninch had been accepted by the court, but she rejected the acceptance. Based on
Dell’Anno’s testimony the court could reasonably find McAninch entered her plea in
both cases because she wanted to be released from custody knowing that she might not be
accepted by the Recovery Court. Thus, the record supports the court’s implicit finding
that McAninch failed to show good cause for the court to allow her to withdraw her plea
in case No. VCF231551.
       In presenting McAninch’s oral motion to withdraw her plea on February 1, 2013,
Attorney Dell’Anno told the court that he was convinced McAninch was under the


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impression she would be admitted to Recovery Court. McAninch cites this unsworn
statement to contend she entered her plea because she believed she would be able to
dispose of her possession of methamphetamine charge in Recovery Court. This
statement cannot be considered on appeal because it was not introduced into evidence at
the October 25, 2013, hearing on the motion to withdraw her plea. (People v. Olsen
(1986) 186 Cal.App.3d 257, 264, fn. 4 [“Documents and factual matters not before the
trial court cannot be included as part of the record on appeal … and cannot be considered
by an appellate court in reviewing the judgment ….”].) However, even if this unsworn
statement by counsel were properly before us, it would not change our conclusion that
McAninch failed to show good cause to withdraw her plea because we must resolve any
conflicts in the evidence in favor of the trial court’s ruling. (People v. Mack (1992) 11
Cal.App.4th 1466, 1468.) Accordingly, we conclude that the court did not abuse its
discretion when it denied the motion to withdraw the plea.
                                     DISPOSITION
       The judgment is affirmed.




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