Filed 1/27/15 P. v. Streeter CA2/4
                     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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  This opinion has not been certified for publication or ordered published for 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

                                           SECOND APPELLATE DISTRICT

                                                          DIVISION FOUR




THE PEOPLE,                                                                          B251128

           Plaintiff and Respondent,                                                 (Los Angeles County
                                                                                     Super. Ct. No. BA386212)
           v.

DONALD STREETER,

           Defendant and Appellant.


           APPEAL from a judgment of the Superior Court of Los Angeles County,
Monica Bachner, Judge. Affirmed.
           Jean Matulis, under appointment by the Court of Appeal, for Defendant and
Appellant.
           Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Susan Sullivan Pithey and Elaine F. Tumonis, Deputy Attorneys General, for
Plaintiff and Respondent.




 
       Donald Streeter was charged with murder (Pen. Code, § 187, subd. (a); all further
statutory citations are to this code) with enhancements for personal use of a handgun
(§ 12022.53, subds. (b), (c), & (d)) and for a crime committed for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)(C)). He moved to suppress admissions he
had made during police interrogation. After that motion was denied, he accepted the
prosecution’s offer in a plea bargain. Pursuant to the plea agreement he pleaded no
contest to voluntary manslaughter (§ 192, subd. (a)), with the same enhancement
allegations. Shortly after entering his plea, he discharged his retained attorney, asked for
the appointment of new counsel, and moved to withdraw the plea. Following briefing
and a hearing at which testimony was taken, and argument presented, the trial court
denied the motion. Defendant appeals from his conviction, arguing the trial court erred in
denying his motion to withdraw the plea. We find no error and affirm the conviction.


                    FACTUAL AND PROCEDURAL SUMMARY
       Understandably, since there was a disposition without trial in this case, no issue is
raised with respect to sufficiency of the evidence. We therefore present the following
brief summary of the underlying evidence, taken from the transcript of the felony
preliminary hearing and defendant’s admissions in interrogation. In the late hours of
November 13, 2010, or the early morning of the next day, there was a shooting at or near
the intersection of 46th Street and Central Avenue in Los Angeles. The apparent targets
were members of defendant’s gang, the 4-Deuce. Later that evening defendant was asked
to participate in a retaliatory attack on a location where members of the gang responsible
for the shooting were thought to be. They were in the area of the Bottoms Up Club on
50th Street and Central Avenue. He was handed a gun and told to shoot persons at the
location, and was threatened with expulsion from his gang if he refused. Defendant was
a passenger in one of two cars that drove to the location and, on arriving, fired several
shots through an open window on the passenger side of the vehicle. In doing so, he shot
and killed Stephanie Thompson, a young woman who was standing at the location.
Later, in interrogation, he expressed regret for the killing and said he had been forced to


                                             2 
do it. Defendant was 18 years old at the time of these crimes.
         The interrogation was conducted by two detectives who had asked defendant to
accompany them to the police station; he agreed to do so. At an encounter about a week
before, defendant had told officers that he knew about the shooting, named two persons
(not himself) as being responsible or having information about it, and said he would try to
get more information. At the police station the officers read defendant a Miranda
admonition about his right to remain silent and to have an attorney present during
questioning. (Miranda v. Arizona (1966) 384 U.S. 436.) Defendant waived those rights,
both orally and by signing a waiver form, and agreed to discuss the matter with the
officers. He initially pointed to others as responsible for the shooting, but eventually
confessed that he was the shooter who killed Ms. Thompson. At trial, defendant moved
to suppress evidence of the statements he made to the officers. The basis of his motion
was that he suffered from cognitive limitations that prevented him from understanding
the rights he was giving up. Much of defendant’s opening brief is devoted to that issue,
but the trial court’s denial of his motion to suppress is not raised as a ground of appeal.
Nor could it be in light of the negotiated disposition of the case, even though a certificate
of probable cause was granted by the trial court. (§ 1237.5; see People v. Johnson (2009)
47 Cal.4th 668, 679.) The only pertinence of the suppression proceedings is that
evidence of defendant’s cognitive limitations, developed at that phase of the case, bears
on his motion to withdraw the no contest plea. We address this in our discussion of that
issue.
         The parties had been discussing a possible disposition of the case for some time
before reaching agreement. Jury selection was still in progress when, on April 11, 2013,
the court stated its understanding that the parties had agreed on a disposition.
Immediately after that announcement, defendant interjected, “Can I sign it today? I don’t
want to come back to court no more.” His attorney explained that defendant “wants to
have this over today, Your Honor. In other words, he wants to be sentenced today as
well.” The court then explained the procedure it would follow in taking the plea. The
prosecutor set out the People’s offer: defendant would plead guilty to voluntary


                                              3 
manslaughter, under a new count to be added as Count 2, and would be sentenced to state
prison for 11 years for that crime. He also would admit the special allegation of firearm
use under section 12022.5 subdivision (a), for which an additional term of four years
would be added, and would admit the gang allegation under section 186.22 subdivision
(b)(1)(C), which would add 10 years to the sentence, for a total of 25 years, less credit for
time already served. The People would dismiss the murder charge and other allegations
then pending. The court asked defendant if this is what he understood the agreement to
be, and he replied “Yes, ma’am,” indicating that it was. The information was then
amended in accordance with the prosecutor’s statement. The court observed that there
had been some discussion about the facility where defendant would be placed in the
prison system. The court stated that it could not order a particular placement, but would
recommend that prison authorities evaluate defendant for incarceration at a location
where he would receive treatment if necessary. Defendant acknowledged that he
understood.
       The court proceeded with the taking of the waivers and plea. In response to the
court’s question whether he had discussed the charges with his attorney, defendant asked,
“What do you mean?” The court repeated and explained its question, and defendant then
answered in the affirmative. The prosecutor asked defendant if he understood the
sentence he could receive was in state prison, that this was only because of his plea to the
lesser crime (voluntary manslaughter), and that if he were convicted of first degree
murder with the other allegations he would be exposed to a sentence of 50 years to life.
Defendant said he understood this. The prosecutor then reviewed the specific rights
defendant was giving up and defendant said that he understood. When the prosecutor
reached the right to confront witnesses and present defenses and asked defendant if he
understood that right, defendant responded, “What does she got? I don’t understand.”
The prosecutor restated these rights and defendant then said he understood, and waived
them. He also acknowledged understanding of and waived the remaining rights. The
court then reached the fees and assessments it was required to impose, and defendant
acknowledged that he understood. Defendant acknowledged that no one had threatened


                                              4 
him or anyone near to him in order to make him enter the plea, and that he was entering it
of his own free will and that is what he wanted to do. There was a pause while defendant
discussed what “consequences” of his plea meant, then he stated that he understood. He
also said he did not need more time with respect to the plea. He then entered the plea—
no contest—and admitted the firearm use and gang allegations.
       There apparently had been a request that members of the decedent’s family be
present for the sentencing, and the court stated that it would handle that in the afternoon.
The court excused the jurors.
       At the afternoon session, after the court asked defense counsel for her calculation
of defendant’s credit entitlement and asked if there was anything else, defendant stated,
“Yes, Judge. I want to take my plea back, ma’am. I need to let the people know. I need
more time to think. And my lawyer knows about this case.” The prosecutor was
surprised, and the court stated that it had not heard a legal basis to withdraw the plea.
The prosecutor indicated that he would prepare a brief for the court that day, which he
did.
       The next day, when the case was called, defense counsel stated that defendant had
asked that she be removed as his attorney. Asked whether this was a Marsden motion
(People v. Marsden (1970) 2 Cal.3d 118), she explained that it was not, and that
defendant was “firing me.” Defendant acknowledged this was “correct.” The court
granted his motion to relieve retained counsel and asked the indigent defense panel to
select an attorney. At the next hearing a member of that panel, Jack Fuller, was
appointed to take over defendant’s representation, and the matter was continued for
sentencing.
       Defendant’s formal motion to withdraw the plea was filed on July 2, 2013. It was
based on two grounds: “That defendant believed that he would have a right to appeal the
denial of his motion to suppress evidence of his statement [to police] and he has now
learned that such an order cannot be appealed” and ineffective representation by counsel
“in that the defendant was not advised that he would not have a right to appeal the denial
of his motion to suppress his statement.” The motion was supported by defendant’s


                                              5 
declaration that when he entered the plea he was “given the impression that [he] would be
permitted to appeal the denial of [his] motion to suppress [his] statement” and that he
“later learned that this is a non-appealable order and that [he] will have no recourse to
challenge the court’s ruling” on the motion. Defendant also stated that if he had been
advised that he could not appeal the order denying his motion he would have demanded
his right to jury trial, and that he now wishes to withdraw the plea and reinstate his not
guilty plea to the murder charge.
       The prosecutor objected to defendant’s declaration as evidence of the factual
assertions it made, and argued that if defendant wishes to present evidence on what he
thought and why he acted in a particular way, he would have to testify and be subject to
cross-examination. His new counsel agreed that defendant would testify “specifically
and only to the issue of whether or not he was advised that he would or would not be able
to have appellate rights as to the issue of the denial of the motion to keep his statement.”
       In his ensuing testimony defendant’s attorney asked whether defendant was told
by his previous attorney that the statements made to police at the time of his arrest would
be heard by the jury. He responded that “she [the attorney] never told me none of that.”
Asked whether he decided to plead guilty because the judge had ruled the statements
would be heard by the jury, he answered in the affirmative. He was next asked whether
he understood he “would be able to appeal the judge’s ruling, that is to have another court
decide whether or not the judge was right in ruling that your statements could come in?”
He answered, “No. No.” Defense counsel tried again, asking whether, when he pled
guilty, defendant hoped “to be able to go to another court and ask them to say that your
statements would not be able to go in front of a jury?” He responded, “No, I didn’t
understand none of that.” Counsel made several further attempts at the question.
Defendant said he was just told to say yes, and he “didn't know what I was saying yes
to.”
       On cross-examination by the prosecutor, defendant was asked whether he knew an
offer had been made when he accepted it. He responded, “I said no. I said no, and she
came out here and told my family tell me to take this deal. I told the lady in the back, no,


                                              6 
let’s continue, go to trial, and some type of way I was told I was going to get life. So I
didn’t want to get life so I said yeah. Yeah, I remember taking 25, yeah.” And again: “I
was told I was going to lose the trial.” Defendant said he did not know what “was really
going on. I was just told to say yes, yes, yes. I didn’t know what the question really
meant.” Asked whether he was threatened, defendant replied, “Man, I was under duress.
I didn’t know . . . I was forced to take it, yes.” By whom? “That lawyer kept saying yes,
looking at me saying yes, take it.” Asked whether he was saying the lawyer threatened
him, defendant answered “That’s not how it came out of my mouth, sir . . . You can’t
force me to say something. I just told you I can’t really say yes or no.” Counsel then
asked whether defendant’s lawyer promised anything other than what was discussed on
the record in court, and he replied, “No, she didn’t tell me none of that. That’s what she
didn’t do.” He said his lawyer threatened him. Asked how, defendant answered that she
said “yes, take it. Take it. Say yes. Say yes.” She also advised his family to tell him to
take the plea bargain, which they did.
       Counsel then asked defendant whether, when he pled, he believed he had the right
to appeal. Defendant interrupted the question with “no,” then said he did not know what
an appeal is; no one ever explained that the purpose of an appeal is to have a higher court
consider things about the case. As to his signature on the declaration filed in support of
the motion, he said “I never signed none of that” although it was his signature.
       Asked the central question whether, when he pled he believed he could appeal
anything about his case, defendant answered “no, no.” Asked again whether he believed
he could challenge the trial court’s ruling in a higher court, defendant answered “No.” It
was only “later on after the plea bargain I was, but I was never—I was never told that
before. Not, till later on, yeah. Later on I was; before, no.” He explained that he never
wanted the deal, and he “didn’t know what was going on,” he was afraid and nervous,
and “didn’t know what to do.”
       In ruling on the motion the trial court noted that there had been no discussion of a
possible right to appeal during the taking of the plea; in fact the only matter discussed
aside from the rights being waived and the actual waivers, was about placement of


                                              7 
defendant in the prison system, as to which the trial court had pointed out that it could not
direct the prison authorities to make a particular placement, but that it would make a
recommendation. During the plea colloquy defendant was given additional time to talk to
counsel about the consequences of the plea and anything else, and he said he had no more
questions for his attorney, the prosecutor, or the court. And at the present hearing he said
he did not believe he could appeal denial of the suppression motion—he did not know he
had such a right, which is understandable since he did not. Defendant’s testimony that he
was told to say “yes” to everything was not credible, since the transcript reflects that he
did not say “yes” to everything; he answered “yes” to some things and said “no” to
others. Summarizing, the court said the present motion appeared to be a kind of buyer’s
remorse. It denied the motion.
       Defendant was later sentenced in accordance with the plea bargain. He filed a
timely notice of appeal.


                                       DISCUSSION
       The decision whether to grant or deny a defendant’s motion to withdraw a plea
rests in the sound discretion of the trial court, and that court’s decision is final absent
abuse of discretion. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) Indeed, the
defendant’s burden on such a motion is to prove that an abuse occurred by clear and
convincing evidence. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456 and cases
cited.) And the usual principle for appellate review of factual findings of a trial court
applies here as well: the appellate court must accept the trial court’s factual findings if
they are supported by substantial evidence. “[A] reviewing court must adopt the trial
court’s factual findings if substantial evidence supports them.” (People v. Fairbank,
supra, at p. 1254.)
       In this case defendant argues that he was misled into believing that he could
appeal the adverse finding on his evidence suppression motion even though he
subsequently pled no contest. He argues that his diminished mental abilities brought this
case within “exceptional circumstances” which may justify withdrawal of the plea. He


                                               8 
cites People v. Osmon (1961) 195 Cal.App.2d 151, 154, for that proposition. Osman
concerned waiver of the right to jury trial, and no case has been cited or found that
applies such a broad proposition to a guilty plea, or its equivalent—a plea of no contest.
But even if there were such an exception, this case would not fit within it.
       Defendant argued he was misled into believing that his right to appeal would
survive the guilty plea, but virtually no evidence was presented to support that claim.
Although asked repeatedly during the evidentiary hearing, he never testified that his trial
counsel, or anyone else, had told him that he could appeal the suppression ruling if he
later pled guilty in a plea bargain.
       On appeal, his attorney points to evidence at the suppression hearing with respect
to defendant’s impaired ability to understand the Miranda waiver. Each side presented
an expert on this issue. Dr. Andrea Bernhard, a clinical psychologist, presented a
declaration and testified for defendant. Based on her interview of defendant and the
medical records, she did “not believe that [defendant] adequately understood Miranda
[rights] and the consequences of waiving them.”
       The prosecution expert, Dr. Ronald Markman, a forensic psychiatrist, disagreed.
He found no evidence of thought disorder. He explained, “You don’t have to be a rocket
scientist to understand Miranda warnings. You have to have a basic understanding of the
import of what they mean and how you can relate to them and respond to those warnings,
whether you choose to respond to questions or not. And in my opinion, he was capable
of doing it when I examined him.” Dr. Markman rendered a preliminary diagnosis of
defendant as dull, with normal intellectual function. Defendant understood that he could
choose not to answer questions and not to cooperate in questioning. Dr. Markman was
aware that defendant previously had been found “mildly retarded” by the regional center,
but “that was their diagnosis.” Dr. Markman did not indicate agreement.
       After hearing the evidence, the trial court found Dr. Markman “persuasive in his
opinion based on his review, that the defendant did, at the time of the interview,
understand the Miranda and intelligently and voluntarily chose to waive his Miranda
rights . . . I do find that the People have proven by a preponderance of the evidence that


                                             9 
the waiver was knowing, intelligent and voluntary.”
       In summary, not only was there a failure of clear and convincing evidence that the
trial court abused its discretion in denying defendant’s motion to withdraw his plea, there
is almost no credible evidence at all to justify a different result than the one reached by
the court. As the trial court observed, defendant presented a case of buyer’s remorse. It
may be true that he was uneasy with the bargain he had made and it is natural that he
would be nervous and ill at ease in the situation in which he found himself. But
“[a]lthough ““[t]he criminal process . . . is replete with situations requiring the “making
of difficult judgments” as to which course to follow . . . [and] . . . a defendant may have a
right, even of constitutional dimensions, to follow whichever course he chooses, the
Constitution does not by that token always forbid requiring him to choose.”’’ [Citation.]”
(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 368.)


                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                   EPSTEIN, P. J.


We concur:



       WILLHITE, J.



       COLLINS, J.




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