Filed 4/2/14 P. v. Figel 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Placer)
                                                            ----




THE PEOPLE,                                                                                  C074897

                   Plaintiff and Respondent,                                     (Super. Ct. No. 62115050)

         v.

THOMAS LYNN FIGEL,

                   Defendant and Appellant.




         Defendant Thomas Lynn Figel pled no contest to grand theft of gold dust
amalgam. Afterwards, he filed a motion to withdraw his plea. The trial court denied the
motion, finding defendant failed to show good cause. On appeal, defendant contends he
showed good cause by demonstrating he had been on drugs during the plea hearing and
did not understand the court proceedings. We disagree and affirm.
                         FACTUAL AND PROCEDURAL BACKGROUND
         Defendant was charged with grand theft of gold dust amalgam or quicksilver. A
settlement conference/plea hearing was held on March 7, 2013. On the day of the

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hearing, defendant and his lawyer, Amber Zehrung, discussed the district attorney’s plea
offer and the consequences of taking the deal. She went over a plea and waiver of rights
form with him. Defendant acknowledged he understood his rights and waived them by
initialing specified boxes. By signing the form, he acknowledged that he read it and had
enough time to discuss it with his attorney. During their discussion, and the plea hearing
itself, Zehrung never suspected defendant was under the influence or incapable of
understanding the court proceedings.
       During the plea hearing, the judge himself questioned defendant regarding his
constitutional rights. Defendant responded directly to the questions and acknowledged
that he understood his rights and waived them. He confirmed that he and his attorney
reviewed the plea and waiver of rights form. He pled no contest to the grand theft and
admitted two prior prison terms. Under the plea agreement, defendant was to receive a
sentence of four years in jail.
       Within the month, defendant submitted a motion to withdraw his no contest plea.
He claimed he was not in his right state of mind during the plea hearing because he had
been under the influence of methamphetamine, marijuana, and alcohol and was coming
down from a high. He could not comprehend what he was admitting to, but he did not
tell anyone he was on drugs or in any way impaired.
       The judge who heard the plea hearing presided over the hearing on the motion to
withdraw the plea. He found the defendant not credible and Zehrung persuasive and
denied the motion.
                                       DISCUSSION
       Defendant argues the trial court abused its discretion when it denied his motion to
withdraw his plea. He contends he had good cause for withdrawal since he was not in his
right state of mind at the time of the plea hearing and therefore did not freely exercise his
judgment. We are not persuaded.
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                                    Standard Of Review
       A motion to withdraw a plea may be granted if there is good cause. (Pen. Code,
§ 1018.) “To establish good cause, it must be shown that defendant was operating under
mistake, ignorance, or any other factor overcoming the exercise of his free judgment.
[Citations.] Other factors overcoming defendant’s free judgment include inadvertence,
fraud or duress.” (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.)
       “ ‘[T]he withdrawal of such a plea rests in the sound discretion of the trial court
and a denial may not be disturbed unless the trial court has abused its discretion.’
[Citation.] An appellate court will not disturb the denial of a motion unless the abuse is
clearly demonstrated.” (In re Brown (1973) 9 Cal.3d 679, 685.)
                                             II
                 The Trial Court Acted Within Its Discretion In Denying
                        Defendant’s Motion To Withdraw His Plea
       Defendant contends the trial court abused its discretion by not allowing him to
withdraw his plea. According to defendant, he established good cause for withdrawal by
demonstrating he had been high on methamphetamine, alcohol, and marijuana. He
claims he was coming down from the high during the hearing, and while in this condition
he was not in his right state of mind and could not understand the court proceedings. He
asks us to believe he could understand the words spoken during the proceedings, and
responded appropriately, but could not comprehend what he was admitting to.
       There is evidence in the record, however, to support the trial court’s determination
that defendant understood the proceedings and “knowingly and intelligently” entered a
plea of his own free will. (People v. Ravaux (2006) 142 Cal.App.4th 914, 918.) Before
the plea hearing, defendant and his attorney reviewed a plea and waiver of rights form.
The form required him to initial boxes indicating he understood and waived specified

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rights. By signing the form, he acknowledged that he had read it and had enough time to
discuss it with his attorney.
       At the plea hearing, the judge asked defendant if he understood the proceedings
and his rights. Defendant repeatedly affirmed he understood. There was no indication he
was confused or unaware of his situation nor did he mention he was high or feeling ill.
       The sole evidence in favor of defendant was his own, self-serving testimony, given
at the motion to withdraw hearing, which directly contradicted his previous statements.
The judge did not find defendant’s testimony credible. “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.” (People v. Ravaux, supra, 142
Cal.App.4th at p. 918.) Here, the same judge presided over both hearings and was able to
observe and compare defendant’s behavior. It was within his discretion to discount
defendant’s testimony.
       Zehrung testified that at no time before or during the plea hearing did she suspect
defendant was under the influence or incapable of understanding what was going on in
court. The judge found her testimony to be credible and persuasive.
       Defendant argues that “[t]he question in this case becomes whether substantial
justice would have been accomplished or defeated by the granting of his motion to
withdraw his plea.” For support, defendant cites two cases. Both cases involve granting
a continuance, not withdrawing a plea. (People v. Jenkins (2000) 22 Cal.4th 900; People
v. Beeler (1995) 9 Cal.4th 953.) One of the cases (Beeler) does not even mention
substantial justice.
       Substantial justice is not the test used to grant a motion to withdraw a plea; good
cause is. (See Pen. Code, § 1018.) Given that the trial judge chose not to believe
defendant’s testimony, no good cause was shown. Defendant was given a choice, in
court, represented by an attorney. He cannot change his mind later because he does not

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like the consequences of his decision. The trial court acted well within its discretion
when it denied defendant’s motion to withdraw his plea.
                                      DISPOSITION
       The judgment is affirmed.



                                                        ROBIE                 , Acting P. J.



We concur:



      MAURO                 , J.



      HOCH                  , J.




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