Filed 2/6/14 P. v. Nash 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065963
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF262933)
                   v.

MICHAEL DAVID NASH,                                                                      OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Valeriano
Saucedo, Judge.
         Patrick J. Hennessey, Jr., 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, Louis M. Vasquez and
Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

         *   Before Gomes, Acting P.J., Franson, J. and Peña, J.
       Michael David Nash appeals from a judgment following his plea of no contest to
one count of making criminal threats (Pen. Code, § 422)1 and his acknowledgement of
two prior strike and serious felony convictions (§§ 667, subds. (b)-(e), 1170.12, subds.
(a)-(d)), and one prior prison term (§ 667.5, subd. (b)). Nash was sentenced to nine years
in prison pursuant to a negotiated plea agreement. His sole argument on appeal is that the
trial court erred by refusing to allow him to withdraw his plea. We affirm the judgment.
                   FACTUAL AND PROCEDURAL BACKGROUND2
       Nash was arrested on the morning of January 26, 2012 after police responded to
reports of a domestic disturbance at the residence he shared with his girlfriend, J.J. Upon
their arrival, Visalia police officers encountered the “visibly hysterical” girlfriend and
listened to her describe a harrowing experience which she had just endured. Fueled by
anger and approximately ten shots of liquor, Nash had wrapped duct tape around J.J.’s
hands, feet, and mouth, and repeatedly threatened to kill her as she sat helpless on the
concrete floor of a detached garage.
       At one point, Nash placed J.J. inside of his pickup truck and stated his intention to
drive her to a remote location, “blow her face off” with one of his guns, and dump her
body. J.J. eventually escaped and ran to a neighbor’s home for help. Nash later
barricaded himself inside the garage to avoid arrest, but was taken into custody following
a standoff with the police department’s SWAT team.
       On March 12, 2012, the Tulare County District Attorney filed a criminal
information charging Nash with making criminal threats (Counts 1 & 3), false
imprisonment (§ 236; Count 2), kidnapping (§ 207, subd (a); Count 4), resisting,
delaying, or obstructing an officer in the performance of the officer’s duties (§ 148, subd.

       1   All further statutory references are to the Penal Code unless otherwise indicated.
       2 The facts relating to the charged offenses are taken from the preliminary hearing
transcript.



                                               2.
(a)(1); Count 5), inflicting corporal injury on a cohabitant (§ 273.5, subd. (a); Count 6),
and resisting an executive officer by means of threats or violence (§ 69; Count 7).
Enhancement allegations were attached to all of these counts except Count 5 based upon
prior convictions in 2007 for felony assault on a police officer and a prior prison term
served as a result of those convictions.
       Nash was arraigned on March 19, 2012, at which time he pled not guilty to all
charges and denied the special allegations. On August 1, 2012, pursuant to a plea
agreement for a stipulated sentence of nine years in prison, Nash pled no contest to
Count 1 and admitted the allegations regarding his prior convictions and prison term. In
exchange for his plea and admissions, the remaining counts were to be dismissed and one
of the prior strike convictions would be stricken. Judgment proceedings in accordance
with the plea deal were scheduled to take place on August 29, 2012.
       Nash filed a motion to withdraw his plea on August 29, 2012. Two grounds for
relief were asserted in the written motion: First, Nash claimed to have had diminished
mental capacity at the time of his guilty plea due to the effects of a prescription
medication known as Seroquel. Second, he alleged the District Attorney intentionally
misled him to believe that the victim, who had previously declined to testify at the
preliminary hearing, was now willing to participate as a prosecution witness at trial.
When the matter was heard by the trial court, Nash’s arguments focused exclusively on
the effects of his medication.
       The motion hearing began on September 13, 2012 with Nash advising the court
that he had skipped his morning medications in order to be cognizant for the proceeding.
Had he not done so, jail personnel would have administered his regular dosages of
Seroquel and other medications. In light of these representations, the trial court
continued the hearing to allow medical staff at the jail to address the advisability of such
behavior and any impact it might have on Nash’s mental state.



                                              3.
       When the hearing resumed the following day, Nash explained that he was
prescribed Zoloft for depression, Seroquel as a sleep aid, and Gabapentin for pain relief.
He had again refused the administration of his medications because doing so allowed him
to have a “clear head.” Referring back to the plea proceedings of August 1, 2012, Nash
testified to taking his medications in the morning and consequently experiencing a
“cloudy state of mind.” In other testimony, Nash claimed to have no memory of
accepting the plea agreement and submitted that he was unable to make rational decisions
for himself at the time.
       Testimony was received from Alyssa Padilla, who oversaw the mental health and
health services operations in the Tulare County jail system. Ms. Padilla had no medical
qualifications, but was able to discuss pertinent jail records relating to Nash’s allegations.
According to those records, Nash took his morning medications after returning from the
August 1, 2012 hearing, not prior to attending it. The records further indicated Nash had
been prescribed Prozac rather than Zoloft.
       The trial court denied the motion at the conclusion of the hearing. The basis for its
decision included the following observations: “Throughout July 31, Mr. Nash was an
active participant in the trial process and never once did the Court observe Mr. Nash
being sleepy or unable to proceed. Indeed, he was a very active participant in the jury
selection process that was going on. He was regularly conferring with [his attorney] and
was, from the Court’s observation, clear in his behavior and his view of the matter that
was before the Court.
       “When he returned to court on August 1, 2012, and at the time that the Court took
the change of plea, Mr. Nash appeared in the same condition that he’d been in on
July 31 … Mr. Nash did not appear sleepy, he did not appear out of it. Indeed, he
appeared very clear and, from the Court’s perspective, ready to go.” The trial court also
referenced transcript excerpts from the August 1, 2012 hearing while discussing specific
examples of Nash’s active participation and apparent lucidity.

                                              4.
       Nash was sentenced to a nine-year term of imprisonment, consisting of four years
on Count 1 plus an additional five years for the prison prior as required by section 667,
subdivision (a)(1). A certificate of probable cause was issued with respect to the validity
of his guilty plea. This timely appeal followed.
                                       DISCUSSION
       Section 1018 authorizes the withdrawal of a guilty plea prior to judgment upon a
showing of good cause. To establish good cause, the defendant must show by clear and
convincing evidence that he or she pleaded guilty due to mistake, ignorance, or some
other factor which overcame their exercise of free judgment. (People v. Johnson (2009)
47 Cal.4th 668, 679; People v. Nocelotl (2012) 211 Cal.App.4th 1091, 1096.) Although
the statute is liberally construed to promote justice (§ 1018), “[g]uilty pleas resulting
from a bargain should not be set aside lightly and finality of proceedings should be
encouraged.” (People v. Hunt (1985) 174 Cal.App.3d 95, 103 (Hunt).) The outcome of a
section 1018 motion lies within the discretion of the trial court based on its consideration
of all relevant factors and circumstances necessary to bring about a just result. (People v.
Shaw (1998) 64 Cal.App.4th 492, 495-496 (Shaw).)
       The decision to deny a motion to withdraw a guilty plea will be upheld on appeal
unless the defendant can show a clear abuse of discretion. (People v. Fairbank (1997)
16 Cal.4th 1223, 1254.) Such an abuse is found “if the court exercises discretion in an
arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of
justice.” (Shaw, supra, 64 Cal.App.4th at p. 496.) The standard of review requires us to
accept all factual findings of the trial court that are supported by substantial evidence.
(Fairbank, supra, 16 Cal.4th at p. 1254.) “‘Where two conflicting inferences may be
drawn from the evidence it is our duty to adopt the one supporting the challenged order.’”
(People v. Harvey (1984) 151 Cal.App.3d 660, 667)
       On the issue of Nash’s purported cognitive difficulties, it was entirely within the
trial court’s discretion to consider and rely upon its own observations of his appearance

                                              5.
and demeanor. (People v. Ravaux (2006) 142 Cal.App.4th 914, 918.) Absent a contrary
showing in the record, we defer to the trial court’s assessment that Nash was fully
cognizant at the change of plea hearing and its credibility determination in rejecting his
contrary claims at the plea withdrawal hearing. (Ibid.) Nash’s self-serving testimony is
insufficient by itself to establish grounds for reversal. (Hunt, supra, 174 Cal.App.3d at
p. 103.)
       The transcript of the August 1, 2012 hearing indicates Nash responded intelligibly
and appropriately to more than twenty different questions regarding his guilty plea and its
legal implications. In doing so, he specifically denied taking any “drugs, narcotics or
prescription medication” that could affect his ability to understand the nature of the
proceedings. In addition, Nash’s trial counsel responded affirmatively when the court
asked, “Do you represent that in your judgment your client understands his rights?”
Finally, the veracity of Nash’s post-plea contentions about being under the influence of
medication was seriously called into question by the conflicting testimony of Ms. Padilla.
These facts constitute substantial evidence in support of the trial court’s findings with
respect to the validity of the guilty plea in this case.
       We reach the same conclusion with regard to appellant’s claim that the plea was
improperly induced by means of fraud or deception. As the argument goes, the District
Attorney intentionally lied to defense counsel by representing that J.J., who had
previously declined to participate in the criminal proceedings, “changed her mind and
decided to testify.” Despite raising the issue, Nash essentially concedes he cannot satisfy
his burden under the standard of review. A footnote in his opening brief reads:
“Unfortunately, it cannot be determined one way or the other whether this statement, if
made, was true.” This is an accurate assessment of the evidence in the record, which
means Nash did not establish good cause for the withdrawal of his guilty plea by clear
and convincing evidence. We thus find no abuse of discretion by the trial court in its
denial of the motion.

                                               6.
                            DISPOSITION
The judgment is affirmed.




                                7.
