Filed 11/21/13 P. v. Serna 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,
                                                                                            F065038
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. BF132265A)
                   v.

ISMAEL AUERLJO SERNA,                                                                    OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Charles R.
Brehmer, Judge.
         Sylvia Whatley Beckham, 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, Charles A. French and John G.
McLean, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         After a jury was impaneled for trial, defendant Ismael Auerljo Serna reached a
plea agreement with the prosecution and entered a plea of no contest to second degree
murder (Pen. Code, § 187, subd. (a))* on the condition that he would be sentenced to 15
years to life in state prison.
       On appeal, Serna contends that the trial court erred by (1) failing to refer him to
the director of the regional center for the developmentally disabled as specified by
section 1369 when the issue of competence was raised initially and (2) denying his
motion to withdraw his plea.
       We affirm the judgment.
                      FACTUAL AND PROCEDURAL HISTORIES
       On August 30, 2010, the Kern County District Attorney filed an information
against Serna charging him with premeditated murder with the special circumstance of
arson (§§ 187, subd. (a), 190.2, subd. (a)(17)(H); count 1) and arson of an inhabited
structure causing great bodily injury (§ 451, subd. (a); count 2).
       At a readiness hearing on March 25, 2011, Serna’s attorney, Charles Soria, raised
a doubt about his client’s competence to stand trial based on his educational background
and “SSI [documentation] that says he … has mood disorders and stuff like that.” The
trial court suspended criminal proceedings pursuant to section 1368 and appointed Dr.
Bruce Walker to evaluate Serna. Subsequently, the court learned Walker was unavailable
and appointed Dr. Dean Haddock to examine Serna.
       Haddock conducted a psychological assessment of Serna and provided a written
report in which he concluded Serna was “considered competent to stand trial at this
time.” After describing the reason for the referral, Haddock explained his understanding
of the competence determination: “In general, competency to stand trial requires that an
individual have sufficient current ability to consult with their lawyer with a reasonable
degree of rational understanding and whether they have a rational as well as factual
understanding of the proceedings against them, and the ability to cooperate with their


       *Subsequent    statutory references are to the Penal Code unless otherwise stated.



                                              2.
attorney in the preparation of their defense. Considerations of incompetency would
include, but not be limited to individuals suffering from[] mental retardation, organic
impairment, psychiatric thought disorder, and/or substance induced [impairment].”
         Using Raven’s Progressive Matrices Intelligence Test, the doctor determined that
“Serna’s intellectual ability was estimated as being in the Borderline Intellect (IQ 80-85)
range.” On the Competency Assessment Instrument (Revised), Serna achieved a raw
score of 12 out of 22, placing him in the competent range. On the Revised Competency
Assessment Instrument, Serna achieved a raw score of 42 out of 56, also placing him in
the competent range. It was noted that Serna was “presently disabled,” and he had
received Social Security disability benefits as a child. (There was no further discussion
of the nature of this disability.) Serna reported that he had been in special education
through eighth grade and quit going to school after two weeks in high school. Serna also
told Haddock, “I am slow and do not understand things.”
         Haddock wrote that “Serna’s personality appears to be best characterized as
learning disabled [and] antisocial .…” After concluding that Serna was competent to
stand trial, Haddock also observed, “due to his illiteracy and Borderline Intellect [Serna]
will need simple explanations of the court procedures.”
         On June 8, 2011, the trial court considered Haddock’s report, and Serna’s attorney
submitted the matter on the doctor’s report. The court found Serna competent to stand
trial and reinstated criminal proceedings.
         Trial began on September 12, 2011, with the trial court ruling on Serna’s motions
in limine. The next day, the court considered and granted the People’s motion in limine
to admit a covertly tape-recorded statement of Serna. A panel of jurors was selected and
sworn.
         The next day, September 14, 2011, the court was informed that the parties had
reached a proposed disposition. The prosecution would amend the information to add
count 3, second degree murder, and would dismiss counts 1 and 2, and Serna would enter


                                             3.
a plea of guilty or no contest to count 3 on the condition of a sentence of 15 years to life
in prison. Serna signed a “Felony Advisement of Rights, Waiver and Plea Form,”
initialing acknowledgements of constitutional rights, including the rights to an attorney
and a trial by judge or jury; the right to testify; the rights to present a defense and
confront witnesses; and the right against self-incrimination.
       The trial court addressed Serna, asking him if he understood that his sentence
would be 15 years to life (he did) and if he had any questions (he did not). “This is what
you’d like to do?” the court asked, and Serna responded, “Yep.” Soria was confident that
his client understood the consequences of entering a plea to amended count 3. The court
accepted Serna’s plea of no contest to count 3, murder in the second degree, and the
prosecutor dismissed the remaining counts and enhancements. Serna was referred to the
probation department for a presentence investigation.
       On October 26, 2011, Serna asked to withdraw his plea. Soria moved to be
relieved as attorney of record, and the trial court granted the motion. On December 1,
2011, Serna’s new counsel, Henry Marquez, filed a “Motion for Mental Evaluation” and
declared his doubt about Serna’s mental competence. The court granted the motion.
       Dr. Eugene Couture examined Serna and provided Marquez with an evaluation
regarding Serna’s mental capacity. Couture administered the Kaufman Brief Intelligence
Test and Wide Range Achievement Test (Fourth Edition) and determined that Serna’s
scores were in a range consistent with mental retardation. Couture evaluated Serna using
the Competence Assessment for Standing Trial for Persons with Mental Retardation
(CAST-MR). He found Serna’s responses most closely matched those of individuals
who are not competent to stand trial. He noted that in the earlier competence evaluation,
Haddock had used competency tests “aimed at intact adults, not at mentally retarded
persons.” Couture reported that Serna believed he had agreed to a sentence of 15 years in
prison (i.e., a determinate sentence), but “[w]hen he got to court, he apparently learned
that the sentence was 15 years to life.”


                                               4.
       In his concluding “Impressions and Recommendations,” Couture wrote:

       “His understanding of the operation of the court was impaired. His
       understanding of the charges against him was good, and his ability to
       describe the events leading up to his arrest, is good. Mr. Serna may not,
       however, have fully understood the plea as it was offered to him before.
       Further, pressure to quickly accept a plea probably would only confuse him
       more. Mr. Serna probably is not capable of making quick intelligent
       decisions. Rather, he should be able to spend more time with his attorney
       considering his options in a collaborative process. He alleges that he was
       not able to do this with his prior attorney.

               “In my opinion, Mr. Serna is only borderline competent to stand
       trial. He really does not understand the courtroom procedures and the
       limitations of the criminal justice system. He is capable of telling a
       narrative about what happened to him with adequate detail and timelines
       and, thus, can cooperate with counsel in building a rational defense. I think
       he deserves some consideration, however, for his lack of intellectual acuity
       in a high demand situation[] like the courtroom.

              “I would recommend that Mr. Serna be allowed to reconsider his
       plea and to work with his attorney, Mr. Marquez, in developing an
       alternative defense.”
       On March 23, 2012, Serna filed a motion to withdraw his plea. He asserted that a
defense investigator “exceedingly pressured” him and his mother to enter a plea. Serna’s
mother, Jessie Villarreal, wrote that she felt pressured by the investigator, Bruce Binns, to
write a note to her son telling him to agree to the plea bargain. Serna argued that his
“will was completely overborne by the urgency with which he was being approached by
the investigator, by the urgings of his mother’s note, and both of those factors taken
together with his lack of mental capacity to fully understand the court process, or of the
repercussions of his immediate decision.”
       Marquez wrote a declaration in support of Serna’s motion to withdraw.
Referenced in the declaration and included with the motion papers were (1) a handwritten
note signed by Villarreal and (2) a typed statement signed by Villarreal describing
Binns’s conduct. The handwritten note appears to be dated “10/11” and reads:



                                             5.
       “Ismael

       “Mr. Bruce Binn is giving me this paper, telling me that I need [to] tell you
       to take this plea deal 15 to life; if not [they’re] going to give you life. He
       said that I need to do this before your court started. He told me this was
       your last chance if not that you would do life. All I could do was cry, not
       knowing if I should or not (write you this). Bruce kept telling that I had to
       hurry up. So he can give you this note.

                                   “Your mom

                                   “Jessie Villarreal”
       The People filed an opposition to Serna’s motion with supporting declarations by
Binns and the prosecutor assigned to Serna’s case, Arthur Norris. In his declaration,
Binns stated that, on the morning of September 14, 2011, he spoke to Villarreal, and she
expressed her concern about the court’s adverse rulings on pretrial motions the previous
day. (The “adverse rulings” likely referred to the court’s ruling that a covertly recorded
statement by Serna was admissible.) Villarreal wrote a note to her son, “expressing her
desire that he accept the previously[] offered plea bargain of a plea to second degree
murder for 15 years to life.” Binns showed the note to Norris and asked if the offer of
second degree murder was still available; Norris indicated that it was. The same
morning, Binns and Soria met with Serna in a jury room and allowed him to read his
mother’s note. According to Binns, “Mr. Soria (in my presence) sat with Mr. Serna and
explained the various rights he would have to give up in order to enter a plea. [¶] …
[¶] … During that discussion, Mr. Serna asked several questions, all of which Mr. Soria
answered.”
       Binns further declared that, on March 26, 2012, Norris telephoned Binns and read
the note attached to Serna’s motion to withdraw his plea. He continued: “The note
which Mr. Norris read to me over the phone is NOT the note Ms. [Villarreal] wrote that
morning. The allegations she makes in that note, regarding what I supposedly told her,
are absolutely NOT true.”



                                             6.
        In his declaration, Norris stated that, on September 14, 2011, while he was waiting
for trial to start, Binns approached him. Binns told Norris that Villarreal had decided it
was now advisable for her son to enter a plea if the previous offer was still on the table.
Binns allowed Norris to read the note. Norris declared that the handwritten note attached
to Serna’s motion to withdraw his plea was not the note he was shown on September 14,
2011.
        On March 27, 2012, the trial court considered Serna’s motion to withdraw his
plea. The parties submitted the matter on the motion papers, and the motion was denied.
The court explained:

        “The burden of proof is clear and convincing evidence.… I was here in this
        court when the plea was taken. I took the plea. I was here when the trial
        commenced. And there was a significant period of time for Mr. Serna to
        consider the People’s offer. Also, as I understand it, this was an offer that
        had been made prior to trial. So this was not simply an offer that was
        presented to Mr. Serna where he had 5, 10, 15, 20, even 30 minutes to
        essentially review it. He had a substantial period of time. Also, he was
        questioned on the record in detail. He also spoke to his counsel at the time,
        and his counsel stipulated that the plea was taken in a knowing, intelligent,
        and voluntary fashion as well. He also filled out and signed a written
        waiver form. He did have effective assistance of counsel, as he does today.

                “As to any pressure on Mr. Serna, if there … was any, it was his
        pressure that he imposed upon himself. It’s not uncommon for a defendant
        in a criminal case to enter a plea when the reality of empanelment of the
        jury occurs. Mr. Serna was under no obligation to enter a plea at the time
        of trial, regardless of what communication he had or did not have with his
        mother. It was his decision. There is no evidence that Mr. Serna was not
        mentally capable of making a reasonable, rational, knowing, voluntary, and
        intelligent decision at the time he entered the plea.

               “This is inclusive of the doctor’s report. There are a couple of
        portions of the doctor’s report—and I did review all of it very carefully—
        but a couple that kind of jumped out at me, and one of those he scored 100
        percent as to his understanding of what the procedures were and what was
        happening in the courtroom.

               “Also, although it is not dispositive of the issue, the defendant does
        have a prior criminal record and so, therefore, does have some familiarity


                                              7.
       with the legal system and how it works and what his rights are having
       entered pleas in prior cases.

             “But even setting that portion aside, I am not convinced clearly and
       convincingly that his plea should be withdrawn.”
       The court proceeded to sentencing and imposed a sentence of 15 years to life in
state prison.
       Serna filed a notice of appeal on May 25, 2012.
                                        DISCUSSION
I.     Section 1369 and the competence determination
       Serna contends the judgment must be reversed and the matter must be remanded
with instructions to the trial court to refer him to the director of the regional center for the
developmentally disabled. We disagree.
       It is well established that the criminal trial of an incompetent defendant violates
the defendant’s right to due process. (Medina v. California (1992) 505 U.S. 437, 453;
People v. Weaver (2001) 26 Cal.4th 876, 903.) When a criminal defendant’s attorney
informs the court of his or her belief that the defendant may be mentally incompetent, the
court is required to order that the question of the defendant’s mental competence be
determined in a hearing held pursuant to sections 1368.1 and 1369. (§ 1368, subd. (b).)
Criminal proceedings are suspended pending the competence determination. (Id.,
subd. (c).)
       Section 1369 sets forth the procedures for determining whether a criminal
defendant is competent to stand trial. The trial court is required to appoint a psychiatrist
or licensed psychologist to examine the defendant. (§ 1369, subd. (a).) The examiner, in
turn, must evaluate “the defendant’s ability or inability to understand the nature of the
criminal proceedings or assist counsel in the conduct of a defense in a rational manner as
a result of a mental disorder .…” (Ibid.) Section 1369, subdivision (a), further provides,
“If it is suspected the defendant is developmentally disabled, the court shall appoint the



                                               8.
director of the regional center for the developmentally disabled … or the designee of the
director, to examine the defendant.”
       Here, Soria expressed a doubt about Serna’s competence and the trial court
properly suspended the proceedings and appointed a doctor, Haddock, to examine Serna.
Haddock determined that Serna’s intellectual ability was in the “Borderline Intellect (IQ
80-85) range” and concluded that he was competent to stand trial.
       On appeal, Serna claims that, after reviewing Haddock’s report, the trial court
erred by failing to refer him to the director of the regional center for the developmentally
disabled for another evaluation pursuant to section 1369.
       As a preliminary matter, the Attorney General argues that this claim has been
forfeited because Soria failed to request such a referral. “When there exists substantial
evidence of the accused’s incompetency, a trial court must declare a doubt and hold a
hearing pursuant to section 1368 even absent a request by either party.” (People v.
Koontz (2002) 27 Cal.4th 1041, 1064, italics added (Koontz).) “It is not essential for the
defendant, his or her counsel, or the prosecutor to make a motion which raises the issue
of the defendant’s competence in order to permit consideration of the issue on appeal.”
(People v. Castro (2000) 78 Cal.App.4th 1402, 1416 (Castro), disapproved on another
ground by People v. Leonard (2007) 40 Cal.4th 1370, 1389 (Leonard); see also People v.
Ary (2004) 118 Cal.App.4th 1016, 1021 [competence determination cannot be waived by
defendant or counsel].) Accordingly, we reject the Attorney General’s position that the
claim has been forfeited.
       Nonetheless, Serna’s appellate claim fails on the merits. First, on the record
before it, the trial court was not required to refer Serna to the director of the regional
center for the developmentally disabled. Second, even assuming an error, there was no
prejudice.
       When there is substantial evidence of incompetence, the trial court must declare a
doubt and conduct a competence hearing. (Koontz, supra, 27 Cal.4th at p. 1064.) As we


                                              9.
have discussed, section 1369 requires the trial court to refer a defendant to the director of
the regional center “[i]f it is suspected the defendant is developmentally disabled .…” To
prevail on his claim, Serna must show that Haddock’s report provided substantial
evidence that he was developmentally disabled.†
       “Developmental disability,” for the purpose of determining mental competence, is
defined as “a disability that originates before an individual attains age 18, continues, or
can be expected to continue, indefinitely and constitutes a substantial handicap for the
individual, and shall not include other handicapping conditions that are solely physical in
nature. As defined by the Director of Developmental Services, in consultation with the
Superintendent of Public Instruction, this term shall include mental retardation, cerebral
palsy, epilepsy, and autism. This term shall also include handicapping conditions found
to be closely related to mental retardation or to require treatment similar to that required
for mentally retarded individuals .…” (Former § 1370.1, subd. (a)(1)(H).)‡ Mental
retardation is “the condition of significantly subaverage general intellectual functioning
existing concurrently with deficits in adaptive behavior and manifested before the age of
18.” (Former § 1376, subd. (a); see fn. 3, ante.) “‘Mild’ mental retardation is typically
used to describe people with an IQ level of 50-55 to approximately 70.” (Atkins v.

       †We   reject Serna’s argument, made in his reply brief, that he need not show
substantial evidence of developmental disability because “mere suspicion is all that is
necessary to trigger the duty to make the referral.” Nothing in the record suggests that
the trial court (or Serna’s own attorney) actually suspected that Serna was
developmentally disabled. In any event, Serna cites no case law supporting his position
that he may prevail with a showing of less than substantial evidence of developmental
disability. (Cf. People v. Lewis (2006) 39 Cal.4th 970, 1047 [“Only when the accused
presents ‘substantial evidence’ of incompetence does due process require a full
competency hearing”]; Castro, supra, 78 Cal.App.4th at pp. 1416-1418 [analyzing
whether trial court was required to appoint director of regional center for
developmentally disabled under substantial evidence standard].)
       ‡ Effective January 1, 2013, the term “mental retardation” in sections 1370.1 and
1376 was replaced by the term “intellectual disability,” without substantive change in the
definitions. (Stats. 2012, ch. 457, § 1.)



                                             10.
Virginia (2002) 536 U.S. 304, 308, fn. 3, citing American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000), pp. 42-43.) The
California Legislature, however, “has chosen not to include a numerical IQ score as part
of the definition of mentally retarded.” (In re Hawthorne (2005) 35 Cal.4th 40, 48.)
       Serna contends that Haddock’s diagnosis, along with his “recognition of [Serna’s]
low mental functioning provided sufficient objective evidence” of mental retardation to
trigger the requirement that he be referred to the director of the regional center for the
developmentally disabled. We are not convinced. Haddock knew that mental retardation
is a consideration in evaluating competence, but he never used either the term “mentally
retarded” or “developmentally disabled” to describe Serna. Instead, Haddock estimated
Serna’s intellectual ability as “Borderline Intellect (IQ 80-85).” Although the statutory
definition of mental retardation does not include a numerical IQ score, Serna’s score of
80 to 85 is above the score typically associated with mild retardation. (Atkins v. Virginia,
supra, 536 U.S. at p. 308, fn. 3; cf. Castro, supra, 78 Cal.App.4th at p. 1420 [substantial
evidence of developmental disability where defendant had IQ of 46 to 69].) Haddock
determined that Serna was “learning disabled” and “antisocial,” but we hesitate to
conclude that this is substantial evidence of mental retardation. It was also reported that
Serna is a high school dropout and describes himself as “slow,” but these facts do not
necessarily suggest that he is mentally retarded. In sum, we cannot say that Haddock’s
report was substantial evidence that Serna is developmentally disabled such that the trial
court was required, as a matter of law, to appoint the director of the regional center for
the developmentally disabled to examine him.§


       §The Attorney General correctly notes that Couture’s report, which was prepared
in February 2012, may not be considered in our analysis of whether there was substantial
evidence of mental retardation requiring appointment of the director of the regional
center of developmental disability. Couture’s report was not available to the trial court in
June 2011 when it made its competence determination.



                                             11.
       Further, even assuming the trial court erred by not appointing the director of the
regional center, we discern no prejudice. While a trial court’s failure to hold a
competence hearing at all requires reversal of any ensuing criminal conviction, the failure
to appoint the director of the regional center to conduct the evaluation is not as egregious
an error. (Leonard, supra, 40 Cal.4th at p. 1390.) In the latter case, the ensuing
conviction “need not be reversed unless the error deprived [the defendant] of a fair trial to
determine his competency.” (Ibid.)
       In Leonard, the defendant suffered from epilepsy, a developmental disability, but
the trial court failed to appoint the director of the regional center to examine him as
required under section 1369. (Leonard, supra, 40 Cal.4th at p. 1388.) The defendant
was, however, evaluated by experts who were familiar with his epilepsy and considered it
in evaluating his competence. (Id. at p. 1390.) Our Supreme Court held there was no
prejudice, concluding:

               “In summary, appointment of the director of the regional center for
       the developmentally disabled (§ 1369, subd. (a)) is intended to ensure that a
       developmentally disabled defendant is evaluated by experts experienced in
       the field, which will enable the trier of fact to make an informed
       determination of the defendant’s competence to stand trial. Here, defendant
       was evaluated by doctors who possessed these qualifications, and their
       testimony provided a basis for the trial court’s ruling that defendant was
       competent to stand trial. Thus, the court’s failure to appoint the director of
       the regional center to examine defendant did not prejudice defendant.”
       (Leonard, supra, 40 Cal.4th at p. 1391.)
       In the present case, Haddock’s report shows that he is a diplomate of the American
Board of Disability Analysts and a life fellow of the American College of Forensic
Examiners. He was aware of the fact that mental retardation is considered in determining
competence, and he assessed Serna’s intellectual abilities using an intelligence test. Yet,
Haddock did not find that Serna was mentally retarded or developmentally disabled. He
did, however, consider Serna’s intellectual limitations in making his competence
assessment. Haddock concluded that Serna was competent to stand trial but



                                             12.
recommended that he would need simple explanations because of “his illiteracy and
Borderline Intellect.” Under these circumstances, the trial court’s failure to appoint the
director of the regional center to examine Serna did not deprive Serna of a fair trial on his
competence and, consequently, did not cause prejudice.
II.      Motion to withdraw plea
         Serna next contends that he should have been allowed to withdraw his plea
because he showed good cause that he suffered from a mental disability that made him
susceptible to misunderstanding the consequences of his plea. He also argues that the
court misunderstood the undisputed facts.
         “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.” (§ 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. [Citations.] However, ‘[a] plea may not
be withdrawn simply because the defendant has changed his mind.’ [Citations.]”
(People v. Huricks (1995) 32 Cal.App.4th 1201, 1208 (Huricks).) The defendant has the
burden to demonstrate good cause by clear and convincing evidence. (People v. Shaw
(1998) 64 Cal.App.4th 492, 496.) “Guilty 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.)
         We review the trial court’s decision whether to permit a defendant to withdraw his
plea for an abuse of discretion. We review the court’s factual findings and credibility
determinations for substantial evidence. (People v. Fairbank (1997) 16 Cal.4th 1223,
1254.)
         Serna asserts that his claim he did not understand the plea agreement is
uncontroverted. Serna did not testify or submit a declaration regarding his understanding


                                             13.
of the plea agreement, but Couture indicated that Serna reported he did not understand
the agreement was for a sentence of 15 years to life. The trial court, however, was free to
reject Serna’s version of his understanding of the plea agreement. (People v. Hunt,
supra, 174 Cal.App.3d at p. 103 [in deciding defendant’s motion to withdraw his plea,
“the trial court is not bound by uncontradicted statements of the defendant”].) The trial
court noted that Serna had a significant period of time to consider the plea offer of 15
years to life and he was questioned about it in detail. At the time the plea was entered,
the trial court was able to observe and question Serna, and Soria stipulated that the plea
was taken in a knowing, intelligent, and voluntary fashion. Further, Couture wrote that
Serna’s understanding of the charges against him and the events leading up to his arrest
were good and opined that he was capable of cooperating with counsel. This was
substantial evidence from which the trial court could determine that Serna understood the
plea agreement and voluntarily entered his plea.
       In Huricks, supra, 32 Cal.App.4th at pages 1206 and 1208, the defendant argued
that he was subjected to “overbearing duress” to enter a plea of no contest based on his
family’s advice that he take the plea bargain and his attorney’s statement to the court that
the defendant was “confused and indecisive” about whether to take the plea. The
appellate court rejected the claim of duress based on family pressure, concluding that
“[n]othing in the record indicates he was under any more or less pressure than every other
defendant faced with serious felony charges and the offer of a plea bargain.” (Id. at
p. 1208.) Similarly, in this case, the trial court determined that any pressure on Serna
was “pressure that he imposed upon himself” as the reality of a jury trial approached. We
see no abuse of discretion.
       Serna argues, in the alternative, that the motion to withdraw his plea should be
remanded for further consideration because the trial court apparently misunderstood the
evidence. Couture wrote that Serna scored 100 percent on understanding case events, but
he scored 44 percent on basic legal concepts. In denying Serna’s motion to withdraw his


                                            14.
plea, the trial court stated that Serna scored 100 percent as to his understanding of what
the procedures were. We are not persuaded that this statement requires remand. The trial
court’s statement appears to us to be a misstatement rather than a misunderstanding of the
record. Further, we are not convinced that the trial court’s statement amounts to a
“fail[ure] to properly exercise its discretion” as Serna claims. Serna relies on People v.
Ruiz (1975) 14 Cal.3d 163, 165, in which the defendant’s conviction for heroin for sale
was reversed because the jury was not instructed on the specific intent to sell. The
California Supreme Court modified the verdict to a single count of possession of heroin
and remanded for a new sentencing hearing. (Id. at p. 168.) Remand was called for
because the trial court, in deciding the sentence, “relied significantly if not wholly upon
the fact that defendant stood before the bench convicted of possession of heroin for sale.”
(Ibid.)** In the present case, however, the trial court did not rely significantly or wholly
upon the fact that Serna scored 100 percent on a portion of Couture’s examination.
Rather, the court relied on its own observation of the trial proceedings, the ample time
Serna had to consider the plea offer, and the statements Serna and Soria made at the time
the plea was entered. These facts are supported in the record. Given these
circumstances, we conclude the trial court acted within its discretion in ruling on Serna’s
motion to withdraw his plea and no remand is necessary.




       **We   also note that the court went on to limit its holding: “We by no means
intend to imply or indicate by this decision that whenever a sentencing court bases its
determination on a factual premise which later turns out to be erroneous the defendant is
entitled to a new sentencing hearing. We hold only that when as in this case the
sentencing court bases its determination to deny probation in significant part upon an
erroneous impression of the defendant’s legal status, fundamental fairness requires that
the defendant be afforded a new hearing and ‘an informed, intelligent and just decision’
on the basis of the facts.” (People v. Ruiz, supra, 14 Cal.3d at p. 168.) Here, there is no
claim that the trial court had an erroneous impression of Serna’s legal status.



                                             15.
                                    DISPOSITION
      The judgment is affirmed.

                                                              _____________________
                                                                          Oakley, J.††
WE CONCUR:


 _____________________
 Kane, Acting P.J.


 _____________________
 Franson, J.




      ††Judge   of the Superior Court of Madera County, assigned by the Chief Justice
pursuant to article VI, section 6, of the California Constitution.



                                          16.
