Filed 11/21/14 P. v. Philthilath CA5


                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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



THE PEOPLE,                                                                                F067783

         Plaintiff and Respondent,                                           (Super. Ct. No. VCF276393)

                   v.
                                                                                         OPINION
KHAMMON TAUC PHILTHILATH,

         Defendants and Appellants.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Joseph A.
Kalashian, Judge.
         Tonja R. Torres, 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, Catherine Chatman and
Raymond L. Brosterhouse II, Deputy Attorneys General, for Plaintiff and Respondent.


                                                    -ooOoo-



*        Before Hill, P. J., Cornell, J. and Gomes, J.
       Khammon Tauc Philthilath appeals from a judgment entered after the trial court
denied his motion to withdraw his no contest plea to possession of methamphetamine for
sale. We reject Philthilath’s contention the court abused its discretion in denying his
motion to withdraw his plea. We agree, however, with his contention that he is entitled
to additional presentence custody credit and therefore modify the judgment and affirm the
judgment as modified.
                                            FACTS1
       On December 5, 2012, sheriff deputies working an undercover operation at a
casino “observed an Asian male adult with multiple tattoos on his body walking very fast
through a section of the casino floor before sitting down and playing at a casino slot
machine.” One of the undercover deputies engaged the male—later identified as
Philthilath—in conversation and asked if he knew anyone from whom the deputy could
“score some criss.” Philthilath looked at the deputy and asked, “Crystal?” The deputy
said yes, and asked if he could buy a “twenty.” Philthilath said he would walk out to his
car to get it and then meet the deputy in the restroom to complete the deal.
       Around 10 minutes later, Philthilath returned and went into the men’s restroom.
Philthilath gave a small, white plastic bindle to the undercover deputy in exchange for a
$20 bill. The deputy left the restroom and informed other deputies of the transaction.
Deputies contacted Philthilath inside the casino and took him into custody. The
substance he gave the undercover deputy tested positive for methamphetamine. When
questioned, Philthilath elected not to provide a statement.
                              PROCEDURAL BACKGROUND
       On December 7, 2012, Philthilath was charged in a criminal complaint with
possession of methamphetamine for sale (Health & Saf. Code, § 11378). The complaint


1      Because there was no trial, the facts are taken from the probation officer’s report.
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further alleged that Philthilath had suffered one prior strike conviction (Pen. Code,2
§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), one prior controlled substances conviction
(Health & Saf. Code, § 11370.2, subd. (b)), and four prior prison terms (§ 667.5, subd.
(b)).
        On December 19, 2012, Philthilath entered a no contest plea and admitted the
special allegations with the understanding he would receive a sentence of 32 months plus
three years, unless the prior controlled substances conviction was determined to be
invalid, in which case he would receive a 32-month sentence.
        Philthilath subsequently retained private counsel and, on May 17, 2013, filed a
motion to withdraw his no contest plea on the ground the plea was “constitutionally
defective.” The motion argued that the plea was not voluntary and intelligently made
under the circumstances because Philthilath’s public defender failed to discuss his case
with him before rushing him to accept the plea. As a result, Philthilath “took the plea not
fully comprehending the consequences of his plea.”
        Philthilath’s motion further argued that, if his public defender had discussed the
defense of his case with him, she would have learned he had “a viable defense of
entrapment in that he was not predisposed to commit a crime until he was induced by an
undercover officer.” And if the public defender had in turn presented the potential
entrapment defense to the prosecutor, it was “probable” the prosecutor would have
offered Philthilath a more advantageous plea deal than “the 5 years indicated here.”
        In support of his motion to withdraw his plea, Philthilath submitted a declaration
stating: “There was no discussion of my case with my Public Defender prior to entering
my plea. I did talk to her about not entering a no contest plea, but my Public Defender
told me to take the plea. Based on those instructions, I obeyed them and said, ‘Yes’ to
the court during the proceedings. The no contest plea was done very quickly and I did

2       Further statutory references are to the Penal Code unless otherwise specified.
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not fully understand or comprehend, that by going along with her advi[c]e I was waiving
my constitutional rights and giving up my right to a trial.”
       The trial court heard Philthilath’s motion to withdraw his plea on June 11, 2013.
Erin Brooks—a public defender who represented Philthilath in proceedings occurring
after the change-of-plea hearing in December 2012—testified that she had no contact
with Philthilath before he entered his plea. Brooks further testified that Alana Friedman,
the public defender who represented Philthilath at the time he entered his plea, was no
longer with her office but had moved to Maryland.
       Following Brooks’ testimony, defense counsel began her argument observing, “I
believe that what happened in this case, you know, within two weeks of Mr. Philthilath
being charged, he’s taking a plea without any, in my opinion, development of defense in
his case.” After describing details contained in the police reports, defense counsel
argued: “So I think … he had a pretty decent entrapment defense that could have been
developed more before being rushed into a plea. I do believe that a good defense lawyer
would have developed that defense and discussed that with the District Attorney.”
Defense counsel concluded by requesting that the court either allow Philthilath to
withdraw his plea or reduce his sentence.
       In opposition, the prosecutor observed: “[T]he defense is arguing that there was a
defense that should have been explored. But every defense attorney has a different view
of the case. The fact remains at this time during this plea [Philthilath] was read all of his
rights. It was clear on the transcript he knew what he was doing. In his extensive history
in the criminal justice system he’s taken at least 25 other pleas. He’s been through it
before. He knows what he was doing.” The prosecutor noted Philthilath “certainly [got]
something in consideration for his plea” in that he received a mitigated term when he was
facing a “maximum exposure” of 10 years. The prosecutor concluded there had been no
showing Philthilath was “unaware of his rights” or “laboring under any
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misapprehension.” Instead, there was only “speculation based on the record and a few
self-serving statements from [Philthilath] in his declaration.”
       The trial court denied Philthilath’s motion to withdraw his plea, explaining: “The
Court has an independent recollection of discussing this case in chambers with the
attorneys…. I know the issue of entrapment came up during those discussions as a
possible defense.
       “And I reviewed the transcript today when the plea was taken, and … Alana
Friedman was the attorney representing [Philthilath]. In my experience with Miss
Friedman, she was in my court for—assigned to my court for one year. She was a
relatively new attorney, but I’ve never had an attorney that was more conscientious,
engaged, and concerned about the welfare of her clients. I saw her in trial defending
clients and I was so impressed that I wrote a letter of recommendation for her for her new
employment wherever that may be.
       “And I do not believe that she would not have discussed the case fully with
[Philthilath] before she would have ever allowed him to plead as he did. So I don’t find
good cause. What it is, it’s buyer’s remorse. After [Philthilath] thought about it, just like
many people, he doesn’t want to go to prison. But in actuality, he got the best deal he
could get if he was gonna have to go to prison. He got the mitigated term doubled
because of the strike plus the additional three-year enhancement. It couldn’t be any less
than that.” The court then sentenced Philthilath in accordance with the terms of the plea
agreement.
                                      DISCUSSION
I.     Motion to Withdraw Plea
       To be valid, the entry of a guilty plea must be intelligent and voluntary under the
totality of the circumstances. (People v. Howard (1992) 1 Cal.4th 1132, 1177.) In other
words, the plea must represent a voluntary and intelligent choice among the alternative
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courses of action open to the defendant. (Ibid.) Specifically, waivers of constitutional
rights must be made with full awareness of both the nature of the right being abandoned
and the consequences of the decision to abandon that right. Such waivers must also be
voluntary in the sense that they are the product of a free and deliberate choice rather than
intimidation, coercion, or deception. (People v. Collins (2001) 26 Cal.4th 297, 305.)
       A defendant may seek to withdraw a guilty plea before judgment has been entered
upon a showing of good cause. (People v. Sandoval (2006) 140 Cal.App.4th 111, 123
(Sandoval).) To establish good cause, 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 free judgment. (Ibid.) “‘“[T]he withdrawal of a plea of
guilty should not be denied in any case where it is in the least evident that the ends of
justice would be subserved by permitting the defendant to plead not guilty instead; and it
has been held that the least surprise or influence causing a defendant to plead guilty when
he has any defense at all should be sufficient cause to permit a change of plea from guilty
to not guilty.”’ [Citations.]” (People v. Ramirez (2006) 141 Cal.App.4th 1501, 1507.)
“A no contest plea is treated the same as a guilty plea for this purpose.” (Id. at p. 1506.)
The burden is on the defendant to present clear and convincing evidence that the ends of
justice would be served by permitting a change of plea to not guilty. (People v. Shaw
(1998) 64 Cal.App.4th 492, 496 (Shaw).)
       Finality should be encouraged, and guilty pleas entered under a plea bargain
should not be set aside lightly. (People v. Weaver (2004) 118 Cal.App.4th 131, 145-146.)
The grant or denial of a motion to withdraw a plea is purely within the discretion of the
trial court. (Sandoval, supra, 140 Cal.App.4th at p. 123.) On appeal, the trial court’s
decision will be upheld unless there is a clear showing of abuse of discretion, i.e., the
court exercised its 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.)
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       Philthilath contends the trial court abused its discretion in denying his motion to
withdraw his plea because the court’s “factual finding that [the public defender] had
discussed the entrapment defense with [Philthilath] personally and thus had offered him
sufficient information from which to enter a knowing, intelligent and voluntary plea” was
unsupported by substantial evidence. “Rather,” Philthilath argues, “substantial evidence
indicated [his] plea was entered in ignorance of the defense, and that had [the public
defender] actually discussed entrapment with [him], he would not have entered the no
contest plea at that time.”
       Philthilath’s contention fails because it hinges on an inaccurate representation or
understanding of the basis for his motion below. Philthilath’s motion to withdraw his
plea was based not on his ignorance of a potential entrapment defense at the time he
entered the plea but on his alleged lack of understanding that he was waiving his
constitutional rights and right to a trial. Philthilath presented no argument or evidence to
the trial court that he would not have entered the plea if he had been informed of the
existence of a potential entrapment defense.
       Philthilath instead posited a theory that his public defender’s ignorance of the
potential entrapment defense—due to her alleged failure to discuss his case with him—
probably resulted in him receiving a less advantageous plea offer than he would have
otherwise received. The trial court reasonably appeared to reject this theory based on its
own independent recollection that the prosecutor and public defender specifically
discussed the issue of entrapment during discussions in chambers. The fact the issue of
entrapment arose in these discussions suggests not only that the public defender was
aware of the potential entrapment defense but also that it was a factor in the plea
negotiations.
       Moreover, contrary to Philthilath’s assertions, the trial court did not make a
specific factual finding that the public defender personally discussed the entrapment
                                               7
defense with him. Instead, the court essentially made a determination that Philthilath’s
claim that his public defender failed to discuss his case with him before advising him to
enter the plea lacked credibility. The court was not required to accept the claims made in
Philthilath’s declaration simply because the public defender was not available to refute
them. (People v. Hunt (1985) 174 Cal.App.3d 95, 103 [in deciding defendant’s motion to
withdraw his plea, “the trial court is not bound by uncontradicted statements of the
defendant”].)
       Nor was it improper for the trial court to consider its own observations regarding
the public defender’s skill and professionalism in the courtroom, as such observations
were relevant to its assessment of the credibility of Philthilath’s claim that the public
defender rushed him into entering a plea without discussing his case with him. In ruling
on a motion to withdraw a plea, the court may take into account the defendant’s
credibility and interest in the outcome of the proceedings. (People v. Ravaux (2006) 142
Cal.App.4th 914, 918.) Absent any contrary showing in the record, we defer to the trial
court’s credibility assessment of Philthilath’s claims regarding his counsel’s alleged
failings. (Ibid.)
       Based on the above, the trial court did not abuse its discretion in denying
Philthilath’s motion to withdraw his no contest plea. Philthilath did not establish, by
clear and convincing evidence, that the exercise of his free judgment was overcome. Nor
is there any indication in the record that his plea was not voluntarily made.3 We cannot
say that the trial court’s denial of Philthilath’s motion to withdraw his guilty plea was


3       In this regard, we reject Philthilath’s claim that the trial court should have inquired into
whether he had sufficient time to speak with his defense counsel before entering his plea. His
claim is based on this brief exchange during the change-of-plea hearing: “THE COURT: And
have you had now enough time to talk to your attorney about this? Do you want some more
time? [¶] THE DEFENDANT: No, just go ahead and go with this.” Philthilath’s “no” response
was not ambiguous but clearly addressed to the court’s second question of whether he wanted
more time to talk to his attorney. We find his arguments to the contrary unpersuasive.
                                                 8
arbitrary, capricious or exceeded the bounds of reason. (Shaw, supra, 64 Cal.App.4th at
p. 496.)
II.    Custody Credits
       Philthilath contends, and the People concede, he is entitled to additional custody
credits under section 4019. Philthilath received 189 days credit for actual time, and only
94 days of conduct credit. He should receive a total of 377 days credit, consisting of 189
actual days, and 188 days of conduct credit. (§ 4019, subds. (f), (h).)
                                      DISPOSITION
       The judgment is affirmed as modified. The superior court is directed to correct the
judgment to reflect 189 days of actual custody and 188 days of local conduct credit for a
total of 377 days of presentence custody credits. The superior court is ordered to prepare
and send a copy of the amended abstract of judgment to the appropriate authorities.




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