Filed 7/22/16 P. v. Iuli CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D069418

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD261791)

DAVID TAVITA IULI, JR.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Michael S.

Groch, Judge. Affirmed.

         John L. Staley, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew

Mestman and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
       Prior to the preliminary examination, David Tavita Iuli, Jr., entered a guilty plea to

one count of battery with serious bodily injury (Pen. Code,1 § 243, subd. (d)). Under the

plea agreement the more serious, remaining charge and allegation were dismissed. The

prosecution agreed not to oppose probation and the court indicated it would consider a

180 day "lid" on local custody as a condition of probation. The prosecution offered no

opposition to reduction to a misdemeanor after two years of successful probation.

       At the time of sentencing the trial court denied Iuli's motion to withdraw his guilty

plea and denied his motion to reduce the offense to a misdemeanor. Thereafter the court

granted him five years of formal probation, subject to 160 days in jail.

       Iuli filed a timely notice of appeal and obtained a certificate of probable cause

(§ 1237.5).

       After the plea, but before sentencing, the parties engaged in substantial efforts to

learn the extent of the victim's injuries. At the time of the plea and in Iuli's mitigation

document there was a focus on how severe the injuries were. In the meantime, the

probation officer filed a report recommending 180 days in jail as a condition of

probation. At about that time Iuli filed a motion to withdraw his plea. He contended in

the trial court, and now on appeal, that he had been mistaken as to how severe the

victim's injuries were. He contends he thought the victim had a broken lower jaw, but

learned that it was the upper jaw that was broken. Thus, Iuli argues that such injury

could have been caused by a single blow and therefore he might have been more likely to



1      All further statutory references are to the Penal Code unless otherwise specified.
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establish a self-defense claim, notwithstanding that two witnesses said Iuli had struck the

victim multiple times. The trial court found Iuli had not carried his burden to establish

good cause to withdraw the plea.

       After reviewing the record, we are satisfied Iuli did not demonstrate good cause by

clear and convincing evidence that his plea was a product of mistake. We will find no

abuse of discretion and affirm the judgment.

                                STATEMENT OF FACTS

       In the early morning hours on April 11, 2015, Iuli and his friend, John Arce, got

into a taxi cab for a ride home. The trip ended with a physical altercation between Iuli

and the driver, Morteza Farahani.

       When the driver stopped the cab, Iuli, who was angry, struck the driver in the head

numerous times. As the confrontation continued, Arce and Iuli pulled the driver out of

the cab by his legs. The driver hit his head on the pavement and Iuli kicked the driver in

the head.

       In an interview with police, Arce confirmed Iuli hit the driver from behind while

the cab was still moving. Arce also said Iuli hit the driver multiple times. The driver

suffered "a fractured nose and jaw."

                                       DISCUSSION

       As we have discussed, the claim Iuli made below and repeats in this court, is that

he thought the term "broken jaw" referred to the lower jaw, which would have required

more than a single blow to break. When he discovered it was the upper portion of the

jaw, which is more fragile, that was broken he realized he could possibly construct a self-

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defense claim based on a single blow. There are, however, some significant baselines we

must consider. First, Iuli did not testify, nor did he submit a declaration as to his mental

state at the time of the guilty plea. We also know the trial court had expressed the view at

the time of the plea that it reserved the right to vacate the plea if at sentencing it was

demonstrated that the sentence agreed to was not fair and just. It is also clear in the

record nothing was withheld from the defense. The defense and the prosecution engaged

in efforts following the plea to determine the exact nature of the victim's injuries, which

would certainly have been a factor in sentencing. Finally, we know the probation officer

recommended the maximum available local custody as a condition of probation. It is in

this context that we will discuss the merits of the appeal.

                                     A. Legal Principles

       In People v. Archer (2012) 230 Cal.App.4th 693, 702 (Archer), the court

observed: "A trial court may allow a defendant to withdraw his or her guilty or no

contest plea under section 1018 for good cause shown by clear and convincing evidence."

The court also observed, however that a defendant may not withdraw the plea simply

because the person has changed his or her mind.

       Where the defendant claims a mistake of fact exists, the defendant must show that

absent the mistake the person would not have accepted the plea bargain. (People v.

Nocelotl (2012) 211 Cal.App.4th 1091, 1097; People v. Kunes (2014) 231 Cal.App.4th

1438, 1443.)

       In reviewing the trial court's decision, we accept the trial court's factual findings if

supported by substantial evidence. The trial court's decision to grant or deny the motion

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is reviewed under the abuse of discretion standard. (Archer, supra, 230 Cal.App.4th at

p. 702.)

                                        B. Analysis

       The nub of this issue is that Iuli claims his guilty plea was based on a mistake of

fact. If the lower jaw was broken, he would be less likely to have a self-defense theory

based on a single blow. He acknowledges the blow, or blows established both battery

and serious bodily injury. However, the 270-pound Iuli conceivably could have caused

the injury with a single blow. He dismisses both the victim's statements and those of his

companion that Iuli struck the victim multiple times. Importantly, there is no evidence in

this record from Iuli. We have defense counsel's declaration, but that does not show what

Iuli's state of mind might have been.

       Iuli relies on two cases, among others, to the effect it was an abuse of discretion to

deny the motion where there has been a mistake of fact, People v. McCary (1985) 166

Cal.App.3d 1, 9, and People v. Ramirez (2006) 141 Cal.App.4th 1501, 1506-1508.

Neither case is persuasive on the facts of this case.

       In People v. McCary, supra, 166 Cal.App.3d 1, defense counsel provided

ineffective assistance of counsel in failing to determine the inapplicability of an alleged

enhancement. In People v. Ramirez, supra, 141 Cal.App.4th 1501, the prosecution failed

to turn over exculpatory information. Those cases are not relevant to the analysis in this

case. Here there was full disclosure, but because of the early stage at which the plea

occurred, both sides were seeking more information as to injuries. Such steps were

essential to how both sides would present their sentencing arguments. At base, however,

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there is no doubt that the blow, or blows struck by Iuli caused a broken upper jaw and

injury to the victim's nose, all of which plainly establishes the elements of the offense.

       The trial court carefully reviewed the motion and declaration, which as we have

noted, did not include anything from Iuli. The prosecution's argument based upon the

timing and the probation report was that the motion was "buyer's remorse." The trial

court did not make an express finding on the prosecution's argument, but did clearly state

the defense did not meet its burden of showing good cause by clear and convincing

evidence.

       We are satisfied the trial court did not abuse its discretion in denying the motion to

withdraw the plea.

                                      DISPOSITION

       The judgment is affirmed.



                                                                   HUFFMAN, Acting P. J.

WE CONCUR:



                     O'ROURKE, J.



                      PRAGER, J.*




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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