Filed 2/3/16 P. v. Wright 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                                                  NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for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

                                                            (Sacramento)

                                                                    ----




THE PEOPLE,                                                                                               C076608

                     Plaintiff and Respondent,                                                (Super. Ct. No. 13F02971)

          v.

ART SAM WRIGHT,

                     Defendant and Appellant.




          Defendant Art Sam Wright entered a negotiated plea of no contest to three counts
of lewd and lascivious conduct with a child under the age of 14 years (Pen. Code, § 288,
subd. (a); unless otherwise set forth, statutory section references that follow are to the
Penal Code; counts 1, 4, and 6) in exchange for dismissal of the remaining counts and a
stipulated sentence of 12 years in prison. After denying defendant’s motion to withdraw
his plea, the court sentenced defendant accordingly.
          Having obtained a certificate of probable cause (§ 1237.5), defendant appeals
contending the trial court abused its discretion in denying his motion to withdraw his
plea. We will reject this contention. Defendant also contends that the trial court erred in



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imposing a $280 restitution fine and the corresponding parole revocation restitution fine
(parole fine). We will remand to the trial court so that it may impose the minimum fines.

                                           FACTS

       Between October 1, 2011 and October 1, 2012, defendant fondled the vagina of
the 11-to-12-year-old victim on two separate occasions and caused her to touch his penis
on another occasion.

                                        DISCUSSION

                                              I

                                 Motion to Withdraw Plea

       Defendant contends the trial court erred in denying his motion to withdraw his no
contest plea, claiming he was not privy to certain discovery and that had he known of
exculpatory evidence, he would not have entered his plea. We conclude that the trial
court did not abuse its discretion in denying defendant’s motion.
       We note that the trial court sealed the materials filed in connection with the motion
to withdraw the plea, including briefs and exhibits. This court granted the parties’
respective motions to file briefs not under seal and to cite the sealed materials in their
briefs without identifying the persons for whom the sealing was intended to protect.
       When defendant entered his plea to three out of 12 counts of lewd and lascivious
conduct involving two victims in exchange for a stipulated sentence of 12 years in prison
and dismissal of the remaining counts, defendant stated that he understood that he would
be unable to withdraw his plea absent sufficient legal cause to do so. He also stated that
he had had time to discuss any legal defenses with his attorney.
       After entering his plea, defendant retained new counsel and sought to withdraw his
plea, claiming his first attorney had failed to inform him of potential defenses and he
entered his plea under the mistaken belief that the plea offer was beneficial. Defendant



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claimed he had no choice but to enter his plea given the potential of a life sentence and
the lack of defenses to the crimes. He also complained that his first attorney had failed to
appear at more than one scheduled meeting at the jail. After retaining new counsel,
defendant claimed he was first informed of evidence in the police reports implicating the
father of one of the victims as having molested her and evidence of a connection between
the families of his accusers. Defendant also claimed that his first attorney had failed to
provide him an opportunity to review the interviews of the victims and the pretext calls
between him and the mother of one of the victims. Had he known of the foregoing,
defendant claimed he would not have entered his no contest plea.
          In opposition, the People argued defendant offered mere speculation and
conjecture about inconsistent theories. The People claimed defendant likely knew about
allegations against one of the victim’s fathers, his assertion about potential defenses
lacked merit, and that the pretext calls were more incriminating than exculpatory.
          Later, the People filed the declaration of Diane Howard, defendant’s first attorney,
who stated that she had visited with defendant on three occasions. On the first visit,
Howard read the detailed summary of the detective’s report to defendant. At that time,
defendant acknowledged the ties between the families of the two victims and mentioned
that the father of one of defendant’s victims had committed suicide presumably because
of allegations the father had sexually abused one of defendant’s victims and her sister and
friends. During that same visit, defendant asked Howard to obtain an offer of single
digits.
          On the second visit, Howard stated that she reviewed the written discovery that
had been provided with defendant and that they discussed possible defenses, potential
motives regarding false claims, credibility issues, and the damning nature of the pretext
calls. Defendant explained he had not denied the allegations during the pretext calls
because he had previously talked about the claims many times. On the third visit, prior to
defendant entering his plea, Howard stated that she asked defendant if he wanted to “fight

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the case or not” and defendant responded that he wanted to accept the People’s offer.
She discussed with defendant his potential exposure of life based on the charges and
multiple victims. Since defendant had requested an offer to resolve the case, Howard had
decided not to interview witnesses.
       In denying defendant’s motion to withdraw his plea, the court determined that
defendant had not shown good cause by clear and convincing evidence. To the extent it
was implied that Howard had provided ineffective assistance, the court determined that
there was no evidence of ineffective assistance.
       Section 1018 provides in relevant part that on the 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 . . . . This section shall be
liberally construed to effect these objects and to promote justice.” A plea of no contest is
considered the same as a plea of guilty. (§ 1016, para. 3.)
       Even though section 1018 provides for liberal construction, case law establishes a
strict standard for allowing the withdrawal of a guilty plea. “ ‘Guilty pleas resulting from
a bargain should not be set aside lightly and finality of proceedings should be
encouraged.’ [Citation.]” (People v. Weaver (2004) 118 Cal.App.4th 131, 146; People v.
Hunt (1985) 174 Cal.App.3d 95, 103; People v. Urfer (1979) 94 Cal.App.3d 887, 893, fn.
6.) In order to succeed on a motion to withdraw his plea, a defendant has the “burden to
produce evidence of good cause by clear and convincing evidence. [Citation.]” (People
v. Wharton (1991) 53 Cal.3d 522, 585.) To establish good cause, a defendant must show
that his plea was not the product of his free judgment. “Mistake, ignorance or any other
factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty
plea. [Citations.]” (People v. Cruz (1974) 12 Cal.3d 562, 566.)
       We review a trial court’s denial of a motion to withdraw a guilty plea for abuse of
discretion (People v. Holmes (2004) 32 Cal.4th 432, 442-443) and will reverse only if the
trial court’s “determination is arbitrary or capricious or ‘ “exceeds the bounds of reason,

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all of the circumstances being considered.” ’ ” (People v. Welch (1993) 5 Cal.4th 228,
234.)
        Defendant contends the facts here are similar to those in People v. Ramirez (2006)
141 Cal.App.4th 1501 (Ramirez). In Ramirez, a supplemental police report withheld by
the prosecutor contained statements from witnesses that the defendant was not present
when a carjacking occurred and suggested the defendant was an unwilling passenger in
the car chased by the police. (Id. at pp. 1504-1505.) Without being privy to the
supplemental report, the defendant pled no contest to armed robbery and evading police
in exchange for dismissal of unlawful driving and two counts of carjacking. (Id. at
pp. 1503-1504.) Prior to sentencing the defendant learned of the supplemental report and
sought to withdraw his plea but the trial court denied the motion. (Id. at pp. 1504-1505.)
Ramirez reversed, concluding the trial court abused its discretion in denying the
defendant’s motion to withdraw his plea since the defendant’s ignorance of the report
materially affected his decision to enter his plea in that the report “identified new defense
witnesses, potentially reduced [the defendant’s] custody exposure, and provided possible
defenses to several charges, thereby casting the case against him in an entirely different
light.” (Id. at pp. 1507-1508.)
        Ramirez is distinguishable. Here, defendant did not claim that discovery had been
withheld by the prosecutor, knowledge of which would have materially affected
defendant’s decision to enter his plea. Instead, defendant claimed that Howard did not
share with him the discovery which had been provided. Howard rebutted defendant’s
self-serving claims that he was unaware of allegations of sexual abuse by the father of
one of defendant’s victims and that he was unaware of the connection between the
families of his victims. Howard stated that during her first meeting with defendant,
defendant mentioned that the father had committed suicide, that defendant believed that
the father did so because of allegations against him (the father) of sexual abuse by the
victim, her sister and friends, and that defendant was aware of the ties between the

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families of the two victims. Howard also rebutted defendant’s claims about discovery
and defenses. Howard stated that the written discovery provided by the prosecutor had
been reviewed with defendant as well as the pretext calls and that she discussed with
defendant possible motives for false claims, credibility issues, possible defenses, and the
damning nature of the pretext calls. Howard stated that defendant wanted an offer in the
single digits. At the next visit, defendant wanted to accept the offer of 12 years, which
was significantly less than his potential exposure rather than go to trial.
       In denying defendant’s motion, the trial court in effect determined that Howard’s
declaration, not defendant’s declaration, was credible. The trial court’s credibility
determination is entitled to deference and is justified by the record. (People v. Fairbank
(1997) 16 Cal.4th 1223, 1254; People v. Nocelotl (2012) 211 Cal.App.4th 1091, 1097-
1098.) Defendant has failed to demonstrate that the trial court abused its discretion in
denying his motion to withdraw his plea.

                                              II

                                            Fines

       Defendant next contends that the trial court’s imposition of a $280 restitution fine
and corresponding parole fine was unauthorized and violated his ex post facto protections
and due process rights. He asserts that the trial court intended to impose the statutory
minimum in effect at the time of his offenses but mistakenly believed it was $280. He
also argues that the trial court was unaware it had the authority to impose a fine in an
amount less than $280, suggesting the court misunderstood its sentencing discretion. The
People respond that defendant’s challenge to the fines is forfeited by his failure to object
in the trial court. We conclude that the trial court intended to impose the minimum fines
but erroneously believed it to be $280. We will remand to the trial court for it to impose
the minimum fine.




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       At the time of defendant’s offenses (between October 1, 2011 and October 1,
2012), the permissible range of the fine was $200 to $10,000 in 2011 (Stats. 2010,
ch. 351, § 9, eff. Sept. 27, 2010) and $240 to $10,000 beginning on January 1, 2012
(Stats. 2011, ch. 358, § 1). The probation report recommended: a $2,400 restitution fine
and the same amount for the corresponding parole fine. At sentencing, citing defendant’s
lack of resources, defense counsel requested the restitution fine be the “statutory
minimum” of “$400” or “whatever amount the minimum is” and requested any
discretionary fees and fines be stricken. The trial court stated that it intended “to impose
only the minimum mandatory fines and fees.” Later, the trial court imposed the
“minimum restitution fine of $280” and the same for the parole fine without objection
from defense counsel.
       Had defendant objected, the trial court could have corrected any misunderstanding
about the discretionary amount of the fine. “Although the court is required to impose
sentence in a lawful manner, counsel is charged with understanding, advocating, and
clarifying permissible sentencing choices at the hearing. Routine defects in the court’s
statement of reasons are easily prevented and corrected if called to the court’s attention.”
(People v. Scott (1994) 9 Cal.4th 331, 353.)
       To establish ineffective assistance of counsel, a defendant must show (1) counsel’s
performance was below an objective standard of reasonableness under prevailing
professional norms, and (2) the deficient performance prejudiced defendant.
(Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 [80 L.Ed.2d 674]; People
v. Ledesma (1987) 43 Cal.3d 171, 216-217.) To show prejudice, defendant must show a
reasonable probability that he would have received a more favorable result had counsel’s
performance not been deficient. (Strickland, at pp. 693-694; Ledesma, at pp. 217-218.)
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (Strickland, at p. 694; accord, Ledesma, at p. 218.) Confidence in the
outcome has been undermined here.

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       Under prevailing professional norms, a competent defense counsel should have
known the minimum restitution fine was $200 in 2011 and $240 in 2012. (People v.
Martinez (2014) 226 Cal.App.4th 1169, 1190; see also People v. Scott, supra, 9 Cal.4th at
p. 351 [“defense attorney who fails to adequately understand the available sentencing
alternatives, promote their proper application, or pursue the most advantageous
disposition for his client may be found incompetent”]; People v. Le (2006)
136 Cal.App.4th 925, 936 [counsel ineffective in failing to object to fine calculation].)
       Here, defense counsel affirmatively requested the “statutory minimum” restitution
fine of “$400” or “whatever amount the minimum is” when the actual minimum was
$200 in 2011 and $240 in 2012. Although defense counsel may have been thinking in
terms of a restitution fine and a parole revocation restitution fine in the minimum amount
of $200 each, counsel did not object when the court imposed the fine it did which was
beyond that which was authorized. There was a reasonable probability, in fact,
practically a certainty the trial court would have imposed the minimum restitution fine of
$200 or $240 but for defense counsel’s error.
       Moreover, the record on its face reflects that the trial court misunderstood its
discretion. The trial court granted defense counsel’s request and imposed the “minimum”
$280 fine, thereby rejecting the probation department’s recommendation that the court
impose a $2,400 fine. The court intended to exercise its discretion and impose the
statutory minimum but mistakenly believed it was $280, thereby failing to exercise
informed discretion. (See People v. Deloza (1998) 18 Cal.4th 585, 599-600; People v.
Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 [“Defendants are entitled to sentencing
decisions made in the exercise of the ‘informed discretion’ of the sentencing court”].)
We will remand the matter to the trial court in order for it to reconsider the amounts of
the restitution fine and the parole revocation restitution fine.




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                                      DISPOSITION

      The matter is remanded to the trial court in order for it to impose restitution and
parole revocation restitution fines as appropriate. The judgment is otherwise affirmed.



                                                       HULL                   , J.



We concur:



      RAYE                 , P. J.



      BUTZ                 , J.




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