Filed 12/18/19 P. v. Carraway CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

LAVON CARRAWAY,

Defendant and Appellant.

A157156

(San Francisco County

Super. Ct. Nos. 13011337/15007700)

Lavon Carraway appeals from an order denying the second of two motions to withdraw his guilty plea. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, 441-442. Our independent review of the record reveals no arguable issues, and we affirm.

BACKGROUND

Carraway was charged by information (case number 15007700) with two felony counts allegedly arising from a March 2015 fight: assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)), and battery with serious bodily injury (id., § 243, subd. (d)). The information also charged, as enhancement allegations on the first count, that Carraway inflicted great bodily injury (§ 12022.7, subd. (a)) and committed a felony while released on bail on other felony charges (§ 12022.1, subd. (b)).

At the time, Carraway had another criminal case pending (case number 13011337), involving five felony charges: mayhem (§ 203); two counts of assault with a deadly weapon (a knife; § 245, subd. (a)(1)); and two counts of battery with serious bodily injury (§ 243, subd. (d)). The trial court consolidated the two cases along with another pending case (12022458).

In exchange for dismissal of the remaining counts (in all three cases) and a grant of probation, Carraway pled guilty to the March 2015 assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)) and to a reduced misdemeanor count of assault with a deadly weapon (§ 245, subd. (a)(1)) in connection with case number 13011337. With respect to the felony count, he also admitted a great bodily injury enhancement allegation (§ 12022.7, subd. (a)). The negotiated sentence provided that the People would not object to early termination of probation, reduction of the felony to a misdemeanor, and expungement (eliminating the strike) if Carraway avoided probation violations and moved out of San Francisco.

The stipulated factual basis for the plea was that, in March 2015, Carraway punched a man in the head, causing the victim to suffer a brain injury when he struck his head on the sidewalk. With respect to the admitted misdemeanor assault, Carraway stabbed another victim during a fight in April 2013.

At the change of plea hearing, the trial court took an oral waiver of rights after Carraway was admonished by counsel on the record. Initially, when defense counsel advised Carraway regarding the consequences of pleading to a strike, Carraway indicated confusion regarding the terms of the bargain. The trial court stated it would take the matter off calendar and the parties could continue to try to work out a deal before trial. Carraway then had an opportunity to discuss the matter with defense counsel and stated that he wished to proceed with his change of plea. The trial court asked Carraway if he understood each of the terms and conditions. Carraway answered, “Yes.” He also affirmed that he was freely and voluntarily entering into the plea agreement, under no threat or pressure. Finally, he specifically acknowledged understanding that the great bodily injury enhancement he was admitting made his felony conviction a strike and stated he understood the consequences for any future convictions. In accepting Carraway’s pleas, the trial court explicitly found, “[Carraway] has voluntarily and intelligently waived [his constitutional] rights, and has entered his guilty plea while knowing the consequences of that plea.”

Three months later (two days before his scheduled sentencing), Carraway moved to withdraw his plea, asserting his innocence and that he pled guilty involuntarily. The trial court found Carraway had not shown good cause and denied the motion. The trial court suspended imposition of sentence and placed Carraway on three years’ probation with conditions including a 15-day jail term with 15 days’ credit for time served. As agreed, Carraway would have the opportunity to reduce his probationary term to two years, reduce his felony conviction to a misdemeanor (with the strike enhancement stricken), and petition the court for expungement if he avoided probation violations and relocated.

However, in the three months intervening between his change of plea and September 2018 sentencing, Carraway had been arrested, in August 2018, and released pending further investigation. He was ultimately charged, in December 2018, with several new felonies. His probation was summarily revoked and he was remanded into custody.

Carraway retained new counsel and filed a second motion to withdraw his plea, asserting ineffective assistance of counsel. In particular, Carraway contended that, due to the possibility he would suffer new charges arising out of the August incident and would then have a strike on his record, his retained lawyer should have moved to continue the September 2018 sentencing hearing or filed an earlier motion to withdraw his plea. He later supplemented his motion, maintaining his plea had not been knowing and voluntary because he did not understand the consequences of pleading guilty to a strike. The People opposed his motion.

Concluding Carraway had not shown good cause to vacate his plea, the court denied the motion. Carraway obtained a certificate of probable cause to challenge the denial.

DISCUSSION

Carraway’s appellate counsel advised Carraway, as required by People v. Kelly (2006) 40 Cal.4th 106, 124, of his right to file a supplemental brief to bring to this court’s attention any issue he believes deserves review. Carraway has not filed a brief. We have reviewed the entire record and identified no arguable issues.

“ ‘Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.’ ” (People v. Weaver (2004) 118 Cal.App.4th 131, 146.) The trial court may permit a defendant to withdraw a guilty or no contest plea “before judgment or within six months after an order granting probation is made if entry of judgment is suspended” on a showing of good cause by clear and convincing evidence. (§ 1018; Weaver, supra, at p. 145-146.) “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.” (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)

The trial court did not abuse its discretion in denying Carraway’s motion to withdraw his plea. (See People v. Alexander (2015) 233 Cal.App.4th 313, 318.) The record of Carraway’s change of plea colloquy contradicts his assertion his guilty pleas were not knowing and voluntary. The record also does not support Carraway’s claim of ineffective assistance of counsel. Carraway’s counsel was not asked to defend her actions, but it cannot reasonably be argued there could be no satisfactory explanation. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Buyer’s remorse is insufficient to establish good cause. (See People v. Simmons (2015) 233 Cal.App.4th 1458, 1466.)

DISPOSITION

The order denying Carraway’s motion to withdraw his plea is affirmed.

 

_________________________

BURNS, J.

WE CONCUR:

_________________________

JONES, P. J.

_________________________

SIMONS, J.

A157156