P. v. Sotello

Filed 4/25/07 P. v. Sotello CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JERRY WAYNE SOTELLO,
Defendant and Appellant.
F050202
(Super. Ct. Nos. 05CM4504 &
05CM4598)
O P I N I O N
THE COURT∗
APPEAL from a judgment of the Superior Court of Kings County. Louis F.
Bissig, Judge.
James F. Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Clayton S.
Tanaka, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant, Jerry Wayne Sotello, pled no contest in case No. 05CM4504 to vehicle
theft (Veh. Code, § 10851, subd. (a)) and admitted allegations that he had a prior
∗Before Vartabedian, A.P.J., Cornell, J., and Kane, J.

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conviction within the meaning of the three strikes law (Pen. Code, § 667, subds.(b)-(i)).
In case No. 05CM4598, Sotello pled no contest to possession of stolen property (Pen.
Code, § 496, subd. (a)) and admitted allegations that he had a prior conviction within the
meaning of the three strikes law. On appeal, Sotello contends the court: 1) violated the
terms of his plea bargain; 2) erred in denying him counsel and a hearing with respect to
his motion to withdraw his plea; and 3) committed Blakely error. We will affirm.
FACTS
On September 21, 2005, someone broke into a vacant apartment in Armona,
California, and took several items that were to be installed in the apartment, including a
bathroom mirror, a vanity, a bathroom towel rack, and a toilet seat. Later that day,
Sotello returned the items to a Home Depot store for an in-store credit voucher.
On October 20, 2005, Kings County Sheriff’s Deputy Scott Ward contacted
Sotello at the Kings County Jail. Sotello told the deputy that the stolen items were given
to him by an unknown Hispanic man who offered him $50 to return them to the Home
Depot store. Sotello believed the property was stolen because the Hispanic man did not
return them himself (case No. 05CM4598).
On October 25, 2005, a Hanford police officer investigating a burglar alarm was
informed by a man that he heard two men talking about “stealing things.” The man left
and returned shortly to tell the police officer that he was approached by a man who
wanted to borrow a crowbar or bolt cutters for a quad (an all terrain vehicle) parked down
the street that he wanted to take.
The officer saw Sotello next to the quad and attempted to contact him. Sotello
ran, but was apprehended and placed under arrest. An examination of the quad disclosed
that the ignition had been removed. The ignition was found on Sotello, who admitted
that he attempted to take the quad (case No. 05CM4504).

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On November 2, 2005, in case No. 05CM4504, Sotello pled guilty to vehicle theft
and admitted the prior strike allegations in exchange for the dismissal of several other
charges and a prior prison term enhancement.
On November 29, 2005, the court conducted a preliminary hearing in case No.
05CM4598.
Sotello’s sentencing in case No. 05CM4504 was scheduled for November 30,
2005. However on that date defense counsel Michael Woodbury informed the court that
Sotello apparently believed that his plea in case No. 05CM4504 resolved case
No. 05CM4598. Defense counsel also asked to be relieved as counsel, stating that he had
a conflict and could not make a motion to withdraw a plea for Sotello because he might
be a necessary witness. Defense counsel further stated that although the resolution of
case No 05CM4598 was not discussed on the record, Sotello was contending that defense
counsel discussed it with him.
The court appointed attorney Brian Gupton to represent Sotello and continued the
hearing until December 13, 2005. On that date, the court arraigned Sotello in case
No. 05CM4598. After doing so, the court noted that case No. 05CM4504 had also been
continued to that date for further proceedings regarding sentencing and a motion to
withdraw the plea. Gupton then advised the court that he had spoken with attorney
Woodbury regarding Sotello’s request to withdraw his plea and he asked the court for a
continuance to discuss the matter with Sotello in order to achieve some type of global
resolution of both cases or possibly to file a motion to withdraw the plea.
On January 4, 2005, attorney Gupton advised the court that he had spoken with
Sotello and reviewed the change of plea transcript and did not see any grounds for a
motion to withdraw the plea. According to Gupton, Sotello wanted to withdraw his plea
because he thought his plea bargain was a global settlement encompassing case No.
0CM4598 and that this was the only colorable grounds for a motion to withdraw the plea.
However, defense counsel further stated that attorney Woodbury was not aware of case

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No. 05CM4598 when Sotello entered his plea in case No. 05CM4504 and because of the
foregoing circumstances he believed that any motion to the withdraw the plea would be
frivolous.
The court then asked Sotello whether he had any basis for withdrawing his plea.
Sotello replied that he thought the plea bargain encompassed case No. 05CM4598
because he was seen by some officers while in custody the morning he entered his plea
and was told that he was going to have a case of burglary and receiving stolen property.
Therefore, when he went to court that day he thought he was going to be arraigned on
those charges. Sotello also told the court that he told attorney Woodbury on November
30, 2005, he wanted to withdraw his plea because Woodbury told Sotello he was facing
10 years, that that was the best deal he was going to get, and Woodbury did not give him
most of the discovery. Sotello also complained that although attorney Gupton asked for a
three-week continuance to speak with Sotello, Gupton had not contacted him until that
morning when he spit in Sotello’s face and yelled at him because Sotello wanted to
withdraw his plea. Sotello also requested new counsel.
The court then conducted a Marsden1 hearing. During the hearing, Sotello
complained that although the court granted attorney Gupton a continuance so he could
communicate with him, he had not done so until that morning and at that time Gupton
screamed at him. Sotello also stated that he pled guilty because attorney Woodbury told
him he could get 10 years, which was more than he could have actually gotten.
Attorney Gupton replied that he reviewed the change of plea transcript and that the
transcript was clear that the consequences of Sotello’s plea were clearly outlined and that
case No. 05CM4504 was the only case discussed. He also stated that in talking to Sotello
the only thing he told Gupton was that he was upset he was getting the maximum time on
case No. 05CM4504 and he could have done just as well if he had gone to trial. Attorney
1 People v. Marsden (1970) 2 Cal.3d 118.

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Sotello reiterated that he did not see any “colorable grounds” for a motion to withdraw
the plea.
At the conclusion of the hearing, the court denied the Marsden Motion. The court
then stated that it agreed with defense counsel’s evaluation and that it too reviewed the
change of plea transcript and did not see anything requiring defense counsel to file a
motion to withdraw the plea.
On January 20, 2006, Sotello entered into a plea bargain providing that in
exchange for Sotello’s guilty plea to possession of stolen property and admission of the
prior strike allegations, the prosecutor agreed to dismiss the prior prison term
enhancement and he would receive a stipulated term of four years, which would run
concurrent to the term he received in case No. 05CM4504.
Sotello’s probation report disclosed that Sotello had four prior felony convictions
and five prior misdemeanor convictions. He also committed many of his offenses while
on felony or misdemeanor probation; he served two prior prison terms; and, he violated
his parole on seven occasions.
On March 14, 2006, the court imposed the aggravated term of three years on
Sotello’s vehicle theft conviction in case No. 05CM4504, doubled to six years because of
Sotello’s prior strike conviction, and a consecutive term of 16 months (one-third the
middle term of two years, i.e., eight months, on his possession of stolen property
conviction in case No. 05CM4598, doubled to 16 months because of Sotello’s strike
conviction). In imposing the upper term on the vehicle theft offense, the court found as
aggravating circumstances that Sotello’s prior convictions were numerous and for violent
offenses, Sotello served a prior prison term, and his performance on probation and parole
had been unsatisfactory. The court also found that Sotello’s early plea in the proceedings
was a mitigating circumstance.

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DISCUSSION
The Consecutive Term
Sotello contends the court violated the terms of his plea bargain with respect to
case No. 05CM4598 when it imposed a consecutive term on his conviction in that case.
Respondent concedes and we agree.
“ ‘When a guilty plea is entered in exchange for specified benefits
such as the dismissal of other counts or an agreed maximum punishment,
both parties, including the state, must abide by the terms of the agreement.
The punishment may not significantly exceed that which the parties agreed
upon. [¶] ‘ “[W]hen a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be fulfilled.” [Citation.]
[¶] The Supreme Court has thus recognized that due process applies not
only to the procedure of accepting the plea [citation], but that the
requirements of due process attach also to implementation of the bargain
itself. It necessarily follows that violation of the bargain by an officer of
the state raises a constitutional right to some remedy.’ [Citations.] . . . ”
(People v. Walker (1991) 54 Cal.3d 1013, 1024.)
Here, although Sotello’s plea bargain in case No. 05CM4598 provided for a
concurrent four-year term on his possession of stolen property conviction in that case, the
court imposed a consecutive 16-month term. Thus, it is clear that the court violated the
terms of Sotello’s plea bargain in that case and we will modify the judgment accordingly.
The Motion to Withdraw the Plea
Sotello contends that the court denied him his federal constitutional right to due
process by its failure to appoint counsel and conduct a hearing with respect to his motion
to withdraw his plea. We disagree.
Penal Code section 1018 permits a plea of guilty to be withdrawn prior to
judgment for good cause shown. It is the defendant’s burden to establish good cause by
clear and convincing evidence. (People v. Wharton (1991) 53 Cal.3d 522, 585.)
“Mistake, ignorance or any other factor overcoming the exercise of free judgment is good
cause for withdrawal of a guilty plea.” (People v. Cruz (1974) 12 Cal.3d 562, 566.)

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However, the defendant’s change of mind, alone, does not constitute good cause for
withdrawal of a guilty plea. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) A
guilty plea should not be set aside lightly, and finality of proceedings should be
encouraged. (People v. Hunt (1985) 174 Cal.App.3d 95, 103.)
The withdrawal of a guilty plea is left to the sound discretion of the trial court.
(People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) Changing one’s mind about
pleading no contest is not good cause for withdrawal of his no contest plea. (People v.
Huricks, supra, 32 Cal.App.4th at p. 1208.) Buyer’s remorse is insufficient to compel a
court to permit withdrawal of a plea. (People v. Knight (1987) 194 Cal.App.3d 337,
344.) A defendant can make a motion to withdraw a plea. (People v. Brown (1986) 179
Cal.App.3d 207.)
In People v. Osorio (1987) 194 Cal.App.3d 183, the defendant expressed a desire
to withdraw his guilty plea. Defense counsel stated he could not “‘in good conscience,’”
file a motion to withdraw the defendant’s plea even though, according to counsel, there
appeared to be favorable grounds for such a motion. (Id. at pp. 186, 188.) The court held
that because there was a “colorable basis” for a motion to the withdraw the plea, the
judgment must be set aside for the limited purpose of permitting the defendant to make
such a motion with counsel’s assistance. (Id. at p. 189.)
In Brown, the defendant pled no contest to several counts of committing lewd acts
upon a child with the use of force. (People v. Brown, supra, 179 Cal.App.3d at pp. 210-
211.) At the sentencing hearing, the defendant's attorney informed the court defendant
wanted to withdraw his plea; however, defense counsel represented there was no legal
basis for such a motion. (Id. at p. 211.) The defendant addressed the court and stated he
was not in the “right frame of mind” at the time of his plea because he had been shaken
up by a death. The trial court even acknowledged that the defendant was emotional at the
time of his plea. The appellate court held defense counsel had a duty to file the plea

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withdrawal motion because it would not have been frivolous or compromised accepted
ethical standards.
Here, Sotello’s statements to the court indicate that he entered his plea in case
No. 05CM4504 under the mistaken belief that it would resolve the charges in case
No. 05CM4598. Sotello claimed his mistake resulted from two police officers meeting
with him in jail to talk to him about the charges in case No. 05CM4504 and from defense
counsel Woodbury’s representation that his plea in case No. 05CM4598 would
encompass both cases. However, attorney Gupton told the court that attorney Woodbury
could not have told Sotello that his negotiated plea in case 05CM4504 encompassed the
charges in case No. 05CM4598 because Woodbury was unaware that charges in that case
had been filed against Sotello. Attorney Gupton further stated that after reviewing the
transcript of the change of plea proceedings and interviewing Sotello and Attorney
Woodbury, he concluded that there was no basis for filing a motion to withdraw plea on
Sotello’s behalf.
In Brown the court stated that “[d]efendant [is] entitled to have the motion [to
withdraw plea] presented by his attorney of record.” (People v. Brown, supra, 179
Cal.App.3d at p. 215.) Sotello appears to interpret this sentence from Brown to require
defense counsel to present a defendant’s motion to withdraw whether or not defense
counsel determines the motion to have merit. Not so. As noted above, the appellate
court in Brown determined that the record there demonstrated that the motion was not
frivolous. Additionally, the Brown court remanded the matter to allow the defendant to
make a motion to withdraw his plea with the caveat that should defense counsel refuse to
present the motion, the court should conduct a Marsden hearing to determine the basis of
the conflict and whether to appoint substitute counsel to present the motion. (Id. at p.
216.)
In contrast, here, defense counsel determined after investigating the grounds for a
motion to withdraw plea that there were no grounds for such a motion. Further, in Brown

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the court specifically stated that it did not mean to “suggest that counsel is compelled to
make a motion which, in counsel’s good faith opinion, is frivolous or when to do so
would compromise accepted ethical standards. [Citations.]” (Id. at p. 216.)
Additionally, in contrast to Brown, the court here conducted a Marsden hearing in
response to Sotello’s request for appointment of new counsel, where it allowed Sotello to
air his complaints against defense counsel, none of which it found warranted the
appointment of new counsel. Moreover, as noted by Brown, “It was improper to permit
defendant to bring his motion in pro. per. while he was still represented by counsel and he
had not waived his right to counsel. [Citation.]” (Id. at pp. 214-215.) Accordingly, we
reject Sotello’s contention that the court erred when it denied his motion to withdraw his
plea.
The Blakely Issue
In sentencing Sotello in case No. 05CM4598 to the aggravated term of three years
on his vehicle theft conviction, the court stated, “ . . . the circumstances in aggravation
include a consideration of the defendant’s extensive record and violent offenses. He has
a history of prior prison commitment and a history of violations of probation and parole.”
Relying on United States v. Booker (2005) 543 U.S. 220, Blakely v. Washington (2004)
542 U.S. 296 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi),
Sotello contends the trial court violated his Sixth Amendment right to trial by jury by
imposing the upper term based on factors not admitted by him or found to be true by the
jury beyond a reasonable doubt.
Prior to Sotello’s sentencing, the California Supreme Court undertook an
extensive analysis of these cases and concluded that the imposition of an upper term
sentence, as provided under California law, was constitutional. (People v. Black (2005)
35 Cal.4th 1238, 1244, 1254, 1261 (Black).) Recently, however, the United States
Supreme Court overruled Black in part and held that California’s determinate sentencing
law “violates Apprendi’s bright line rule: Except for a prior conviction, ‘any fact that

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increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.’ ” (Cunningham v.
California (2007) 549 U.S. ___ [127 S.Ct. 856, 2007] (Cunningham).) The middle term
prescribed under California law, not the upper term, is the relevant statutory maximum.
(Ibid.)
Here, the court found an aggravating factor based on Sotello’s numerous
convictions and juvenile adjudications, which included four prior felony convictions and
five misdemeanor convictions. Further, although the court found that Sotello’s early plea
in this matter was a mitigating circumstance, the mitigating effect of this circumstance
was minimal because in exchange for his plea, he received a substantial benefit when the
court dismissed two felony counts, three misdemeanor counts and a prior prison term
enhancement. Thus, in view of the minimal mitigation in the instant case and the
strength of the multiplicity of convictions factor, which the court could properly consider
under Cunningham, we need not decide whether the court’s reliance on factors in
addition to Sotello’s prior convictions constituted error under Blakely or Cunningham.
Any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386
U.S. 18, 24.)
DISPOSITION
The judgment is modified as follows: the consecutive 16-month term imposed on
Sotello’s conviction for possession of stolen property in case No. 05CM4598 is converted
to a four-year concurrent term as provided for in Sotello’s plea agreement in that case.
The trial court is directed to prepare an abstract of judgment consistent with this opinion
and to forward a certified copy to the Department of Corrections and Rehabilitation. As
modified, the judgment is affirmed.

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