Filed 8/20/14 P. v. Jackson CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,
Plaintiff and Respondent,

v.
LONDRA DEMORE JACKSON,
Defendant and Appellant. B245779
(Los Angeles County Super. Ct. No. BA356428)

APPEAL from a judgment of the Superior Court of Los Angeles County, Anne H. Egerton and Barbara R. Johnson, Judges. Reversed and remanded. Angelyn Gates for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant A ttorney General, Shawn McGahey Webb, and Ryan M. Smith, Deputy Attorneys Gene ral, for Plaintiff and Respondent.

_____________ _____________2 Londra Demore Jackson appeals fro m the judgment entered following his no contest plea to first degree residential bur glary and admission he had suffered a prior serious or violent felony conviction within the meaning of the thre e strikes law and had served a prior prison term fo r a felony. Jackson contends he should have been permitted to withdraw his plea before sentence was imposed pursuant to Penal Code section 1018 1 because the trial court and his privately reta ined counsel had coerced him to plead and
someone else had confessed to the crime afte r his plea was entered. We reverse and remand for a new hearing on Jacks on’s motion to withdraw his plea.
FACTUAL AND PROCED URAL BACKGROUND
1. The Preliminary Hearing Los Angeles Police Officer Luis Bonilla te stified he interviewed Michael Turner, the victim of a residential burglary, on April 24, 2009 at Turner’s house. Turner reported he had left home that day at 3:30 p.m., re turning an hour later to discover it had been
ransacked. Several items were missing, including money and a nine-millimeter handgun. When Officer Bonilla arrived at approxim ately 4:30 p.m., he saw Jackson walking down a driveway just east of Turner’s house. Jackson turned toward the patrol car and appeared startled or nervous. He then turned away and walked through the front yard of another home and quickly down the driveway. As Bonilla got out of his car, Jackson
walked toward the rear of a truck parked in the driveway and appeared to discard something. He then began ru nning. Bonilla pursued Jackson but lost sight of him after he jumped over a wall. Bonilla and his part ner requested backup un its and a helicopter.
Officer Monterosso arrived and was told to investigate the area near the truck where Jackson had appeared to discard something. Montero sso found a pair of gloves and a nine-millimeter handgun. 2 The officers’ onboard comput er identified Turner as the gun’s owner, and it was returned to him. A K-9 dog found Jackson hiding under a vehicle in the driveway of a near by home on South Halldale Avenue.

1 Statutory references are to the Penal Code.
2 Bonilla believed another officer re covered two $100 bills and a $10 bill.3 Thelma Parham testified sh e discovered Jackson in a back room of her home on South Halldale Avenue at approximately 4:00 or 4:30 p.m on April 24, 2009. After she demanded an explanation, Jackson said the window was open and, “‘They’re shooting at
me.’” Parham ordered Jackson to leave.
2. The Information; Jackson’s Failure To Appear; the Amended Information Jackson was charged in an information filed April 27, 2010 with residential burglary (§ 459), possession of a firearm by a felon (former § 12021, subd. (a)(1), now § 29800, subd. (a)), misdemeanor aggravat ed trespass (§ 602.5, subd. (b)) and misdemeanor resisting a peace officer (§ 14 8, subd. (a)(1)). The information specially alleged Jackson had suffered tw o prior serious or violent fe lony convictions for robbery and burglary within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had previous ly served four separate prio r prison terms for felonies (§ 667.5, subd. (b)). Jackso n pleaded not guilty and denied the special allegations. On July 9, 2010 th e trial court denied Jackson’s section 995 motion to dismiss the burglary and possession of a firearm charges. Jackson was ordered to appear on August 6, 2010 for a pretrial conference. After Jackson failed to appear, the trial court
ordered his bond forfeited a nd bail revoked and issued a bench warrant. At a bench warrant hearing on December 17, 2010 the co urt was informed Jack son had been taken into custody. Bail was set at $3,000,000, and the ma tter scheduled for hearing. At the December 20, 2010 hearing Christopher Dard en substituted in as privately retained
counsel for Jackson. An amended information was filed May 18, 2011 adding the special allegation Jackson had suffered two prio r serious or violent felony convictions for robbery and burglary within the meaning of section 667, subdivision (a)(1). Ja ckson again pleaded not guilty and denied th e special allegations.
3. Jackson’s No Contest Plea

a. Rejection of the 15-year deal On Friday, May 27, 2011 the matter was called for trial. Jackson, who was facing a 25-year-to-life sentence as a third strike offender if convicted on all charges, was4 offered a plea deal of 15 years in state pris on. The court stated, “I know Mr. Darden has been talking to you for a long time. I do not need to tell you, he’s a very experienced criminal defense attorney and before that, a ve ry successful district attorney for a lot of years. . . . You can roll th e dice and go to trial—and I have not heard any evidence, I’m not prejudging anything—but it’s my job to tell you that if you get convicted, you’re looking at a life sentence with a minimum eligib le parole date of at least 25. I would encourage you to really consid er their offer of 15, which, to my understanding, because it’s a serious one, a violent felony, you would . . . do about 80 percent of that time.”
Jackson asked for time to think about the of fer and discuss it with his family. He explained he did not think Dard en, who had been too busy to talk to him, was prepared for trial and they were “having a conflict” ab out his defense. Jackson also said he was overwhelmed by having learned his daughter was comatose in the hospital and had been “begging” to see her.
Darden informed the court he was “absolutely ready” and had “read every page of everything”: “I know exactly what I want to do. I have my motions in limine; I have a motion to strike his strike; I have a motion to bifurcate his priors; and God knows how many jury trials I’ve done. I’m ready to go. I understand the evidence code and exactly
what the issues are in this cas e.” Darden also explained he had tried to get a better offer, but the nature of the case had changed: Until the previous day the People had been unable to confirm the victim’s willingness to tes tify. Darden said, “I would not risk my son’s or brother’s life given the evidence as I know it and understand it in a case like this.
I would tell them to take the 15. I’ve told Mr. Jackson he should take the 15.”
Jackson asked to continue the case until the following Tuesday (the next court day). The court denied the request: “I know you feel pressed, but the case is two years old. It is in part old because you absented yourself from the court’s processes. Today is
the 13th date that I’ve had this case here for tria l. . . . We have had pretrial after pretrial after pretrial, and I’m confident Mr. Darden is ready. The People are certainly ready. They’ve subpoenaed numerous witnesses and I’ve been assigned to start the trial today by my supervising judge. So if you would lik e to talk to Mr. Dard en some more in the5 back, or you can talk to hi m right here and [the Prosecu tor] and I will get up and go somewhere else together.” Darden then aske d, “Mr. Jackson, would he be allowed to go see his daughter now at the hospital?” The c ourt replied, “Well, I’m happy to sign the order. I’ve signed it again. I’m happy to call whatever supervisors I can call at the sheriff’s department to try to make it happen. ” The court later cauti oned, “I really think he should be making this decision independen t of the situation with his daughter. I do
not want to have some issue down the road that there was some kind of duress.”
After further discussion about whether J ackson might be given a bail reduction or a 30-day release on his own recognizance so he could visit his daug hter, notwithstanding he had previously failed to appe ar as ordered, the court reite rated, “I think he needs to make a judgment about the risk of going to tr ial versus the People’s offer independently of this very sad situation with his daughter, because they’re se parate issues and I think he needs to evaluate the 15-year offer and make a judgment on that just based on the risk of going to trial versus the offer.” Immediately thereafter Jackson declined the offer. When the People emphasized the offer would not be available on Tuesday wh en jury selection began, Jackson asked for “something under 10” and told the court he did not know what to do. After more colloquy, with Jackson asking for a better deal or to postpone the decision until Tuesday and refusing to confirm whether he would acc ept the plea deal, the court and attorneys began discussing pretrial matte rs until the proceedings were adjourned for the day.
b. Acceptance of the 17-year deal At the outset of the proceedings on Tuesday, May 31, 2011, Jackson asked whether he could “still” have until 1:30 p.m. to decide to take the 15-year plea deal. After the prosecutor said that deal was no longer available, the court adjourned the proceedings until 1:30 p.m., stating jury selec tion would begin if the People did not make a new offer. When proceedings resumed, the People had made a 17-year offer but
Jackson asked to address the court. Jackson co mplained he continued to have issues with Darden. According to Jackson, Darden had called him a “stupid-ass nigger” because he “was not too smart for not taking this deal” and Darden had failed to retest the gloves6 found at the crime scene, which had Jacks on’s DNA on them, as Jack son had requested. Jackson further explained, “Before I take th e deal, Your Honor—I’m just feeling like I’m almost forced into taking it because I haven’ t had a proper defense counsel in this. I don’t have no choice. If I go to trial, he’s guaranteeing me I’ll lose, so how do I go to trial with confidence [in] my attorn ey? He has no confidence in me.”
After the court observed Jacks on appeared to be seeking to delay the matter and indicated trial would proceed, Darden aske d to withdraw as counsel because Jackson suggested he had committed misconduct or ha d otherwise been ineffective. The court denied the request. Following protracted colloquy during which Ja ckson requested the 15-year plea deal, he accepted a 17-year offer to plead guilty to residential burglary and admit one prior conviction as a strike an d within the meaning of section 667, subdivision (b). Jackson, however, was unc ooperative while the People and the court were advising him of his rights and the nature and consequences of his proposed plea and ensuring his plea and waivers were voluntary , knowing and intelligent. For example,
when the court asked Jackson whether he und erstood he had the right to a trial, he replied, “Yes, I do, your Hono r, but I thought I had the right to a fair trial and I’m not understanding.” Jackson finally cooperated after the court told him several times the jurors would be brought in if he continue d to equivocate. The court found he had voluntarily, knowingly and inte lligently waived his constituti onal rights and entered his plea. A sentencing hearing was set for June 30, 2011.
4. Darence Atkin’s Confession; Jackson’s Efforts to Withdraw His Plea; the Transfer of the Case Sentencing was continued first to August 30, 2011 and then to October 6, 2011 at defense counsel’s request. On September 19, 2011 defense counsel was provided with a police report describing an interview with Darence Atkins, 3 who had walked into the police station on August 9, 2011 and confessed to committing the burglary of Turner’s home with a friend (not Jacks on). The detective who interv iewed Atkins did not find him

3 Darence Atkins’s name is spelled differently through out the record. We use the spelling on the signature line of his declaration.7 credible. On September 29, 2011 Jackson moved to compel production of the audio recording of the interview, wh ich the trial court granted. On October 20, 2011, after several mo re continuances, Jackson moved to withdraw his plea, arguing it was not knowin gly and intelligently made because he had not known of all the potentially meritorious defenses available. On December 7, 2011
Jackson filed a declaration from Atkins in su pport of the motion. Atkins declared he
came forward because he had learned Jackso n was being sent to prison for the crime
Atkins had committed and he wa nted to clear his conscien ce. He described how he committed the crime, including writing nota tions on several photogr aphs of the crime
scene that were attached to his declaration. Atkins stated he did not recall ever seeing
Jackson and had not received an y threats, benefits or pr omises in connection with providing his declaration. Atkins was present at the December 7, 2011 sentencing hearing, as he had been at several of the prior sentencing hearings, in case the People wanted to interview him. The prosecutor declined to do so. The court then explained its tentative decision to deny Jackson’s motion to withdraw his plea w ithout hearing testimony from Atkins, whose credibility the court questioned. After hear ing argument, including defense counsel’s suggestion “people, perhaps, r eceive stolen property all the time” and assertion there was no evidence placing Jackson inside Turner’s hom e, the court agreed to continue the case until December 12, 2011 to hear testimony from Atkins. On December 9, 2011 Darden filed a supplement to Jackson’s motion to wi thdraw his plea in which he explained his belief Jackson may be innocent and, under a ll the circumstances including his daughter’s condition, may have been coerced to enter a no contest plea, whic h Darden would not
have recommended if he had known of Atkins. The hearing on Jackson’s mo tion was repeatedly continued. In early January the
court was informed Atkins had been taken into custody in connection with another incident. By the February 9, 2012 hearing, Atkins had been released but could not be
found.8 In mid-April 2012 Jackson petitioned for a wr it of habeas corpus after the People had argued in opposition to his motion to withdraw his plea that newly discovered evidence may be grounds for a writ petition, bu t not a motion to withdraw a plea under section 1018. At the May 17, 2012 hearing th e court asked Jackson if he wanted counsel appointed because his petition raised questions about Darden’s representation. Jackson responded he would retain a lawyer to c onsult with him whether Darden should be replaced. The court c ontinued the matter a nd indicated it would also determine if the
matter should be transferred to another judge to hear the pe tition: “I’m kind of a witness to all this, too, so maybe I sh ouldn’t even be hearing it.” At the June 8, 2012 hearing Darden was relieved as counsel of record. The writ petition was withdrawn at the request of Ja ckson’s new attorney to give him an opportunity to review the ma tter. Sentencing was continued until July 25, 2012 and then
four additional times un til October 15, 2012. On October 10, 2012 Jackson again m oved to withdraw his plea pursuant to section 1018, arguing four factors had overcom e his ability to exerci se free judgment in deciding to plead no contest: Conflict with and mistrust of counsel; judicial duress; emotional distress; and ignorance of ex isting evidence (new evidence). Jackson requested another bench officer be assigned to hear the motion if the court was not willing to grant it without a hearing.
5. Denial of Jackson’s Motion to Withdraw His Plea On October 31, 2012 the matter was tran sferred from Judge An ne H. Egerton to Judge Barbara R. Johnson. At the outset of the December 7, 2012 he aring on the motion, the court expressed its tentative view Jacks on had not been subjecte d to duress when he entered his plea and suggested argument be direct ed to the effect of Atkins’s confession. The prosecutor argued Atkins was not credib le and the People would be prejudiced if Jackson was permitted to withdr aw his plea because Turner ha d been a difficult witness, only agreeing to cooperate when he thought he would be held in contempt of court if he
did not.9 Defense counsel argued the mere existenc e of Atkins’s confession entitled Jackson to withdraw his plea and it was not the trial c ourt’s role to determine whether Atkins was credible. Stressing Jackson’s daughter’s po or health, the breakdown in communication between Jackson and Darden and pressure from the trial court, defense counsel
maintained it would be a misca rriage of justice not to allow Jackson to withdraw his plea and go to trial. The trial court rejected Jackson’s argument it was not the court’s role to determine the credibility of the new ev idence, likening the procee ding to a hearing on a writ petition. The court then stated, “There’s no declaration from anybody except for the police report, and that’s not a declaration of anything about this case.” The prosecutor corrected the court, indicati ng he believed Atkins’s declar ation had been submitted; and
defense counsel said he remembered there was a declaration from someone, but did not
recall if it was from Darden. Th e court checked the file, but only found the police report, which the prosecutor then said might be wh at he was remembering. Defense counsel apparently checked as well, stating, “Y our Honor, I don’t see a declaration from
Mr. Atkins. I believe there was a declaration from Mr. Darden about the
information . . . .” The trial court denied Jackson’s motion, finding none of th e facts purporting to
show duress constituted clear a nd convincing evidence supportin g withdrawal of his plea. With respect to Atkins’s confession the court found, “I don’t think that the new evidence has been shown. There’s a police report. There’s apparently a declaration somewhere from Mr. Darden. I read the police report . . . . But, I think after a trial, after a plea[] . . . that I need to consider the veracity of the person who’s claiming this new evidence, whether it’s by a plea or by a trial.”10 DISCUSSION
1. Governing Law A defendant may move to set aside a gu ilty or no contest pl ea for good cause at any time before the entry of judgment. (§ 1018.) 4 Good cause includes mistake, ignorance, fraud, duress or any other factor that overcomes the defendant’s exercise of free judgment and must be shown by clear and convincing evidence. ( People v. Cruz (1974) 12 Cal.3d 562, 566; People v. Breslin (2012) 205 Cal.App.4th 1409, 1416.) It is not enough that a defendant ha s concluded he or she wrongly assessed the wisdom of the plea bargain or otherwise has had a change of mind. ( People v. Knight (1987) 194 Cal.App.3d 337, 344.) Even “[t]he fact [a defendant] may have been persuaded, or was reluctant, to accept the plea is not suffi cient to warrant the plea being withdrawn. [Citation.] ‘Guilty pleas resu lting from a bargain should not be set aside lightly and finality of proceedings shou ld be encouraged.’” ( People v. Ravaux (2006) 142 Cal.App.4th 914, 919.) However, “[t]rial courts are expressly directed to give a liberal construction to the provisions of section 1018 in the interest of promoting justice.” ( People v. Superior Court ( Giron ) (1974) 11 Cal.3d 793, 796.) A decision to deny a motion to withdraw a guilty or no contest plea rests in the
sound discretion of the trial c ourt and is final unless the defe ndant can show a clear abuse of discretion. ( People v. Superior Court ( Giron ), supra , 11 Cal.3d at p. 796.) We are required to accept the trial court’s factual findi ngs if they are supported by substantial evidence ( People v. Fairbank (1997) 16 Cal.4th 1223, 12 54) and witness credibility determinations if reasonably justified by the record (see People v. Quesada (1991) 230 Cal.App.3d 525, 533).

4 Section 1018 provides, “On applicati on of the defendant at any time before judgment . . . the court may, . . . for a good cause shown, pe rmit the plea of guilty to be withdrawn and a plea of not guilty substituted. . . . This section shall be liberally construed to effect these objec ts and to promote justice.”11 2. The Trial Court Did Not Abuse Its Disc retion in Denying Jackson’s Motion To Withdraw His Plea Based on Duress

a. The trial court did not coerce Jackson to enter a plea
Jackson contends the trial court coerced him to plead no c ontest by repeatedly telling him to accept the offer, asking the pros ecutor to make a better offer, passively threatening him with a life sentence and te lling him it would sign an order allowing him to see his daughter—promising to do what it c ould “to make it happen”—if he agreed to the negotiated plea. Although California law does not proh ibit judicial involvement in plea negotiations, a judge’s participation in pl ea discussions may improperly influence a defendant’s decision to accept a plea agreement. “[W]hen the trial court abandons its judicial role and thrusts itself to the center of the negotiation process and makes repeated comments that suggest a less-than -neutral attitude about the ca se or the defendant, then great pressure exists for the defendant to accede to the court’s wishes.” ( People v.
Weaver (2004) 118 Cal.Ap p.4th 131, 150 ( Weaver ).) Nonetheless, not every instance of judicial involvement in plea ne gotiations is coercive or leads to a plea that is the product of duress. ( Id

. at pp. 149-150.) “Judges can, in a ppropriate cases and in a reserved manner, play a useful part in that process.” ( Id

. at p. 150.)
In Weaver , a child molestation case, the trial judge “went too far,” “[a]t any given time . . . seem[ing] to fill the ro le of judge, jury, defense coun sel, prosecutor, psychiatrist, social worker and victims’ advocate.” ( Weaver , supra , 118 Cal.App.4th at p. 149.) The judge repeatedly urged the defendant to acce pt the prosecution’s plea offer; said he thought the defendant would likely be convicte d and was a pedophile in denial; stated he did not want to see the girls “‘victimized’ agai n” by having to testify; and indicated he would admit evidence of uncharged acts wi th the victims and 24 images of child pornography found on the defendant’s comp uter— “‘damning’ and ‘overwhelming’” evidence the judge described as an ugly, sm elly monster with warts and “‘green stuff dripping from its mouth and the horns”’ that would be brought “‘into the courtroom and put . . . on that table [to] puke all over the place and crap all over the place. . . .’”12 ( Weaver, supra, 118 Cal.App.4th at pp. 135-138.) The Court of Appeal reversed the
denial of Weaver’s motion to withdraw his guilty plea based upon the coercive comments of the trial judge during plea negotiations. ( Id . at p. 136.) Here, unlike in Weaver , the trial court’s remarks were neutral. The court impartially and realistically a dvised Jackson of the sentence he would receive if he were convicted, including actual time likely to be served, specifically observing it had not
heard the evidence and was no t “prejudging anything.” The court did not express an opinion regarding Jackson person ally or his likelihood of being convicted. The court did not urge Jackson to accept the pl ea, but merely told him to se riously consider it, and only pressed him for a decision after he repeatedly asked for more time to decide or for a different deal; changed his mind; and then re fused to cooperate during the entering of his plea.
Jackson’s contention the court took advant age of his vulnerable family situation by stating it would sign the order permitting hi m to visit his daughter if he accepted the deal is disingenuous. On May 27, 2011, afte r the court told Jackson he had to make a decision whether to accept the 15-year plea of fer and permitted him an opportunity to consult with Darden, Darden asked whether Jackson woul d be permitted to visit his daughter. The court responded it was “happy to sign the order” and “call whatever supervisors I can call at the sheriff’s department to make that happen” in direct response to the question. Jackson, however, pressed fo r a bail reduction if he were willing to enter a plea. The court then adm onished Jackson to make the decision whether to accept the plea “independent of the situation with his daughter” so there was no “issue down the
road that there was some kind of duress.” S hortly thereafter the court reiterated Jackson should evaluate the plea offer compared to the risk of going to trial independently of the “sad situation” with his daughter. Under no stretch of the imagination can this be construed as the court conditioning Jackson’s ability to see his daughter on acceptance of the plea offer. Jackson’s argument he was forced to accep t the plea because the court did not permit him to discharge Darden or adequately inquire into their conflict is similarly13 without merit. A nonindigent defendant’s right to discharge reta ined counsel with or
without cause “is not absolute. The trial cour t, in its discretion, may deny such a motion if discharge will result in ‘significant prejudi ce’ to the defendant [cita tion], or if it is not timely, i.e., if it will result in ‘disruption of the orde rly processes of justice’ [citations].” ( People v. Ortiz (1990) 51 Cal.3d 975, 983.) The cour t’s denial of Darden’s request to withdraw as untimely was amply justified here: The case had been pending for a substantial period of time, in part because Jackson had fled; and trial was scheduled to start that day with witnesses subpoenaed, defense counsel decl aring he was fully prepared and potential jurors awaiting voir dire. 5 (See People v. Keshishian (2008) 162 Cal.App.4th 425, 429 [trial court did not abuse discre tion in denying defendant’s request to discharge counsel on day set for tr ial after case pending two and a half years; “[t]hat appellant had inexplicably ‘lost confid ence’ in his experienced and fully prepared counsel did not constitute good cause for gr anting the continuance requested, nor justify the disruption to the judicial process that would have ensued”].) The court did not “summarily and off-handedly” reject the s uggestion of substitute counsel as Jackson contends. Darden’s request to withdraw wa s denied after extensiv e colloquy during two hearings in which the court lis tened to Jackson’s complaints and Darden’s explanation he was fully prepared for tria l; the court summarized the le ngthy history of the case supporting its view Jackson ha d attempted to expedite tria l while the People could not secure Turner’s presence and th en sought to delay it after a bench warrant was issued for Turner and his appearance as a witness assured.
b. Defense counsel did not coerce Jackson to enter a plea A defendant who claims he or she was “subj ect to undue pressure” to accept a plea must demonstrate it was more “pressure than every other defendant faced with serious

5 Indeed, Jackson’s dissatisfaction with Da rden had been steeping for many months. As Jackson explained, “[F]or the past six m onths, your Honor, I’ve been expecting to get a result from a glove, not from somebody’s paperwork.” Whatever the reason for Jackson’s failure to pursue a change of c ounsel earlier, however, th e request was simply untimely on the day of trial.14 felony charges and the offer of a plea bargain.” ( People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) “Lawyers and ot her professional [peopl e] often persuade clients to act upon advice which is unwillingly or reluctantly accepted. And the fact that such advice is unwillingly or reluctantly acted upon is not a ‘. . . . factor overreaching defendant’s free and clear judgment’ of what sh ould be done to find a means to alleviate the situation with respect to whic h the client seeks advice.” ( People v. Urfer (1979) 94 Cal.App.3d 887, 892 [defendant ’s reluctance to follow the advice of his attorney was not a “‘factor overreaching defendant’s free and clear judgment’”].) Jackson primarily contends his belief Darden was unprepared for trial and
Darden’s failure to discuss his defense stra tegy with Jackson unduly influenced him to accept the plea offer. The trial court, however, found Darden was prepared for trial, and its assessment of Darden’s credibility is re asonably justified by the record. Darden’s emphatic recommendation Jackson should take the 15-year plea offer—that he “would not risk [his] son’s or brother’s life given the evidence” in the case at that time—was
based on Officer Bonilla’s preliminary hearing testimony, which st rongly implicated
Jackson: Bonilla saw Jacks on walking hurriedly down the driveway of a house near Turner’s almost immediately after the burglar y had been reported; Jackson appeared to
discard items that were later discovered to be a gun stolen from Turner and gloves with
DNA that matched Jackson’s. As Darden la ter told the court, had he known Atkins would later confess he likely would not have recommended Jackson accept the plea. But
the state of the evidence at th e time Darden advised Jackson to accept the 15-year plea offer, compared to the risk of a 25-year-to-lif e sentence, fully justified Darden’s strongly
worded recommendation that Jackson accept the offer. 6

6 Under no circumstances was it appropriate for Darden, if true, to call Jackson “a stupid-ass nigger” for not wanting to accept the offer. Even if the comment reflected Darden’s deeply held belief, based on years of experience in criminal law, that Jackson would be best served by accepting the plea, it was offensive and improper.15 3. The Matter Must Be Re manded To Dete rmine Whether Jackson Should Be Permitted To Withdraw His Plea Based on Atkins’s Confession

a. Clear and convincing newly discover ed evidence of factual innocence is a proper ground for withdrawing a guilty plea Ordinarily, in considering a motion to wit hdraw a guilty or no contest plea, “‘the doctrines of “presumptive innocence” and “proof beyond a reasonable doubt” are inapplicable, since the defend ant had already admitted his gu ilt by his plea of guilty.’” ( People v. Nance (1991) 1 Cal.App.4th 1453, 1457.) “‘A plea of guilty, of course, is the most serious step a defendant ca n take in a criminal prosecuti on. . . . [B]ecause there will be no trial the plea strips the defendant of such fundamental protections as the privilege against self-incrimination, the ri ght to a jury, and the right of confrontation. [Citations.] As to the merits, the plea is de emed to constitute a judicial admission of every element of the charged offense. . . . [Citation.] Finally, it severely restricts the defendant’s right to appeal from the ensuing judgment.” ( People v. Voit (2011) 200 Cal.App.4th 1353, 1363- 1364.) Nonetheless, “‘“ the withdrawal of a plea of guilty should not be denied in any
case where it is in the least evident that the ends of ju stice would be subserved by permitting the defendant to plea d 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 pl ea from guilty to not guilty.”’” ( People v. Ramirez (2006) 141 Cal.App.4th 1501, 1507 ( Ramirez ); accord, People v. McGarvy (1943) 61 Cal.App.2d 557, 564.) Accordingly, although not typically listed as an instance of “good cause” that will support a motion to set aside a guilty or no contest plea pursuant to section 1018, perh aps because it so rarely occurs, 7 a defendant should be permitted to withdraw his or her plea before ju dgment if there is sufficiently compelling new evidence of factual innocence. (See People v. Singh (1957) 156 Cal.App.2d 363,

7 Although case law generally identifies goo d cause under secti on 1018 to include mistake, ignorance, fraud, duress “or any othe r factor overcoming the exercise of free judgment” (e.g., People v. Cruz, supra , 12 Cal.3d at p. 66), no case has excluded newly discovered evidence of factual innocence as a ground for withdrawal of a guilty plea.16 366 [trial court did not abuse its discretion in denying motion to withdraw plea based on newly discovered evidence negating element of crime because defendant offered no affidavits and failed to establish grounds for motion by clear and convincing evidence];
cf. In re Crumpton (1973) 9 Cal.3d 463, 468 [notw ithstanding general principle pleas should not be overturned lightly, defe ndant “should not be condemned to life imprisonment simply because he pleaded guilty under a mist aken legal understanding of the kidnapping statute”]; see also § 1018 [“[t]his section shall be liberally construed . . . to promote justice”].) Newly discovered evidence, of course, is expressly identified as a ground for granting a new trial pursuant to section 1181, subdivision 8, when the evidence proffered
is such as to render a different resu lt probable on a retrial of the case ( People v. Verdugo (2010) 50 Cal.4th 263, 308), based upon the tria l court’s evaluation of both its materiality and credibility. ( People v. Delgado (1993) 5 Cal.4th 312, 328-329; see People v.
Williams (1962) 57 Cal.2d 263, 274-275 [although claim of newly discovered evidence as a ground for a new trial is “uniformly ‘l ooked upon with disfavor,’” when the “‘newly discovered evidence’ contradicts the ‘stronge st evidence introduced against’ defendant [citation] and comes from an unexpected so urce [citation], it would appear proper that
defendant should have the o pportunity of trying to pres ent such evid ence for the
consideration of the trier of th e facts”].) And federal courts, applying rule 11(d)(2) of the Federal Rules of Criminal Procedure, which au thorizes a court to a llow the defendant to withdraw a plea of guilty or nolo contendere before imposition of sentence if “the defendant can show a fair and just reas on for requesting the withdrawal,” have recognized newly discovered ev idence “that at least could have plausibly motivated a reasonable person in [the defe ndant’s] position not to have pled guilty had he known about the evidence prior to pleading” as a proper ground fo r withdrawal of a plea. (See
U.S. v. Garcia (9th Cir. 2005) 401 F.3d 1008, 1011-1012 [“the generous ‘fair and just reason’ standard does not require that th e defendant show that the new evidence
exonerates him or that there is a reasonable probability he wo uld not have been convicted had the case gone to trial”]; U.S. v. Groll (7th Cir. 1993) 992 F. 2d 755, 758 [“when17 assertions of innocence are substantiated by evidence, the district court must do more than simply deny the motion out of hand: a court must ei ther permit the defendant to withdraw her plea and go to trial, conduct an evidentiary hearing on the matter or deny the motion with an explan ation as to why the evidence is insu fficient or incredible”].)
Ramirez , supra , 141 Cal.App.4th 1501 , although distinguis hable, supports our
conclusion clear and convinci ng evidence of factual inno cence constitutes good cause
under section 1018. In Ramirez defense counsel discovered a previously undisclosed supplemental police report after the defendant had pleaded no contest to armed robbery and evading arrest in exchange for the dism issal of carjacking and unlawful driving charges. ( Id. at pp. 1503-1504.) The report contai ned witness statements indicating the defendant was not present during the carjacki ng and had been an unwilling passenger during a later police chase. ( Id. at pp. 1504-1505.) Noting the “state’s suppression of
favorable evidence is an ex trinsic cause which may overcome the exercise of free judgment,” our colleagues in Division Eight of this court held the defendant established good cause to withdraw his plea because the prosecution had ample time prior to the plea to turn over the report. ( Id. at pp. 1506-1507.) To be sure, in Ramirez the state had suppressed existi ng evidence that would likely have affected the defendant’s willingness to plead; no such miscon duct occurred in the case at bar, where the eviden ce did not come into existe nce until after the plea. Nevertheless, as the Ramirez court explained, “[t]he new information was favorable to appellant and cast the case against him in a di fferent light by significantly weakening the evidence supporting the carjacking charges.” ( Ramirez , supra , 141 Cal.App.4th at p. 1506.) Atkins’s confession, if credible , had at least as powerful an effect on the residential burglary charge agai nst Jackson. Indeed, here it is clear Jackson resisted admitting his guilt and only reluct antly accepted the plea offer because he felt he had no choice under the circumstances. (See U.S. v. Garcia (9th Cir. 2005) 40 1 F.3d 1008, 1012 [“[l]ike the voluntariness of th e plea, a defendant’s claim of innocence can clearly be
considered in support of his motion to withdraw a plea ”].) Atkins’s confession would very likely have changed that decision—ev en Darden indicated he would not have18 advised Jackson to plead had Atkins made his confession earlier. (Cf. In re Clark (1993) 5 Cal.4th 750, 766 [newly di scovered evidence is a basis for habeas relief if “it undermines the prosecution’s entire case” a nd “‘casts fundamental doubt on the accuracy and reliability of th e proceedings’”].)
b. Defense counsel’s failure to provide the court with Atkins’s declaration was ineffective assistance of counsel Both Judge Egerton, who took Jackso n’s plea and presided over the initial hearings following the filing of his motion to withdraw based in part on Atkins’s confession, and Judge Johnso n, who ultimately denied the motion, recognized a defendant should be permitted to withdraw a plea if ther e is compelling evidence of factual innocence. As Judge Egerton said, “ If he’s truly innocent—people enter pleas for various reasons—if he’s truly innocent, then, obviously, I do not think the plea should stand.” As discussed, however, Judge Eger ton had tentatively co ncluded Jackson was not, in fact, innocent and Atkins’s confession was disingenuous, based on her reading of
his declaration and her evaluation of the ev idence from the preliminary hearing that pointed to Jackson’s direct involvement in the burglary. 8 Although Judge Egerton initially did not see any reason to take test imony from Atkins “because I don’t believe Mr. Atkins can explain what the police and a completely independent witness, Miss Parham, saw on April 24th of 2009,” she ultimately grante d defense counsel’s request to hear from Atkins so the court could evaluate his credibility. Due to the court’s
trial calendar and other time constraint s, the matter had to be continued. By the time the proceedings resumed on the merits of the motion to withdraw, the matter had been transferred to Judge Johnson. Atkins, who had been in court during earlier proceedings, was not present; and for wh atever reason the cour t had before it only the police report of his confession, not his de claration. Jackson’s new defense counsel also did not have the complete file, whic h included declarations from both Atkins and Darden, had not heard the audi o recording of Atkins’s polic e interview and was unable to

8 Judge Egerton bluntly st ated, “[F]or the reasons I just spent 15 minutes elaborating, I do not thi nk he’s innocent at all.”19 provide this additional inform ation to the court. Having only the police report, which questioned Atkins’s honesty, the court denied the motion, ruling that sufficiently compelling new evidence of Jackson’s innocen ce had not been shown: “I think the witness would have to testify so I could determine his credibility . . . . It would have to
come before me. It’s not before me.”
Jackson contends defense counsel was inad equately prepared for the hearing on the motion to withdraw his plea and provided constitutionally ineffective representation by insisting Atkins’s credibility was not german e and failing to provid e the court with the materials necessary to properly evaluate his ne wly discovered evidence claim. We agree.
“‘To establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that coun sel’s representation fell below an objective standard of reasonableness under prevailin g professional norms, and that counsel’s deficient performance was prejudicial, i.e., th at a reasonable probability exists that, but for counsel’s failings, the result would have been more favorable to the defendant.’” ( In re Roberts (2003) 29 Cal.4th 726, 744-745; see Strickland v. Washington (1984) 466 U.S. 668, 694 [104 S. Ct. 2052, 80 L.Ed.2d 674].) “‘The burde n of sustaining a charge of inadequate or ineffective represen tation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter.’” ( People v. Karis (1988) 46 Cal.3d 612, 656.) “‘“Reviewing courts defer to counsel’s reas onable tactical decisions in examining
a claim of ineffective assistan ce of counsel [citation], and there is a ‘strong presumption
that counsel’s conduct falls within the wide range of reasonable prof essional assistance.’” [Citations.] “[W]e accord great deference to counsel’s tactical decisions” [citation] and we have explained that “courts should not se cond-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.” [Citation.] “Tactical errors are generally not deemed reversible, and counsel’ s decisionmaking must be evaluated in the context of the available facts.” [Citation.] [¶] In the usual case, wher e counsel’s trial tactics or strategic reasons for challenge d decisions do not appear on th e record, we will not find20 ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.’” ( People v. Jones (2003) 29 Cal.4th 1229, 1254.) In denying Jackson’s motion to withdraw his plea, the trial court was clearly influenced by the lack of direct evidence fro m which it could assess Atkins’s credibility.
Atkins’s declaration was such evidence. Defe nse counsel’s failure to know that Atkins’s declaration was in the record and to provide it to the court, especially since defense
counsel had at least four months to review the record and repeated ly requested that the hearing be continued, fell belo w an objective standard of reasonableness. It was not a tactical decision, and there could be no co nceivable reason for counsel’s omission other than oversight.
Within the context of this case, defense counsel’s in effective assistance was prejudicial. Because the deci sion whether to grant a motion to withdraw a plea pursuant
to section 1018 rests within the broad discretion of the trial court (see, e.g., People v.
Wharton (1991) 53 Cal.3d 522, 585 [trial court’ s denial of a motion to withdraw a guilty plea will not be disturbed on appeal unless the court’s abuse of that discretion is “clearly demonstrated”]), it would be premature for us to determine it is re asonably probable the court would have permitted Jacks on to withdraw his plea if At kins’s declaration had been proffered (or if Atkins had been present in c ourt and allowed to testify). What is certain
is that Jackson’s claim woul d not have been summarily de nied; the court would have evaluated it on the merits, weighed the credib ility of Atkins’s conf ession and evaluated it together with the preliminary hearing evidence to decide wh ether “the ends of justice
would be subserved by permitting [Jackson] to plead not guilty . . . .” ( Ramirez, supra , 141 Cal.App.4th at p. 1507.) Jack son is entitled to that opportunity. 9

9 Although urging we affirm the trial cour t’s denial of Jackson’s motion to withdraw his no contest plea, if we remand the case for furt her proceedings—as we do—the Attorney General contends the trial court should reevaluate Jackson’s request on the written submissions without holding an evidentiary hearing. (Cf. People v. Superior Court ( Zamudio ) (2000) 23 Cal.4th 183, 201 [“Petitioner cites no au thority specifically requiring courts to hold live evidentiary hearings on secti on 1016.5 motions or, more generally, on plea withdrawal motions. On the other hand, California law affords21 DISPOSITION The judgment is reversed, and the matter remanded for the trial court to determine
whether to conduct an eviden tiary hearing on Jackson’s mo tion to withdraw his plea, including taking testimony from Atkins if he is available and willing to testify, or to
decide Jackson’s motion ba sed on Atkins’s declarati on and any other supporting
documents.

PERLUSS, P. J.

We concur:

ZELON, J.

SEGAL, J. *

numerous examples of a trial court’s aut hority, in ruling upon motions, to resolve evidentiary disputes without resorting to live testimony.”].) While we agree an evidentiary hearing is not requ ired, because Atkins’s credib ility is the critical issue, it certainly would be an appropriate exercise of the trial court’s discretion to permit Atkins to testify if he is still willi ng and available, as Judge Egert on had intended, and to review the audio recording of his police interview, which the prosecutor ar gued demonstrated he was not believable. The deci sion how to proceed, howeve r, must be made by the trial court in the first instance.

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